#### Richard M’Cree v. William Houston.

} From Mecklenburg.

Alexander, upon the marriage of his daughter with M’Cree, made a parol gift to him of a slave. M’Cree kept the slave in his possession for seven years, and being about to remove out of the state, he made a parol gift of the same slave to his son, an infant of four years old, who, with the slave, remained with Alexander. Two years afterwards^ Alexander sold the slave for a valuable consideration to Houston, who knew of the gift to M’Cree’s son. This sale to Houston is good as against M’Cree’s son, under the act of 1784, ch. 10.

This act makes all parol gifts oí slaves void, as to creditors and purchasers, with or without notice.

•Gifts of slaves, not void as to the creditors of the donor and purchasers from him, must be in writing, attested and registered, and made bona fide.

This Court adopts Lord Mansfield’s construction of the statutes of 27th Elizabeth, and will support voluntary conveyances made bona fide, and founded upon a meritorious consideration, against purchasers for a valuable consideration.

This was an action of detinue for sundry negro slaves, Maria and her children ; and the case was, that William 41exander, sen. was the owner of (he negro slave Maria, and upon the marriage of his daughter Mary with William M’Cree, father of the Plaintiff, in the year 1789, he made a parol gift of Maria to his son in law, who kept her in possession until the year 1796; when, being about to remove to the state of Tennessee, be made a parol gift of Maria to his son Richard M’Cree, the Plaintiff, then an infant about three or four years old ; and left the Plaintiff and the slave Maria with William Alexander, the grandfather of the Plaintiff. Afterwards, in the year 17 98, William Alexander, for a valuable consideration to him paid, sold the slave Maria to the Defendant Win. Houston, who, at the time of the p.«rebate, was fully apprised of the Plaintiff’s claim to the slave. All the other slaves-named in the declaration were the children of Maria, and the Plaintiff brought this suit within three years after his *430arrival to full age. Tito Jury, under the direction of the Court, found a verdict, for the Defendant,’ and a rule for a new trial being obtained, on the ground of misdirection by the Court, the case was sent to this Court.

Morclecai, for the Plaintiff.

— There is no necessity for examining what would be the situation of the Plaintiff against a purchaser claiming under M’Cree the elder. No creditor of his nor purchaser from him sets up any claim, and no sale by Alexander could affect a gift made by M’Cree.* The question is, can a purchaser from Alexander, with full notice of the settlement made by him on his daughter, avoid that settlement, because it was not evidenced by deed ? To determine this, it will be necessary to examine, the statute of 1784, ch. 10: and whether we adhere to the letter of the statute, or extend the words to embrace cases which have been construed within its spirit, the Plaintiff must prevail.

As to the letter of the statute :■ — We think the Legislature have expressly provided for every thing which that act was intended to remedy, arid that, by going further, the Court will not construe, but legislate. The title of the act is, “ directing how deeds of gifts and bills of sales of slaves shall be executed, authenticated and perpetuated.” The preamble recites that “ Whereas many persons have been injured by secret deeds of gift to children and others, and for want of formal bills of sale for slaves, and a law for perpetuating such gifts and sales.” These are the mischiefs the Legislature propose to remedy, and they go on to declare that “ For remedy whereof, all sales (not all “ gifts) of slaves shall be in writing, attested by at least “ one creditable witness, or otherwise shall not be deemed “ valid : and all bills of sale of negroes and deeds of gift “ of any estate of whatever nature, shall, within nine “ months after the making thereof, be proved in due form 4( and recorded: and all bills of sale and deeds of gift not *431 “ authenticated and perpetuated in manner by this act “ directed, shall be void and of no force whatsoever.” The mischiefs recited are three. 1st. ¡Secret deeds of gift j 2d. The want of formal bills of sale for slaves; and, 3d. The want of a law for perpetuating such gifts and sales. The act provides a remedy for each mischief. 1st. Deeds of gift shall no longer remain secret, but shall be recorded within nine months, otherwise they shall be void; 2d. Ml sales of slaves shall be in writing; and, 3d. Such gifts (that is such as are evidenced by writing) and such sales shall be perpetuated by having the writing recorded. Expressio unins est exclusio alienas. Quoties verbis nulla est arnbiguitas, ibi nulla expositio contra verba Jienia est. The Legislature have told us the mischiefs which they intended to remedy: shall the Courts say there are other mischiefs which we think ought to be provided for, and we will take it for granted that the Legislature also intended to provide a remedy for them ? If what is set up in this case on behalf of the Defendant had been deemed a mischief, for which a remedy should be provided by the Legislature, they could have provided such remedy by the insertion of two words: all sales “ and gifts” of slaves shall be in writing', &c. The Legislature seem cautiously to have avoided the insertion of these words. Strong reasons presented themselves to the Legislature against the apprehension of such mischiefs from parol gifts. In all such gifts, the law required an actual delivery of the possession, which gave as much, if not more, notoriety than the recording or registering of a deed.

If all gifts were within the purview of the act of 1784, why did not the Legislature in the year 1792 put them on the same footing with sales ? They declared by the act of 1792, ch. 6, that that act is to amend the act of 1784 ; and that notwithstanding the act of 1784 required that' “ all sales of slaves should be in writing,” yet “ that all <s sales of slaves bona fide made, and accompanied with the actual delivery of the slave or slaves to the pur*432chaser, and which would have been held good and valid “ before the.passing of the art of 1784, shall be goo,’, and ie valid without any bill of sale,.” Thin was the precise COÍ)(]¡|jOT) of gifts at the common law: ami the act of 1792 was intended to place sales on the, same ground with gifts. If such be the letter of the act, what is its spirit ? The object of the act was to protect persons from being injured by secret gifts. If we are to construe if, then according to the spirit, we should take, care that no person be, injured by such secret gifts. Why is there no necessity for a recorded deed between the parties ? Because they know the. transaction without a deed, ami cannot be injured by the want of a deed. Will not the same reasoning apply to a purchaser from the donee ? Will not (he, same knowledge, which prevenís A. from avoiding his own gift, prevent 1?, likewise ? If not, it is only necessary to change the cola." of the transaction, to let A. make a sale to B. and the provisions of the act are complied with, and the parties are safe. The, object of the law is to give information, and whether it come in through the eyes or tl*»c ears irj immaterial.

