The bill alleges that Thomas J. Winter, in 1824, being indebted to sundry persons, executed a bill of sale for several slaves to Archelaus Carloss, the intestate of the defendant, in trust to sell and pay the said debts. In 1825 one Haroldson caused an execution to be levied upon the interest of the said Winter in the slaves. At the sale the said Carloss contrived to buy the slaves at an undervalue by (91) representing that he was bidding for the benefit of the wife and children of the said Winter, and thus stifling the bidding. Winter was present and made no objection. After the sale, it being apprehended that Carloss, being a trustee, could not legally become a purchaser, it was agreed between Carloss and Winter that the officer should make a bill of sale to one Farrar, to whom Carloss assigned his bid; that Carloss and Winter should also make a bill of sale to the said Farrar, and that Farrar should then make a bill of sale to the said Carloss; all of which was accordingly done.
The plaintiffs allege that the bill of sale so made to Carloss, although upon its face absolute and for the apparent consideration of $950, was made in trust that Carloss would sell as many of the slaves as might be necessary to pay off the debts, and hold the rest of the slaves in trust for the wife of the said Winter and her children; but that this trust was not inserted in the deed, nor was any written memorandum thereof taken, because of the confidence reposed in the honesty and friendship of Carloss.
In 1827 Thomas J. Winter died, soon after which Carloss took the slaves into his possession, sold two of them for a price sufficient, or nearly so, to pay off the debts, and held the rest in his possession up to his death in 1845.
The prayer is that the plaintiffs, who are alleged to be the wife and children of the said Winter, for whom the said trust was declared, and their husbands and representatives, may be allowed to redeem by paying the balance of the encumbrances, if any, and have an account, etc. The plaintiff Nancy Brown was the wife of the said Winter. She married *Page 76 the other plaintiff, Brown, soon after the death of her first husband. The plaintiff Joseph is a son of the said Winter, and was born after the execution of the bill of sale to Carloss. The plaintiff Martha and her sister Frances, who is the intestate of the other plaintiff, Marks, (92) were the only children of the said Winter living when the bill of sale was executed.
The defendant, who is the administrator of Carloss, does not admit the trust, but avers that, according to his information and belief, there was no such trust; and insists that, as his intestate held possession of the slaves from 1827 to his death in 1845, claiming them as his own, the trust or equitable estate of the plaintiffs, if they ever had any, will be presumed to have been satisfied or abandoned. A court of equity will compel the discovery of a secret trust, to enforce it if lawful, or declare it void if unlawful, whenever the fact of its not being declared in the conveyance creating the legal estate is caused by fraud or circumvention, or is the result of accident or mistake, or the omission is by design, the trust being unlawful and the object of secrecy being to evade the policy of the law. The Court in all these cases proceeds upon the idea of preventing fraud.
The trust alleged in this case is an expressed verbal trust, which the parties did not choose to set out in the deed. It is not admitted by the answer. There is no allegation that fraud or accident prevented its being set out in the deed. On the contrary, the bill states that "no written promise or other memorial of this undertaking on the part of Carloss was executed, the parties having an unbounded confidence in his honesty and friendship." So the question intended to be raised is, Can a bill of sale for slaves be added to by parol proof, so as to show that, although absolute upon its face, it was upon a trust, no fraud being alleged and no reason being assigned why the trust was not expressed in the deed?
(93) The question is one of much interest. We do not feel at liberty now to dispose of it, because the decision of the case does not make it necessary, and we prefer to put the decision upon another ground, especially as the proof made of the trust is very vague and uncertain, consisting mainly of the recollection of conversations held with Carloss in reference to the slaves, not agreeing as to the precise nature of the trust, and stating no facts or circumstances dehors the deed so as to make it probable, independent of mere words, that there was a trust.
As to the plaintiff Joseph Winter, the bill must be dismissed, because he was not born until after the trust was executed; and its being for *Page 77 Mrs. Winter and her children, would, in the absence of any words to enlarge the meaning, be confined to the two children then in esse.
As to the other plaintiffs, the bill must be dismissed, because there is nothing to repel the presumption that the trust or equitable estate has been satisfied or abandoned. The intestate of the defendant held the slaves as his own for nearly twenty years, during which time there was no recognition of any right on the part of the plaintiffs. This case furnishes a strong illustration of the wise policy of the statute. It is an attempt to set up a verbal trust after the death of the original parties and after the lapse of twenty-one years! Mrs. Winter, now Mrs. Brown, married soon after Carloss took the slaves into possession. No reason can be assigned why she did not set up her claim. There is no saving on account of coverture in the statute, and as a husband has a right to receive satisfaction, release, or abandon an equitable estate of his wife in slaves, there is nothing to repel the presumption.
The same observation is applicable to the claim of Mrs. Marks and her sister. It may be that if the pleadings had been amended so as to make the allegation of infancy and set forth the dates of their respective marriages, there might have been something to repel (94) the presumption as to them; but there is no such allegation, and although it is quite probable that they were both infants at the time the trust was executed and when Carloss took possession, we are bound by the pleadings.
PER CURIAM. Bill dismissed with costs.