#### OLIVER BRAME AND OTHERS against ANDERSON F. BRAME.

Where one is entitled to a contingent interest in two slaves, under a deed, and afterwards the same grantor makes another deed,' conveying the same slaves and much other property in trust for the prior grantee and others, giving an indefeasible interest in the whole to each one, and such prior grantee acts as trustee, sells all the other property but the two slaves, distributes the proceeds, and takes his share of them, it was Held that he was to be considered as having abandoned his claims under the former deed, and, therefore, that the two slaves must be sold under the second deed, and distributed as the other property had been.

Appeal from a decree made by bis Honor, Judge Caldwell, in the Court of Equity of Warren County, at its Pall Term, 1855.

*281William Brame, the father of the plaintiffs and the defendant, in August, 1826, executed the following deed, viz:

“Know all men by these presents, that I, William Brame, of the County of Warren, and State of North. Carolina, for the good will, love and affection which I have and bear to my wife, Nancy Brame, and my children, Anderson F. Brame, Ilenry Brame, James Brame, Oliver Brame, Susan Brame, Sally Brame, William Brame, Anne Brame, and Marcus Brame, and for the further consideration of one dollar to Mm in hand paid by the said Anderson F. Brame and Henry Brame, trustees by me appointed, the receipt whereof I do hereby acknowledge, have bargained and sold to the said Anderson F. Brame and Henry Brame, their heirs, executors and assigns, the following negro slaves, to wit, Tab, Will, Milly, Henderson, young Tab, John, Silva and Peter, with the further increase of the said female slaves to them,” &c., with a clause of warranty. “In trust, nevertheless, first: the aforesaid trustees are to permit my wife Nancy to use and enjoy the profits of the said slaves for her support, and the support and maintenance of my three daughters, Susan, Sally and Anne, for and during the natural life of my said wife Nancy; and after her death, the said trustees are to distribute the aforesaid negro slaves, and the future increase of the females thereof, as follows: to each of my children before mentioned, equally, share and share alike; and for the purpose of making this distribution, as the said Anderson and Henry will be interested, my friend, Henry Fitts, shall appoint three persons to divide the said negroes, and that division shall be good. The part that shall be divided to my son Oliver Brame, he is not to take, but his part is to be retained and taken into possession by the said Anderson F. Brame and Henry Brame, (in trust for the support of Oliver, during his life,) and after the death of said Oliver, what remains in the hands of the trustees is to be equally divided amongst the rest of the children.

“Two of the above conveyed negroes, John and Silva, are now in the possession of Anderson F. Brame, which negroes, *282said Anderson is to keep possession of until the death of my said wife, Haney, and myself.”

In March, 1821, the donor had made to Anderson F. Brame, a deed for a tract of land containing 210 acres, reciting a consideration of $900 as well as natural love and affection, (describing it,) the habenckwn of which is as follows: “ to have and to hold the said tract or parcel of land, with the appurtenances thereunto belonging, unto the said Anderson, his heirs and assigns, to the proper use and-behoof of him, the said Anderson, his heirs and assigns forever, from and after the death of the said William, and Haney Brame, his wife,” with a clause of general warranty superadded. The deed then proceeds : “ And the said "William cjoth further covenant and agree with the said Anderson, that for and in consideration of the said Anderson’s permitting him, the said William, to have, hold, and enjoy the premises herein contained, for and during the natural life of the said William, and Haney, his wife, that the said Anderson, or hisiassigns, shall have, hold, and enjoy, during the natural life of him, the said Anderson, a certain tract or parcel of land adjoining the above, [describing it,] containing 8acres, more or less, together with two ne-groes, to wit, John, a negro boy, and Silva, a negro woman, upon condition nevertheless, that if at airy time hereafter, the said William should be disposed to relinquish and quit claim to the said Anderson, of all the interest reserved to him, the said William, in the two hundred and ten acres above mentioned, then the interest and estate of the said Anderson in the 87£ acres above mentioned, aud the two negroes, viz., John and Silva, to cease, and the property to return to the said William.”

Haney, the wife of the grantor, died in the month of July, 1846, and William, the grantor, died in the year 1850. In the winter following the death of Mrs. Brame, by consent of all the parties, all the said slaves, except John and Silva, were sold by the trustees, and the proceeds distributed among the children of William Brame, as above enumerated, except the share of Marcus, who had died intestate before that time, and *283his share rvas retained by Anderson, one of the trustees. The plaintiffs and defendant are his next of kin. At the time of the sale of the slaves, John and Silva were not sold, owing to some opposition by the defendant Anderson E. Brame. About six months after the death of Mr. Brame, the woman Silva died. Silva had remained in the possession of the defendant Anderson, up to the time of her death, and John has remaim ed in his possession up to the present time, used and claimed by him. The bill was filed on 26th September, 1854.