If there had been a deed, and that deed not registered the, case would have been within the very letter of the law: and how then would it have stood ? A variety of cases; shew that the, party purchasing with notice of an unregistered deed, shall be affected by it, and his purchase bo defeated, it being made mala fide. * It is true these aro all cases in equity: but, when a Court is making a construction upon a statute, for the purpose- of bringing a case, not within its letter, within the- mischiefs it was intended to guard against, the construction, in equity and law, musí. he the same $ and the notice ib equally operative in law an in equity.†

*433«#. Henderson, Por the Befendan t.~

— This case does not depend on the 27 th Elizabeth, but is governed by the act of 1784. The acts of 13th and 07th Elizabeth declare all gifts made with intent to defraud creditors or purchasers void. Under these acts, if there be no intent, that in, an actual or legal intent, to defraud creditors or purchasers, the gift is good. Courts of Law have held certain arts fraudulent per se ; such as continuing in possession of the property after an absolute bill of sale or deed of gift. But yet this is, because the purchaser or the donee suffers the seller or the donor to hold out to the world falsa colors, by which creditors or subsequent purchasers may be injured.

A few cases will shew what has been the current of decisions in this State upon the operation of the act of 1784. If a person make a gift, not indebted at the time, nor with a view to become indebted, the gift is void against subsequent creditors under the act of 1784 ;* though such gift would have been good under the 13th Elizabeth.† In Pearson v. Fisher, decided in this Court,‡ and Shcrmon v. Russell,§ it was decided that a gift to a child, of a slave, not in writing, is void as to creditors under the act cf 1784. In the latter case, the father was not indebted at the time of the gift, and the slave was given to a child that was a cripple. There was no actual intent in the father to defraud his creditors. -lie had ample property to pay Ms debts.

In West v. Bubberly,§ this Court say, if the deed to the. daughter was made with a view to defraud creditor;', though clothed with the most solemn form, it would bo void when opposed to such claimants; and if made without such motive actually existing, yet, if unattested by a subscribing witness, it is declared void by the act of 1784, •which act our Courts have construed to extend only to creditors and purchasers.

*434This act was not made to protect creditors and purchasers against fraudulent conveyances ,• for that was sufficiently provided for by the acts of 13th and 27th Eliza-jjeth, and our own act on the same subject, passed in 1815; but it was made to prevent creditors and purchasers being injured by secret sales or deeds jf gift, though the sale might have been for a fair price, and the gift on the most meritorious consideration.

It is apparent that the legislature had no eye to the fraudulent intent of the parties, as they place a sale on the same footing as a gift. Their object was to prevent creditors and purchasers being injured by the secrecy of the transaction.

The act of 1792, cli. 6, makes the sale of a slave, accompanied with the actual delivery to the purchaser, and which would have been good before the act of 1784, good and valid without any bill of sale. What sale of a slave would have been good before the act of 1784 ? A sale for a valuable consideration : and what but the act prevented it being good after the act? Against whom would it have been held good and valid before the act? Creditors and pur chasers.

The Plaintiff claims under his father, and, being a mere volunteer, stands precisely in his place.

Then what effect will notice of the claim of the Plaintiff have on the transaction ? It can have no effect, if our construction of the act of 1784 be correct, became the act requires a deed of gift to pass the right to a slave or other property against creditors and purchasers. The moment the slave is purchased, the legal estate is vested in the purchaser. If the Plaintiff have any claim remaining, it is in equity.

That if he has any claim remaining he must resort to equity, will appear by the registry acts. In the case of Le Neve v. Le Neve, 3d Atk. 646, Lord Hardwickc says, it would be a most mischievous thing, if. a person taking advantage of the legal form appointed by an act of *435Parliament, might under that protect himself against a person who had a prior equity, of which lie had notice. • The case of Lord Forbes, in 3 Atk. 653, proves that notice cannot, under the registry acts, be taken advantage of in a Court of Law. In that case the conveyance to the trustee being registered, an ejectment was brought,* notice was proved of the prior conveyance, but it was held, it would not do at Law, and an injunction was filed. The same doctrine seems recognized by this Court in the.case of West v. Dubberly before mentioned.

But if the construction which has heretofore been put upon the act of 1784 should be thought by the Court to be erroneous, and they will now change the law, the next inquiry is, whether the gift be not void against purchasers by the act of 27th Eliz. ch. 4. By the very words of this act, the words “ good consideration” mean valuable consideration. They are, 14 all persons who shall purchase for money or other good consideration.” These words are taken notice of by Newland, in his Treatise on the Law of Contracts, 392, and in diyers other books.

In 2 Yes. 10. Lord Hardwicke says, that every voluntary conveyance, where afterwards there is a conveyance for a valuable consideration, though there be po actual fraud intended, is void against creditors and subsequent purchasers.

In Evelyn v. Templar,* A. by settlement after marriage, (not being indebted,) conveyed to trustees to family uses, reserving a power to sell, but covenanting that the purchase money should be paid to the trustees to be laid out to the same uses. He sold to B. who had notice of the covenant, but paid his money to A. who died insolvent. It was held that B.’s representatives should not be obliged to repay the money, because the settlement was voluntary, and fraudulent as against a purchaser: and the Lord Chancellor said, that although it would have been well, at first, if the voluntary covenant had not been thought so *436¡¡¿<«0 of, yet the rule was such, and so many estates stand that it cannot be shaken.

And hej'e it may be observed, that although the fact of ss{^( ?K>jn„, indebted at the time of his making the voluntary settlement might have been material, if we were considering the claim of p, subsequent creditor under the ISlli .Elizabeth, yet as regards «. purchaser under the 27th Elizabeth, it is entirely immaterial. Lord Hardwicke drew this distinction between 13th Elizabeth, which respects creditors, and the 27th Elizabeth, which respecte purchasers, in Lord Townshend v. Windham.*

A father made a lease of his manors, &c. to trustees in trust for his daughter for twenty-one years, to the intent that the profits before her marriage should be for her maintenance, and for raising a portion if she married P. She did not marry P. but another, whom the father disliked, but afterwards he was satisfied with their marriage, and lived with them. It was held that the conveyance was voluntary and void.†

The case of Newstead v. Searle‡ which seems to make against the Defendant, is explained by New!ami, in bis Treatise on Contracts, in page 399. Lord Hardwickc. says, in He \v stead v. Searle, “ Here are reciprocal consi-í£ derations on the part of the husband and wife, by the “ provision under the articles for the children of the second ¿s marriage.”

