#### ROBERT B. JONES & AL. vs. MARY LOFTIN & AL.

testator having a suit pending, which he had instituted to recover certain he had purchased and for which he had partly paid, directed his executor, if the slaves should be recovered, to soil them, and, out of the proceeds, pay the remainder of the purchase money, and the surplus, if any, be left to his wife and children. The executor suffered the suit, which was against the vendor, to abate, and surrendered all right to the slaves, upon receiving back what had been paid by his testator, and the bonds still remaining unpaid for the residue of the purchase money. Held that, before the legatees could recover the slaves from the executor, or from the vendor, against whom the suit at law had been brought, they must shew that they had been injured by some fraudulent act or improper dealing of the executor with the other party.

This cause was removed by consent from Davidson Court of Equity, at Fall Term, 1S43, to the Supreme Court.

The facts, as they appeared from the pleadings, were these. Sarah Loftin. in February, 1818, for .$750, sold to Thomas Jones, (the father of the plaintiffs and the testator, under whose will they claimed,) the slaves Fan and her children Ham and Joe; and she then executed to him a bill of sale for the said slaves. The slaves, being at that time hired out, were not delivered to the vendee, nor was the purchase-money paid, except'$150. Thomas Jones, sometime after the sale, took the slave Ham into his possession by force, and instituted a suit at law against Sarah Loftin for the recovery of the others. Pending that suit, Jones died in 18L9, leaving a will, in which he appointed three executors who qualified. These executors permitted the suit to abate, and compromised Ihe dispute about the slaves with Sarah Loftin. She gave up to the executors the bonds she held against Jones for the purchase money, and also returned them $150, the sum Jones had before paid her; and the executors surrendered to her the boy Ham and the original bill of sale, intending thereby to rescind the contract and release to her all claim for the slaves. Thomas Jones in his will directed his executors, that if a recovery of the slaves *137should be effected in the suit which he had commenced, they should sell the same at public auction on a credit of twelve months, and apply the purchase money, in the first place, in paying the balance of the debt he owed for their original purchase, and the surplus, if any, with the residue of his property, to go equally to his children and to his widow, who was left an executrix,

This bill w as filed by the children of Thomas Jones against their mother, the surviving executrix of Thomas Jones, and against the representatives of Sarah Loftin, now deceased, who had the said slaves in their possession, and prayed for an account of the hires and profits of the slaves, and that the slaves might be delivered up to the plaintiffs and their hires &c. accounted for and paid over, alleging that the present possessors were in equity mere trustees for the plaintiffs.

The answers of the defendants admitted the facts as above stated to be substantially true, and denied any fraud or improper conduct in the compromise, or that the plaintiffs were injured thereby.

The cause was set for hearing, and transmitted to the Supreme Court.

Mendenhall for the plaintiffs.

No counsel for the defendants.

Daniel, J.

It is true, that, in this court, the plaintiffs, as legatees of Thomas Jones, had a right to pursue the property in the hands of the defendants, who are only volunteers under Sarah Loftin, if there had been any fraudulent combination between the executors of Jones and the said Sarah Loftin to deprive them of their legacies in the slaves, or any interest that they might have in the sale of them under the direction in their father’s will. But there is no evidence in the cause to shew, that the slaves were worth, at the time of the re-sale, more than the executors obtained for them, or that they would have brought more at public sale at twelve months’ credit. There is no pretence, that the executors derived to themselves the smallest benefit by the re*138gale of the slaves. Before the plaintiffs could ask of this court a decree in their favor, it behooved them to shew, that they had been injured by some fraudulent act or improper •dealing of the executors with Satah Loftin, respecting the slaves. Nothing of that kind appears in the evidence ; and .the bill must therefore be dismissed, with costs.

Per Curiam, Bill dismissed.