#### R. B. SMITH, TRUSTEE, &c. vs. JESSE CHITWOOD.

A. made an assignment by deed of certain slaves to B., upon trust to sell and pay certain debts, and by the deed A. was to retain possession, but not to sell without the consent of B., and upon payment of all the debts by A. the assignment to be void. A. gave notice to B. of his intention to sell one of the slaves, to which B. declared neither his consent nor disagreement, and afterwards A. sold in the absence of B : — Held, that the sale passed no title as against B., though it might have been otherwise, had B. been present.

After the sale, an endorsement was entered upon the deed of the payment of the last debt secured thereby: — Held, that this was no evidence to support the sale.

(The cases of Lentz v. Chambers, 5 Ire. 587; West v. Tilghman> 9 Ire» 163; and Bird r. Benton, 2 Dev. 179, cited and approved.)

This was an action of trover for three slaves — Plea—not guilty — tried before his Honor, Judge Ellis, at Spring Term, 1853, of Lincoln Superior Court of Law, to which county the case had been removed from Cleveland county.

*446Upon the trial, the plaintiff exhibited in evidence a deed of trust executed 12th March, 1849, for the slaves in controversy, from one Weathers, for the purpose of securing certain debts therein named ; and he then proved a conversion by defendant on 15th February.

The defendant exhibited in evidence, and claimed title under a bill of sale from said Weathers to himself for the said slaves, dated 4th June, 1849, acknowledging as a consideration the sum of $700. And his Honor being of opinion that this bill of sale did not convey title to the defendant, as against that of the plaintiff derived from said deed of trust, the defendant then proposed to show a sale and actual delivery of the slaves by Weathers as the agent of the plaintiff. For which purpose said Weathers was called as a witness, and testified that after he had agreed with the defendant for the purchase money of the slaves, he told him that he could not convey title to them without the consent of the plaintiff, and for the purpose of obtaining his consent, they went together to the'plaintiff; that he spoke to the plaintiff on the subject of selling the slaves to the defendant, when he, the plaintiff, said that he (Weathers) might do as he pleased about the matter, and that he (the plaintiff) “had accepted the deed of trust,” or that “ it was of no account ”■ — the witness was not positive which expression he used. The witness and the defendant then went off, when the bill of sale referred to, was executed.

The defendant contended that the clause in the deed of trust, to wit, “ that it is agreed between the parties, &c., that the said Weathers shall keep the said negroes in his possession, but in no wise trade and sell any of them, without the consent of the said R. B. Smith,” constituted Weathers the agent of Smith to sell the slaves; and further, that the plaintiff knew the design of Weathers, and did not object; and that this was such an approval as to make the act his own. And the defendant contended further, that as Weathers had sold other slaves conveyed by his said deed of trust to one Ellis, (which fact was proved,) this was evidence of a general agency to sell under the trust ,• and certain payments which were endorsed on the trust, were also relied upon as evidence for the same purpose.

It was also argued by the defendant’s counsel, that according *447to the terms of the deed of trust, to wit, “ that if at any time the said Weathers shall pay off and discharge the aforesaid debls &c., then this indenture shall be void.” Weathers, after paying off' the debts specified therein, had a right to sell in his own name, and the endorsement of a payment by the plain tiff as trustee to Weathers, of a sum of money received from a sale of property mentioned therein, (and the same appeared on the trust,) was evidence of such discharge of ail the debts named in the trust, as Weathers was to be last paid. Upon this point the plaintiff offered evidence — two of the original notes of Weathers named in the trust cancelled — of a part of debts having been paid by one of the sureties therein.

His Honor charged the jury that the bill of sale offered by the defendant from Weathers passed no title to the slaves ; for, without expressing any opinion as to the effect of that part of the deed of trust, which rendered the instrument void, when Weathers should pay all the debts mentioned in it, to transfer a title to him without a reconveyance, it was sufficient for the purposes of this case, to say that there was no evidence of a payment of all the debts mentioned in the deed of trust by Weathers — that the endorsement on the deed, of a payment to Weathers by the trustee, was no such evidence.

His Honor further charged there was no evidence of a sale and actual delivery by Weathers as the agent of the plaintiff. And that the conversation testified to by Weathers, furnished no inference of any such agency conferred by the plaintiff on Weathers to sell the slaves for him, but rather amounted to a disclaimer of title. That there was no clause in the deed of trust appointing Weathers an agent to sell •, but the one relied on forbid his doing so, unless the plaintiff should consent thereto — leaving the plaintiff at liberty to appoint him or not as he might think proper. That the fact of Weathers having sold other negroes, named in the trust, to another person, was no evidence of an agency to sell the slaves in controversy ; and though the plaintiff knew that Weathers intended to sell to the defendant, and knew of the sale when it was made, and did not object, yet his knowledge would not have the effect to divest him of the title to the slaves : And that upon the evidence the plaintiff was entitled to recover.

*448There was a verdict accordingly for the plaintiff, and from the judgment rendered thereon, the defendant appealed to the Supreme Court.

Craige, Bynum and Shipp, for the defendant.

Guión and Lander, for the plaintiff.

Battle, J.

We approve of the decision of his Honor in the Court below upon all the questions raised by the defendant’s objections to the plaintiff’s recovery ; and very much for the reasons assigned by him. The only means by which the defendant could resist the title acquired by the plaintiff under the deed in trust, were to show that Weathers, the grantor in that deed, had acted as the plaintiff’s agent in making the sale to him, or that the legal title to the slaves in question had revested in the said grantor, by the payment of all the debts mentioned in the deed in trust at the time the sale was made. None of the circumstances relied upon by the defendant to show the agency of Weathers, were sufficient to be left to the jury for that purpose, and the entry endorsed by the plaintiff on the deed in trust adverted to, for the purpose of proving that the debts therein had been fully paid, was made after the sale by Weathers to the defendant. It did not, therefore, of itself, afford any evidence that the said debts had, at the time of such sale, been fully paid off and discharged ; and the other circumstances of the case rather repelled than supported such an inference. But it is contended by the defendant’s counsel, that the plaintiff knew of the design of Weathers to sell the slaves and did not object, and that this was such an approval as to make the act his own; and for this proposition the case of Lentz v. Chambers, 5 Ire. Rep. 587, is cited and relied upon. Had not the plaintiff expressly declined to give Weathers authority to sell the slaves, and had he been present at the sale, there might be much force in the argument; but we cannot infer an agency from the circumstances deposed to by Weathers, and the absence of the plaintiff at the time of the sale prevents the applicability of the principle established by tbe cases of Byrd v. Benton, 2 Dev. Rep. 179, and Lentz v. Chambers, above referred to. Besides this, the case of West v. Tilghman, 9 Ire. Rep. *449163, is a direct authority to show that his title to the slaves was not divested by what occurred between him and Weathers.

Pee. -Curiam. Judgment affirmed.