The case of Doe v. iluüedge§ is examined by K owl at id, in page 402. It was for want of a bona iidc and valuable consioeration in the purchaser of the estate, that Lord Mansfield determined the first deed to be good.

In the case of Jiiamcrlin v. Millón.ǁ the limitation was mippovtcd by a valuable ronsider.tiinn direct!y apply ingtu it.

In iiovey’s case,¶ the opinion of the Court was extrajudicial. The question was, whether a settlement after *437marriage, but in pursuance of articles before marriage, to the husband for life, for the wife for life, then to the heirs, was void against subsequent purchasers for a valuable consideration. The Court held there was no color of fraud, the settlement being in pursuance of articles before marriage.

In Prodgers v. Langham,* one of the decisions of the Court was, that though the deed was void in its creation as to purchasers, yet, the marriage having taken effect, the first settlement did not remain voluntary.

Kirk v. Clark, was determined upon the consideration of marriage. Though at first voluntary, the deed became good in consideration of the marriage.

In Brown v. Carter, Lord Alvanly considered the case of Kirk v. Clark to be a strong one.

The subject is well examined by Newland, from page 391 to page 405; and in 9 East. 39, Lord Ellenborough examines all the leading cases upon the subject, and shews conclusively that they establish the position, that purchasers for valuable consideration will hold against voluntary conveyances, under the 37th Elizabeth, to the full extent contended for in this case on behalf of the Defendant.

Gaston, in reply.

The gift from M’Cree, the father, is not attempted to be impeached: for no one pretends to claim as a purchaser or creditor from him. The only attempt is to impeach the gift from Alexander, the grandfather, to M’Cree, the father. This attempt is bottomed on two grounds: 1st. The act of 1784, ch. 10 ; 2d. The statute of 27th Elizabeth against fraudulent conveyances, to the injury of purchasers. We will examine each ground.

First, as to the act of 1784 :• — The Plaintiff denies, that whether this statute be now to be expounded, or is regarded as having a settled exposition 5 whether literally or liberally, by its words or its equity, it embraces the present *438case. All that he asks is, that the Defendant, after selecting his ground, shall be obliged to meet him there.

Taken as res integra, this statute does not embrace the cage 0j> a paroj The preamble recites the mischiefs in the contemplation of the Legislature: “ Secret deeds of “ gift to children and others, the want of formal bills of “ sale, and a law for perpetuating such gifts and sales.” Twice, are gifts, and sales, here recognized and distinguished as different modes of transfer. In regard to the first, the injury arises from secret deeds of gift; but as to the second, from sales without deed. The first was injurious, whatever the nature of the property given; but the second only injurious where slaves were transferred ,• and there was a general mischief, that such deeds of gift and bills of sale could not be perpetuated. To meet these evils, thus distinguished, (“ For remedy whereof,”) it is enacted, that all sales aforesaid should be by deed, attested. This cured the second evil. Next, that “ ail deeds of gift, of whatever kind,” should be proved and recorded. This cured the first evil: and lastly, all bills of sale and deeds of gift not so authenticated should be void. This met and remedied the last mischief.

It would manifestly seem that the Legislature forbore from regulating gifts made by parol. If this intention appear, we are bound to presume that they had a sufficient reason for declining to act on them. But reasons readily suggest themselves. Gifts made to a child on marriage were an established mode of transfer, and highly favored. They had the notoriety attending the old mode of feoffment. The Legislature were not disposed to break in too violently on old and fixed usage. Besides, “ every proper “ gift by parol must be accompanied with delivery and “ take effect immediately,” otherwise it was a mere contract which passed no right, and could not be enforced but on sufficient consideration.* But on a sale, “ as soon as “ the bargain was struck, the property of the goods passed *439•*' to the vendee, so that property could pass therein in “futuro and without delivery.’-* It might be thought safe, therefore, to leave parol gifts to the operation of -Common Law principles, and to the statutory regulations against frauds, in affirmance of the Common Law. For, according to them, they were absolutely void without delivery | and void against creditors and purchasers, unless made bona fide. Honest gifts, attended by a notorious delivery, they might not wisii to invalidate.

But it is objected, that if this act be thus construed, evils will be left which it docs not redress. To meet these evils, to prevent frauds and perjuries, all parol proof must be rejected, and this act turned into a statute against frauds and perjuries. There is a quackery in legislation, as in medicine, more dangerous than entire forbearance. To cure all political maladies by a legislative act, as by a charm, is an idle hope. Remedies are always best which are gradually alterative. Whether parol proof should bo rejected of ordinary transactions, is a grand question, not to be decided without much deliberation. It has been much questioned, whether the existence of such a rule elsewhere, has not produced more frauds than it prevented.

At all events, our Legislature have not intimated that perjuries were the evils they meant to cure in regard to gifts, but secrecy only. Nor does it follow tisat the last was to be cured as a mad surgeon would cure a wart — by amputating the limb. They preferred to tolerate some, of which they knew the extent, rather than fly to others they knew not of. Whether their decision was wise or unwise, is not left to Courts to decide.

It is further objected, that, according to this construction, parol gifts are less restrained than parol sales; and this is too gross an absurdity for a Legislature to be guilty of. If the danger of abuse in the one case were better guarded against by existing regulations than in the other, there is no absurdity, but a wise providence in ap*440plying their vigilance exclusively to the latter. Practical m,en should make laws to meet actual, and remove proha-hie mischiefs, and not to accommodate their acts to the fancjc(j symmetry of the theorist. But suppose this excessive comparative restraint of parol sales were an evil, it was proper for legislative remedy, and has obtained it. By the act of 1792, ch. 6, amendatory of the act of 1.784, (universally ascribed to the late Judge Moore as its author,) parol sales are freed from this inconvenient restraint, and placed precisely where the former act left parol gifts. “ Bona fide made and accompanied with de- “ livery,” they are declared good without a bill of sale. The act being made in pari materia, and exactly meeting and removing the objections made to our construction of the former act, is the strongest legislative declaration that our construction is true.

