#### JOHN BAILEY, SEN’R. vs. THOMAS MILLER, EX’OR. &c.

Where a father made a fraudulent conveyance of slaves to liis son, an infant oí tender years, and then died, and the slaves were taken possession of by the grandfather of the infaiit, for the usé and benefit of the infant — Held, that the grandfather was liable to be suéd by a creditor of the deceased father as executor de son tort.

If a fraudulent donc'e of goods disposes of them to another, who accepts them’ Iona fide upon a purchase, or even to keep for the donee, the vendee or bailee would not be executor de son tort. But an infant of tender years can1 neither accept such a gift, nor constitute an agent to keep possession of it for him.

An infant of tender years cannot be an executor, nor be sued as such.

It is not the paper title merely that makes one an executor of liis own wrong," but it is the disposition, or the'possession and occupation of the effects that , do it.

The case of Twnier r.'Child, 1 Dev. 25; cited and approved."

Appeal from the'Superior Court of Law of Cataden coün-' ty, at the Spring Term, 1845;' his Honor Judge Battle presiding.

This was an action of debt against the defendant, to charge him as executor de soil tort of Francis Ackiss, tipon a judgment obtained against the latter in his life time, at'June term 1840 of Pasquotank County Court. Upon the trial the evidence was, that the slaves, with the intermedling with whom the defendant was sought to be charged as executor of his own1 wrong, belonged to and were ih the possession of the said Ackiss in the year 1840 ; that, afterwards and in tiie life time’ of Ackiss, the said'slaves went into the possession of the defendant who held and still continues to hold them for his infant grandchild, under a deed of gift, executed by Ackiss to the said child, who was his son, then of very tender years in the arms of a'nurse ;; that this deed bore date the 5th of February 1840 and was witnessed by the defendant and kept and exhibited by him, as the title, by which he claimed the possession of the slavesthat, some five or six weeks after the *445date of this deed, Ackiss sold all the other slaves which he owned, as he said for the payment of his debts, and that from that time he had no other property besides the slaves embraced in the said deed; that, at the June term of the County .Court of Pasquotank next following, he confessed the judgment, upon which this suit is brought, for a debt due by a note given in 1839 ; and that he afterwards died insolvent, and no administration has been taken out upon his estate.

The defendant objected to a recovery upon the grounds, 1st That he could not be charged as executor of his own wrong, because he did not claim the slaves in question for himself,* but for his grandchild under a deed to the latter;; 2dly. That there was no fraud in the deed of gift to the donee.

The court instructed the jury, that, however it might be^ if the donee were of sufficient age to take charge of the slaves and hold them himself, yet in this case, where he was a mere infant of such tender years as to be entirely incapable of acting for himself, the defendant, his grandfather, might be charged, as executor of his own wrong, for intermeddling with the slaves, if the deed of gift was fraudulent as against the plaintiff. The question of fraud was then submitted to' the jury, who found that the deed was fraudulent and gave a verdict for the plaintiff. Judgment being rendered pursuant thereto, the defendant appealed;

No counsel appeared in this court for the plaintiff

Badger and A. Moore for the defendant.

Ruffin, C. J.

The conveyance of the father to his son'’ was voluntary and made when the donor wasjnsolvent or on-the brink of insolvency, and was clearly void as to debts existing at the time. It has been so found by the jury. Therefore, as respects the present plaintiff the slaves are still regard-ed as the goods of the deceased debtor. There is no doubt-that a fraudulent donee is liable, as executor of his own-wrong. Edwards v. Haskin, 2 T. R. 587. But it is said, that, although that be true, yet one who takes possession as-*446the agent of the fraudulent donee, does not become executor’,’ as ^as a color for his possession, which gives a char-’ acter to it, and shows that he did not intend to administer the goods, or in any manner to treat them as the effects of the deceased which is said upon the authority of Turner v. Child, 1 Dev. 25. That case, in which the doctrine held by the majority of the court seems to us to be carried to the utmost extreme, does not we think apply to the present. There, every thing was assumed to be bona fide, and that the agent continued to act under a sense of duty, and without being aware that the authority, which he derived from his principal, ceased at his death. His acts had a lawful beginning, and that was sufficient to excuse him, as the court thought. But the contrary is the cáse here. The origin and continuance of the defendant’s possession are tainted with fraud, and without colour of authority from any one. If indeed, the fraudulent donee disposes of the goods to another, who accepts them bona fide upon a purchase, or even to keep for the do-nee, the vendee or bailee would not be executor de son tort. Com. Dig. Administrator, C. But that is because there is apparently no wrong in any one in that transaction, and the posessor has no reason to consider the goods as being of the estate of the deceased. In this case, however, it is begging the question, to call the defendant the agent of the donee. He is not his agent. He was never constituted his agent by any act of the donee, who had no capacity for that purpose. The defendant is in no way the agent, except so far as he made himself so. His authority was not conferred on hito, but was officiously assumed by him, and but pretended. Therefore, he cannot protect himself under the allegation, that he derived the goods under a person, who claimed title to them, and being in possession, assumed to dispose of them. On the confrary, the donee here was incapable of assenting to the gift, did not take possession, and could not take it, and was of such tender years that he could not be executor, nor be sued as such. If then, the defendant be not liable in this action, no one would be; which is another reason, why the case is *447not within the rule, that a bailee of an executor of his own wrong does not also become such executor: since in such case, there is a person liable to the creditors. But here there is none, unless the defendant be. For, if the grand-child were of age to assent to the deed and even to fill the office of executor, he could not be sued by the creditor ; as it is not the paper title merely that makes one an executor of his own wrong, but it is the disposition, or possession and occupation of the effects that do it. Here the infant sets up no title and has no possession ; but the defendant takes it on himself to set up a title on behalf of the infant, to take possession and to defend it for him, although the infant, if a donee at all, is a fraudulent donee. Such unasked interference must be at the defendant’s risk; for he had no right or duty to take charge of these negroes, as the property of his grandson, unless they should turn out to be the grandson’s. His possession renders him liable to the deceased’s creditors, as executor de son tort, in the same manner as it would enable the true owner of the slaves, if a third person, to maintain detinue for them. If this were not so, every insolvent might, by collusion with his near reb atives, defeat his creditors by conveyances to his infant children.

Per Curiam, Judgment affirmed.