The plaintiffs allege that the slave John has been profitable, and made large gains for the defendant; that shortly before this suit was brought, they called upon him to make sale of the slave John, and distribute the proceeds according to the deed in trust; but he has refused to do so, claiming him as his own. The prayer of the bill is for an account of the lures of John and Silva, and also for the value of Silva, whom he ought to have sold before the time of her death; that John be surrendered, to be sold, and the proceeds divided according to the deed of 1826, and for general relief.

The answer of the defendant sets up the deed of 1821, and also insists upon the statute of limitations.

Plaintiffs, anticipating the first ground of defense, urged in their bill, that the defendant, having acted as trustee under the deed of 182&, by selling the property and distributing the proceeds according to the provisions of that deed, and having also himself, taken a benefit under it, is estopped from setting up the former inconsistent deed of 1821.

There was replication to the answer.

The cause was set for hearing on the bill, answer, former orders and exhibits ; and coming on to be heard, his Honor declared his opinion to be in favor of the plaintiffs, and decreed accordingly. Erorn which judgment defendant appealed.

Moore and Matón, for plaintiffs.

Miller, for defendant.

Pearson, J.

By the deed of 1826, sundry slaves, includ*284ing John and Silva, were conveyed to the defendant, in trust, to divide them among the children of the donor, after the death of his wife, with an express reservation of the use of the slaves John and Silva to the defendant, during the life of the donor and his wife. The defendant was a party, to this deed, acted under it as trustee, sold all the slaves, except John and Silva, in pursuance of its provisions, and divided the proceeds of the sale among the children of the donor, retaining a share, (he being one of the children).

How, apart from the doctrine of election, upon which there is much learning, and according to which, if a testator, or donor, give to A, the property of B, and give to B, other property of the testator or donor, the latter is not allowed to claim the bounty of the testator, or donor, and also to set up claim to his own property, whereby to disappoint the bounty intended for A, the idea that the defendant can, after acting under, and taking benefit from, the deed of 1826, be allowed to set up claim to the two slaves, John and Silva, under the deed of 1821, shocks all notions of common honesty, and, as is said in Sasser v. Jones, 3 Ire. Eq. 19, amounts to a gross, and palpable fraud.

"We are not, however, driven, as in Sasser v. Jones, to the necessity of imputing to the defendant actual fraud, and prefer to reconcile the matter in this way; i. e., the reservation to the defendant, in the deed of 1826, of an estate for the life of the donor and his wife, was accepted, and considered -by the defendant, together with his share in the division under that deed, as^i fair equivalent for the estate during his own life, to which he was entitled under the deed of 1821, but which was subject to a condition. In other words; he was willing, and did surrender an estate for his own life, which was subject to a condition, in consideration of an absolute estate for the lives of his parents, or the longest liver, in addition to a child’s part in the entire fund. This makes the whole matter work together; leaves no reflection upon the honesty of the parties; and carries the intention into effect.

It is familiar doctrine, if one stand by and see another buy *285property to which he has a claim, and pay a fair price for it, ■ he shall not afterwards be allowed to dispute the title, because he cannot do so without being guilty of a fraud. Our case is stronger than that; for the defendant-is a party to the deed; acts under it as trustee, and receives a part of the fund. We are satisfied, therefore, that the deed of 1826, by the understanding of the parties, supersedes the deed of 1821; and that the estate for his own life, subject to a condition, was surrendered, or exchanged, by the defendant, for an estate for the life of his father and mother, or of the longest liver, in consideration of his being allowed to take a full share as one of the children. As the defendant was entitled to Silva and John, until the death of both his father und mother, the fact that they were not sold at the death of the mother, when the other slaves were sold, is fully accounted for, and puts the idea of an adverse claim, so as to bring into operation the statute of limitations, out of the question; and as Silva died so soon after the death of the donor, we think the defendant was not guilty of laches, so as to charge him with her value.

In short, we concur with his Honor in the view taken by him in regard to the whole case, and the decree must be in all respects affirmed.

Per Cueiam. Decree accordingly.