If, however, these objections had all the weight attributed to them, they would not avail to enlarge the operation of the law, unless the enacting words could, without violence, be so interpreted as to comprehend them. In a case in 3 Crunch, 155, it was admitted that the terms <£ all mortgages and deeds of trust whatever,” were sufficiently comprehensive to take in mortgages as well of personal as of real property. But the inquiry was, whether these general terms were not to be restricted by a reference to other parts of the act, so as to leave out mortgages of personal property: and the Court were strongly inclined to think so, had it not been for the inconvenience which would have resulted from such restriction. But are there any words in this act, which, taken in any sense, popular or legal, can cover the supposed enactment ? A desperate attempt is made to embrace gifts under the word sales: “ all sales of slaves shall be in writing.”

It is admitted that the word “ sale,” in its popular sense, not only excludes gifts, but is used in opposition to gifts. But it is alleged, that in a technical or legal sense, it comprehends gifts. This allegation is believed to be *441wholly unfounded. The word purchase is applied to real properly according to its original feudal meaning, comprehending in it every mode of acquiring lands other than by descent. But the word sale never was used either popularly or legally, in lands or chattels, to comprehend other than transfer by bargain for money or other valuable consideration. Purchase, in its legal signification, is not the correlative of sale; for it takes in acquisitions by es-cheat, occupancy, forfeiture, prescription, and every sort of alienation. Purchase, in its popular sense, is the correlative of sale; and then it means “ an acquisition obtained “ by way of bargain and sale for money or other valuable <e consideration.”* And in regard to personal property, gifts and sales are perfectly contradistinguished. “ Gifts “ form one of the modes of acquiring an interest in chat- “ tels, while contracts form another, and sales are regard- *•' ed as one species of executed contracts.”†

But let it bo conceded that the word sale covers every mode of transfer, we have a right to insist that the same meaning be given to it throughout. The original and amendatory act unquestionably form but one statute. There it is declared, that sales bona fide and accompanied with delivery, are valid without deed. This act received its' final form in 1792, while the negro was in the hands of M’Cree’s father, bona fide, and delivered under a parol gift. The Legislature confirm this gift; they make it perfect; they put it out of the power of Alexander, by collusion with any purchaser, to avoid it. After this legislative enactment, putting it under the shield of the law, how impotent the attempt of Houston, six years thereafter, to assail it!

It is insisted by the Defendant, that the settled construction of this act, by judicial decisions, destroys the gift of Alexander to M’Cree, and in fact forbids an enquiry into the actual meaning of the act of 1784. On our part, we acknowlege that prior adjudications are always entitled to high respect, and that, although a few precedents cannot *442make the law, when they arc clearly shewn to be erroneous, there is a period, after which it is unwise to disturb them. It will be shewn that such is not the case here. But were y. 0^}161,^3(3) the Plaintiff is entirely satisfied to rest his case upon the construction which has obtained. He claims to stand on the vantage ground of authority, as well as of reason, and is as ready to combat his adversary with decisions, as with arguments.

The first case to be found in the books, is that of Knight v. Thomas, decided at Halifax, in April, 1796, and reported in 1 Hayw. 289. It does not appear whether Knight claimed under a gift or a sale ; but the case shews that the Court and the Bar thought that the act of 1784, did not avoid a parol conveyance of slaves between the parties, but only as to creditors (and others within the same mischief) who trusted the donor or bargainor on the faith of his visible property. This case is believed to have been decided by Judge Haywood alone.

In September, 1798, was tried the case of Latham v. 0 uten, reported 2 Hay. 06. There Judge Haywood, alone on the bench, declared his sense of the act of 1784 to bo, that it not only required deeds of gift to be recorded, but also to give validity to gifts, that they should be made by deed and recorded, otherwise the operation of the act might encourage secret gifts, which were meant to be discountenanced. The particulars of the case are not stated, so as to enable us to pronounce what part of these observations should be deemed, strictly speaking, judicial. But in March, 1798, we meet with the case of Hancock v. Harvey, reported in 2 Hay. 86. This case, gives us the most satisfactory exposition of Judge Haywood’s doctrine. On an action of detinue for a slave, which had been given, and delivered in the presence of witnesses, and retained in possession for years, (precisely the case before the Court,) it was objected that there should be a deed. Judge Moore adopted the construction, which, if the question were new now, ought to be adopted: and declared that the act did *443not require a deed, but only that a deed when given should be recorded. Nor did lie content himself with a bare enun-ciaiion of his opinion : he gave his reasons at length with his usual perspicuity and force, though the reporter has forborne from stating.them. His brother Judge, being the reporter, lias given his own reasons at length, and declared that in this case no deed was necessary. For this he assigned two causes : one that neither creditors nor purchasers were parties to the suit; the other, that 54 this was 44 not a secret transaction, incapable to produce publicity; “ for a delivery is made, and possession openly kept; that te the act aims only at secret transactions, and that had it “ been secret and a creditor concerned, a deed would have “ been necessary.”

The only authority in point is that of Sherman v. Russell, 1 Law Repos. 470, in which a bare majority of the Supreme Court gave their sanction to Judge Haywood’s construction. That the present case is not concluded by that of Sherman v. Russell, is manifest in this, that, the very Judge who delivered the judgment in Sherman v. Russell, has brought this case up, because he doubts of the law.

Adopting, then, Judge Haywood’s interpretation thus sanctioned, as the law, what is its bearing on the present case ? It is established that the object of the law was to put down secret conveyances of slaves, to the injury of creditors or purchasers : that where creditors or purchasers are not concerned, as the case cannot come within the mischief, the conveyance by parol is good : and that when the gift is public and attended with delivery, it comes not within the mischief, and therefore not within the purview. We are told “ stare decisis,-” and we are content to abide by decisions ; but we insist that they should be adhered .to altogether. Secret gifts are within the same mischief as secret deeds of gift. Be it so, and let them both be void. The remedy against the mischief of secret deeds is to require publicity; and the security against secret gifts is *444to demand notice or publicity. Deeds of gift duly notified are good, because they put the creditor or purchaser on bis guard ; and on what principle shall gifts be bad, of which the creditor or purchaser has been actually informed ? Perhaps the Courts were right in extending the operation of the law by equity, in order to meet its mischiefs ; but assuredly they cannot enlarge its meaning in order to do mischief. They may take the liberty of throwing a shield over the possession of a bona Jide purchaser, but certainly not to furnish a mala Jide purchaser with a sword, wherewith to assail the rights of others. All the decisions admit that the gift is good bctwee'n the parties, and is only void as against a purchaser or creditor. Assuredly they mean a bona Jide purchaser j for an estate acquired by fraud is in the eye of the law, as no estate.* Now a purchaser with notice of a right in one from whom he does not buy, is always regarded as a fraudulent purchaser ; and here it is that the adjudications on the registry acts come in with decisive effect. The cases of Le Neve v. Le Neve,† and of Chenal v. Nichols,‡ on the registry acts in England, state that the intention of those acts is to secure subsequent purchasers against prior secret conveyances | that the taking of an estate after notice of a prior right, makes a person a mala Jide purchaser, and puts him out of the equity of the statute. It is true that these cases were decided in a Court of Equity, and not in a Court of Law; bat the principles which they contain have been shewn to be equally recognized in all Courts.§ And as the question here is not of a trust binding on the conscience, but of the true construction of a statute, there can be but one sound interpretation to be,given to the act either in a Court of Law or Equity.

The case of West and wife v. Bubberly has been quoted to prove that under the act of 1784, notice to a purchaser is entirely immaterial •, but the notice which Loftin liad, is *445stated in the case to have been prior to his purchase under execution. Clearly such a notice does not affect the purchaser, provided the creditor had a right to sell. The purchaser, under an execution, represents the creditor, and is clothed with bis rights, and armed with his immunities. 0 John. ch. Rep. 50. If the gift under which the Plaintiff claimed, was void as against the creditor, for whose benefit the execution issued, the purchaser under such creditor liad also a right to avoid it.

The attempt which has been made to turn the Plaintiff round and send him into a Court of Equity for relief, is extraordinary. The letter of the act does not require a deed: the estate, as between the parties, passed by parol gift and delivery. But the Defendant claims that he should be protected by the Equity of the statute in his subsequent purchase; and when this claim to protection is repelled, by shewing that bis purchase is not within such Equity, then he objects to the validity of this answer in a Court of Law. In other words, ho insists that an equitable enlargement should be given to the operation of the statute to protect his iniquitous claim, and sends the Plaintiff to a Court of Equity to be relieved against the iniquity of this equitable construction !

It is argued, that we must follow analogous decisions on the 27th Elizabeth; and these declare that notice, to a purchaser of a prior voluntary conveyance will not prevent his avoiding- it. Before the revolution there was a strong current of British authorities, many of which are mentioned and commented upon by the Defendant’s counsel, establishing the principle that a voluntary conveyance, if bona fide made, was not void against a subsequent purchaser. It seems, ho i ever, that it has since been settled that a voluntary conveyance is necessarily fraudulent against such purchaser. It had been early decided that a conveyance, actually fraudulent could not be sustained, because of notice: and as a voluntary conveyance is in presumption of Law now deemed fraudulent, the notice avails *446nought against it. This doctrine is not only repugnant to reason. 1 Fonb. 278, but is admitted by the most intel- ' i , ligent English Judges to be erroneous: and while they jp()llow it because it is too firmly fixed to allow them to act freely, they lament the necessity which permits them not to exercise their own understanding.* And why should we imitate an avowed error ? The decisions made in England bind not our Courts. They have been made on the statute of Elizabeth' — not on our act of 1784. They relate to voluntary conveyances of lands, and have no operation on a gift of chattels. These decisions ought to be regarded by us as beacons to indicate error, not as guides to truth.

2d. The attempt to impeach Alexander’s gift as fraudulent under the statute of Elizabeth 27th, has been (comparatively) but little relied on. The statute of 13th Elizabeth for the protection of creditors is re-enacted in this State. — See act of 1815, ch. 38. But that of the 27th Elizabeth for the protection of purchasers has not been reenacted. The Legislature probably thought that the common laiv afforded purchasers all the protection which was desirable, when it avoided conveyances made to their injury, which were actually fraudulent. But the statute of 27th Elizabeth, by its terms, as well as its invariable construction, operated only on conveyances of real estate, or interests in real estate. Gifts and conveyances of chattels have been left in England, and ought to be left here, to the operation of the Common Law. That sustains them if honest, and annuls them if fraudulent. But even in England, in regard to gifts of real estate, and under the most rigid construction of the statute of 27th Elizabeth, such gifts have never been deemed purely voluntary, if they appeared to contain some conventional stipulations, some reciprocity of benefits, something in the nature or spirit of a contract, and point out any object or motive beyond the indulgence of affection or claims of *447kindred.* Here, if an actual contract be not shewn, one is clearly implied. At all events, the Jury ought to have been left at liberty to find a contract, instead of being peremptorily instructed by the Court that the Law was with the Defendant. M’Crce marries the daughter of Alexander, and thereby relieves Alexander from the legal obligation of maintenance. A gift made to M’Cree, at the moment he renders this valuable consideration to Alexander, ought to be regarded as being an equivalent and in the nature, of a recompeuce therefor. It is not a gift purely voluntary.

*

1. Vern. 45, Jones v. Purefoy.

*

3 Atk. 650. 1 Strange, 664. 2 Johns, ch. Rep. 608.

†

10 Johns. 461. 1 Bum. 474. Peake’s N. P. 190, 191. 2 Mass. Hep.. 306. 4 do. 637. 6 do. 29, 487. 3 do. Appendix, 575.

*

2 Hay. 289.

†

1 Fonb. 271.

‡

1 Law. Rep. 461.

§

Do. 467.

*

2 Bro, ch, 148,

*

2 Ws. 10.

†

Now. on Gont. S"^. Sider6n, 133. 1 Civ Ca. 216. Cro Jac. 158.

‡

1 Atk. 266.

§

Cowp, 705.

ǁ

2 Wills. 356.

¶

1 Vent. 193,

*

1 Sider. 133.

*

2 Bl. Com. 441.

*

2 Bl. Com. 448.

*

2 Bl. Com. 241.

†

Do. 440, 442, 446.

*

Co. Rep. 17. Freeman’s case.

†

3 Aik. 646.

‡

1 Strange, 664.

§

1 Burr. 474. Peake’s N. P. 190, 191. 10 Johns. 461. 2 Mass. Rep. 506. 4 do. 637. 6 do. 29, 487.

*

2 Bro. ch. 148. 9 East. 71. 4 Bos. & Pul. 332.

*

Roberts on Fraud. Convey. 65 to 103,

Hall, Judge.

There can be no doubt but that the Plaintiff would be entitled to recover on Common Law principles. The slave Maria was given by Alexander to his son in law, M’Cree, who had notorious possession of her for six or seven years. He then gave her to the Plaintiff, his son, who was an infant, and remained with Alexander, his grandfather, after his father’s removal. Some time afterwards, Alexander sold the slave to the Defendant. It is not pretended that these gifts were not bona jide made: and, therefore, whether if the first gift had been made in secret, and the father in law had retained possession of the slave so given, and had afterwards sold her to a purchaser for a valuable consideration without notice, it would have amounted to one of those cases of fraud, which Lord Mansfield says, the Common Law would have reached without the aid of any statute ;† or whether a right was thereby created in the donee, although fraudulent, which could not be divested by him who after-wards acquired a right without fraud,‡ it is not necessary now to decide.

But it is necessary to consider, 1st. Whether the statute of the 27th Eliz. ch. 4, interposes any obstacle to the *448Plaintiff’s recovery ? and if not, 2d. Whether he is pro-vented therefrom by our act of 1784, ch. 10, sec. 7?

I think the statute of the 27th Eiiz. does not extend to cage. [)CCauso the subject in controversy is a personal chattel, and that statute in express terms extends only to real property and leases for years. It declares that all covinous avid fraudulent conveyances of lands, tenements and hereditaments, shall he void as to subsequent purchasers for valuable consideration. No words are, used which comprehend personal property. If the, rule he ap,plied, “that statutes made in suppression of fraud should “ receive a liberal construction,”* the statute does not embrace the present case. The statute of 13th Eiiz. in favor of creditors, speaks not only of lands, &c. but also of goods and chattels; and if it had been intended that the statute of 27th Eiiz. should extend to goods and chattels, it would have been so expressed. It, may be further observed, that the statute of 1 Sib Eiiz. in the third section, declares that the parties to such fraudulent conveyances, as it is made to avoid, shall incur the, penalty of one year’s value, of the land, and the whole value of the goods and chattels: but the statute of the 27th Eiiz. which inflicts the same penalty as to lands, &c. is altogether silent as to personal property.

But admitting that the, statute extends to goods and chattel:;, and that tlse gift to the Plaintiff was legal and not affected by our act of 1784, it would be with difficulty that I could bring my mind to adopt such a construction of it as would prevent a parent from acting in obedience to one of the most sacred duties imposed upon him by the laws of nature, tiiat is, making suitable provision for his children. When a child marries, and separates from his or her parent, the first thing that occurs to the mind of .the parent is, what part of his property, in justice to himself and perhaps to other childreu, ought he to give by way of advancement. Perhaps, as in the present case, he *449can spare a negro girl to assist his daughter: when he has done this, he thinks he lias only done his duty, and the world thinks so too. Keeping out of view adjudications on the subject, let us see whether the Parliament of England thought otherwise when they passed the statute of the 2fth Eliz. In the preamble, as well as in the body of the statute, fraudulent conveyances arc complained of, and declared void in favor of purchasers for money or other good consideration. In the proviso contained in the fourth section', it is declared that the statute shall not extend to purchasers upon or for good consideratian and bona fide. The result seems to be, that as the conveyances sought to be set aside were made upon a good consideration and bona file, they were not fraudulent, and therefore not within the statute. And in this sense are the same words used in the statute of the 13th Eliz. But it has been decided, that although in the preamble and body of the act, the conveyances there spoken of are set aside in favor of subsequent purchasers for money or other good consideration, that the words “ good consideration” mean valuable consideration.The necessity of the case required this construction ; because, if it had been held that conveyances should be set aside in favor of subsequent purchasers for a good consideration, this dilemma must have been encountered, that conveyances for a good consideration and bona fide, spoken of in the proviso, must be set aside in favor of subsequent purchasers for a good consideration,* which would be absurd. It was therefore unavoidable that the words “ pr other good consideration,” in the body of the act, should be construed to mean valuable consideration.

But it has also been decided, that as the words “ good consideration,” in the body of the act, mean valuable consideration, the same words in the proviso in the fourth section mean the same tiling. Surely they ought, if there be the same necessity for it. TVe have seen, in the case first put, that there is a necessity for .it. In the ease last put, *450that necessity is not so obvious; and, if not, why shall we not be governed by the plain import of the words ? Ey doing so, the child would retain what justice required the fatb.er to give it, and what he had given bona fide; and not be dispossessed whenever the whim and caprice of the parent might cause him to sell it to a purchaser for valuable consideration, whether he had notice or not of the gift to the child. But, says Newland, in his Essay on Contracts,* after reciting the arguments on both sides of the question, “.Although these arguments may shew that a “ different construction, with respect to voluntary convey- “ anc.es founded on a meritorious consideration, ought at “ first to have been put on this statute, it is now too late “ to dispute, this point; it having been settled by several “ solemn decisions, that such conveyances, notwithstand- “ ing the merit of their consideration, are, with respect- “ to purchasers for valuable consideration, fraudulent and “ void.”

Be this as it may, the Law was understood differently in 1777,† shortly after we separated from the mother country. And if the Law, as then declared by Lord Mansfield, meets with our approbation, it would be wrong to sacrifice our opinions to decisions which may have taken place since; more particularly, as I think, the construction then put upon the statute is more suitable to the nature of personal property in this State than a contrary one.

I am aware that some decisions have taken place in this State, which indicate-that those who made them thought differently. But it may be observed, that the question we are now considering was not made. In the case of Ingles v. Donaldson,‡ which was an action brought for a slave, it is to be regretted that the question was not made; as we could have had the opinion of Judge Haywood on it. No one holds his judicial opinions in higher estimation than I do. But it will be readily seen in that case, that the Court took it for granted that the statute applied to *451ihe case, and its mind was only occupied in the proper application of the principles of the statute. The cases referred to in Ingles v. Donaldson prove this.* They were cases of real property, and prove nothing against what I now contend for.

But if this statute be not in the way of a recovery, we are, secondly, to inquire whether the act of 1784 operates to prevent it.

I am satisfied, for the reasons given in Sherman v. Russell,† that the act of 1784 requires that all gifts, as well as sales of slaves, shall be in writings otherwise, as there expressed, it would follow that parol gifts, although the donee did not remain in possession after the gift, would be good, and a parol sale for a valuable consideration, and accompanied with possession, would be void: a difference between gifts and sales which I think the Legislature never intended. And were we now, for the first time, to fix a construction on the act, I would say, that all parol gifts and sales should be void as between the parties thereto: that no person should be divested of his property in slaves by parol evidencfethat a title to slaves should not be conveyed to any person by parol; and that all such titles should be, as the act emphatically expresses it, void. But tills question has been put to rest by the case of Moses Knight and wife v. Theophilus Thomas,‡ amongst others. In that case it was said, that it had been decided by the Court that a parol conveyance of negroes was good as between the parties, but was void as to creditors j as well creditors after the conveyance as those who were such at the time ,• and with those decisions the Court in that case agreed. And in an anonymous case reported in 2 Hay. 86-7, it was held by the Court, that as the slave was delivered and the possession kept by the donee’s guardian, no deed of gift was necessary, because creditors and purchasers were not concerned. There was certainly another reason, and that created by the act, and that was, *452that a person should not be compelled to pact with his slaves, except a written conveyance for them be produced against him; for, in this respect, he was shielded as by the statute of frauds and perjuries.

The. act declares that “ Whereas many parsons have i( been injured by secret deeds of gift to children and “ others, and for want of formal bills of sale for slaves, “ and a law for perpetuating such gifts and sales, for “ remedy whereof, &c. Be it enacted, that all sales of “ slaves shall be in writing,” &c. The remedy was for creditors and purchasers, for none others could be injured 3 as t.o them, all gifts and sales of slaves not in writing were void: more particularly as to purchasers3 for laws had been enacted before that time for the benefit of creditors. If tbe law then required that all conveyances of slaves should, as to them, be in writing, it followed that sales and gifts not in writing should be void, and the original owners, as to creditors and purchasers, should still be considered as the legal owners, so that they could convey the property in slaves to subsequent purchasers by deed, whether such purchasers had notice of a former gift or sale without deed or not: for, if they had notice, they thereby knew that such sale or gift, as to them, was void. It would not do to say that the title of such donee or ven-dee depended upon the fact, whether the subsequent purchaser had notice or not. The act of 1784 declares such gifts and sales to be void, but says nothing about notice. If the act under such circumstances declares the Defendant’s title to be good, we have no right to say that it shall not be good, because another circumstance does not appear 3 namely, that he purchased without notice. This is not like the case, where a person has a title made to him, knowing at the same time of another person’s equitable title to the same property. In such case the legal title would prevail at Law, but the person obtaining the legal title would, in Equity, be considered a trustee for the equitable claimant. So in this case, if the Defendant *453Were to apply to a Court of Equity for a favor, stating that he had notice of the Plaintiff's claim when he purchased, perhaps he would not, on that account, meet with redress. Eut here we can only notice legal rights. In the case of Latham v. Outen,* it was not only decided that upon a gift made by a parent to a child, a deed of gift shall be executed and proved and registered, but that a subsequent purchaser, as Latham was, should be entitled to the property in case there, was no deed. No question was then made whether Latham bad notice of the gift to the daughter or not 5 and I take it for granted, that the Court considered that circumstance immaterial, or notice would have been taken of it as weighing something for one party or the other. Upon”' full consideration of the case, I think the rule for a new trial should be discharged.

Henderson, Judge, concurred in opinion with Judge Hall.

Tatxor, Chief-Justice,

contra. I do not intend to inquire whether the act of 1784 was correctly construed at first, because whatever' my individual opinion might be, a series of decisions to the same effect, long known to the public, acquiesced in by the Legislature, and sanctioned by the Court of dernier resort, must be considered as estaj-Wishing the Law. But it cannot be denied, that those decisions have been the result of an equitable construction of the act, placing within its action parol gifts, because they were within the mischiefs designed to be suppressedj and taking out of its words, and giving validity to gifts between the parties, where there were no creditors or purchasers, because it was for the protection of their rights, and for that object alone, that the act was made.

To my mind it seems fair and conclusive reasoning, that the spirit of this interpretation shall be pursued through its consequences, and that every parol gift, which *454jg assailed on the. ground that it is forbidden by the Equity of the act of 1784, shall be defensible under the same act, not only where there are no creditors or purchasers, but ]j j,:ewjsej veíici'0 there are none whose rights can be affected by the construction. It may be supposed, that if the Legislature liad explained themselves fully upon the subject they would have said, “ So far as these parol “ gifts have a tendency to injure other persons, to wit: “ creditors or purchasers, we mean to put an end to iS them. The injury may be effected by fraud, or by se- (< crecy, one of its badges',- and the presence of either " shall render the gift a nullity against those persons. iS Whatever may be the character of the gift, however, it “ shall prevail against the donor, and all volunteer claim- “ ants under him j to the end, that, if it he fair, the donor “ shall not be enabled to practise a fraud upon the donee. “ by resuming the gift, and if it be fraudulent, that the “ donor may be punished for having practised it.” So far as any number of cases lias settled the construction of the act, they have been guided by the spirit of this reasoning, to the utmost extent of which I should be willing to go in any future cases $ giving effect to the probable intent of the Legislature, by putting down parol gifts, when made to the injury of others, but-sustaining them, when that consequence cannot possibly be produced.

I will now briefly examine the character of this transaction as it appears upon the case stated: Upon the marriage of his daughter with William M’Cvee, Alexander gave him, by parol, the slave sued for: the gift was accompanied with a delivery, and followed by seven years possession in the son in law. The. obvious motive of the gift was, the duty of providing for a child on her establishment in life; the consideration of it was marriage, which,' says Lord Coke, is more esteemed in the Law than any other, “ in respect of alliance and posterity.” The marriage consideration has been, from early times, considered sufficient to raise an use, on account of the benefit derived. *455to the father by the advancement of his child, and his being1 relieved from the charge of maintenance;* and it is such a consideration as makes a conveyance good against purchasers under the statute of 27th Elizabeth. There was not the slightest ground to impugn the fairness of the transaction between Alexander and his son in law, unless it could be imagined that lie intended, when he made the gift, to deceive some future purchaser. I should be unwilling, without a necessity enforced by the plain meaning of the words of the act, to annul a transaction charac-terised by so much fairness, and to enable a third person to gain prosperity at the expense of an innocent and meritorious acceptor of a parent’s bounty.

Nor does the act, in my opinion, require a construction favorable to a purchaser with notice, where the gift between the parties was fair in itself. There is a solid reason why notice to a subsequent purchaser should make no difference, where the first transaction is fraudulent: for then, when he has notice, he knows also that it is void $ and to prefer the purchaser’s title in such case, is to discountenance and suppress fraud. There- is an obvious difference between a gift really meant by the parties to deceive some third person, and one which is fair and upright in itself, but which the Law, in pursuit of a certain policy, pronounces void against a subsequent purchaser. In the latter case, tiie inquiry whether the purchaser had notice forms an indispensiblc ingredient in the justice of the case; and when the notice is fixed upon him, it stamps his claim with the odium of attempting to divest the title of a prior owner, whose acquisition was not only fair, but, as in this case, singularly meritorious. Hence the regret expressed by the English Judges, that the constructions upon the statute of 27th Elizabeth should have rendered voluntary conveyances void against subsequent purchasers with notice. Admitting the voluntary conveyances to be fair also, this regret is perfectly natural; but would bo alto-*456gethcr misplaced upon the supposition that they were fraudulent in fact, in truth, it is only by a process of subtle and artificia! reasoning’ that voluntary conveyances, made bona fide, are brought within the operations of that statute: such as making a subsequent sale a proof of an original intention to deceive. From persons aware of this,it is not surprising to meet with the following observations : In Evelyn v. Templar,* Lord Thurlow said, that although it would have been as well, at first, if the voluntary conveyance had not been so little thought of, yet the rule was such, and so many estates stand upon it, that it cannot be shaken.” In Doe v. Martyn,† Mansfield, Chief-Justice, “ regretted that it had ever been ci decided that even notice of the prior settlement would not defeat a subsequent purchase.” In Doe v. Manning,‡ Lord Ellenborough says, “ it would have been bet-ci ter if the statute liad avoided conveyances only against Si purchasers for valuable consideration, wiihoiii notice of the prior conveyance.” These remarks, and many others scattered through the books,§ render it probable that a wrong construction has been put upon the 27th Elizabeth; and that if it were now to be construed for the first time, purchasers with notice would not be protected by it. The English Judges are fettered by a long chain of precedents. We are not só; but at liberty to adopt that construction of the act of 1784, upon this point at least, which is more consonant with the views of the Legislature.

In a gift fairly made, which this undoubtedly was, I am unable to distinguish between the donor and voluntary claimants under ¡lira, and a purchaser with notice, except to the disadvantage of the latter. Against the donor, the donee is protected in the cnjpytnent of the property, because gifts between them were not the mischiefs intended to be suppressed. Shall a person ee fully apprised of the *457 “ (Ionov’s claim9'" be in a better situation than the donor, and bottom his title upon an act, the preamble of which speaks only of the injury done by secret deeds of gift? To him, most clearly, the gift was no secret: he paid Ills money with his eyes open, and with a mind fully conscious that he was buying property which, according to every principle of honesty and rectitude, belonged to another person. In this view of the case, I am unable to bring my mind to a construction of the act of 1784, which shall prefer the title of the purchaser with notice to that of the donee. For I believe the effect of such a construction will he to suppress fraud in one shape, and cherish it in a different and more odious one.

On the remaining question, whether notice be a fit subject for consideration in a Court of Law, I have no doubt. If the just construction of the statute will not sustain the title of a purchaser with notice, he is no more entitled to the support of a Court of Law than to that of a Court of Equity; for the true meaning of a statute is equally' within the aognizance of both Courts. In all cases of fraud too, they have concurrent jurisdiction. The mala^ fules here consists in the purchaser’s assisting the donor to defraud the donee $ and the fact being’ established by means of the notice, neither Court ought to sustain the title. If the act is silent as to the notice', so likewise are the 27th Elizabeth, and what are called the registry acts: yet the cases cited shew that the question has been considered in both i to which may be added Cro. Jac. 158, where the want of notice is a fact stated in the case, on which the Law was pronounced. And as to considering notice at Law, many cases shew that it may be done.* On this head of notice the case presents a question which has never been decided in this Court, nor has the Law been settled by any current of decisions on the circuit. The case of a purchaser at a sheriff’s sale is not applicable; for lie is armed with the rights of, and stands on the same *458eminence with, a creditor. My opinion upon the whole case is in favor of the Plaintiff, and for the reasons I have given: but, as both my brothers think differently, there must be judgment for the Defendant.

‡

3 Co. 83. Cro. Eliz, 445.

†

Cowp. 434.

*

3 Co; 82. a.

*

3 Co. 83.

*

Newl. 408.

†

Cowp. 710.

‡

2 Hayw. 57.

*

Butler Ni, Pri. 260. 5 Co. 60,

†

1 L. Rep, 467.

‡

1 Hay. 289.

*

2 Hay. 66.

*

Plow'd, 58.

*

2 Bro. 149.

†

1 N. R. 335.

‡

9 East. 71.

§

Newlan on Conti. 408.

*

1 Burr. 474. Peake’s N. P. 190, 191.