By the Court.
Benning, J.delivering the opinion.
Ought the Court to have granted the motion for a new tri.-al?
The plaintiff’s case was such, that it became necessary for him to show that the lots of land and the negroes to which rthe testimony relates, belonged to the estate of Ñaman S. Tucker,, deceased, and that the defendant had, since Tucker’s death, as executrix of her own wrong, intermeddh-d with ■.them. Every question in the case grows out of his - ndeavor *462•to establish these two points. It is in reference to them, therefore, that every question has to be considered.
And the case is also such, that the plaintiff, in making out ¿these two points, was not entitled to refer to the Statute of the 13i/j Elizabeth, that annuls deeds made by debtors to defraud creditors, for none of the deeds in the case were made by the debtor. Not one of those deeds was made by N. S. Tucker. These deeds, if in the plaintiff’s way, he had to overcome by showing that the consideration on which they -were founded, or the property which they conveyed, was supplied by N. S. Tucker.
The first ground of the motion for a new trial, was the refusal of the Court “ to permit the plaintiff to prove the insolvency of A. Baber in 1839, at the pretended gift of the negroes in the deed made by him.”
The deed referred to, is a deed made by A. Baber, which contains a covenant of his to stand seized of certain slaves to the use of Artemesia W. Atkins, Elvina A. Tucker Atkins, and Rodolphus S. Tucker Atkins. And these are the parties of the second part to the deed. The deed was made in 1839.
When the deed was made, then, Artemesia W. Athins had mot become the wife of N. S. Tueher. This is the inference, ■and there is nothing to rebut it in the evidence.
But unless she was Tucker’s wife at the time when the •deed was made, there can be no room for the presumption that he furnished the consideration for the deed.
Of what consequence, therefore, can it be in the case, whether Baber was insolvent or not at the time when he made the deed.
Besides, the deed is for the benefit of others besides Arte•mesia W. Atkins. It is for the benefit of two of her children as well as for her benefit; and it is not to be presumed that Tucker, even if the mother was his wife, supplied the consideration that caused the deed to be in part for the benefit of the children. They were not his children.
.And, indeed, to say that the mere insolvency of a person *463who covenants to stand seized of property to the use of a-, wife, is evidence that the husband some how furnishes either-the consideration or the property, is to go some distance for a conclusion.
[1.] This was not a sufficient ground, as we think.
The next ground of the motion, was the refusal of the-Court “ to permit plaintiff to introduce, as evidence to proveN. S. Tucker’s indebtness, the two notes sued on.”
We suppose that by “ indebtedness,” is meant insolvency»
[2.] Concede, then, that Tucker was insolvent in 1837, is any thing to be inferred from that, to the effect that he furnished the consideration or the property, for deeds that were made afterwards ? Certainly not. Be it remembered, that none of the deeds were made by him. If he was insolvent, the presumption is that he was not able to make a gift.
We see nothing, then, in this ground.
The third ground of the motion, was the permission to the defendant to prove by Hardeman and Bivins the sayings of William Atkins, at the time of the loan made by Hardeman to him.
[3.] It was clearly the right of the defendant to prove the fact of the loan. If so, it was, as a consequence, also her right to prove any declarations made by Atkins, which accompanied that fact, and which were suitable to explain the fact or to be a part of the fact. (Ph. Ev. 231, Cow. & Hill’s Note, No. 444.)
And such were the declarations of Atkins, testified to byBivins and Hardeman.
And the same may be said of the acts of Atkins, consisting in the payment of the taxes on the property while he “ controlled” it. They were acts, naturally, if not necessarily, accompanying the control of the property.
The fifth ground is one which this Court is not sure it understands. If the “ruling” excepted to was, that Baber’s, agreeing to stand seized of the slaves for the use of Mrs. Atkins and her two children, was consistent with the fact, that some other person than N. S. Tucker might have furnished *464the consideration to Baber for such agreement, or with the-fact that some other person than N. S. Tucker might have-supplied, the slaves of which Baber agreed to so stand seized, we can see nothing wrong in the ruling. At the time of this covenant of Baber’s, Mrs. Atkins, as it seems, had not become the wife of Tucker. What reason, then, was there for his concerning himself with the covenant to the extent of being the main party in it1 — the party supplying the consideration or the property? We see none.
In respect to the sixth ground, we agree with the plaintiff’s Counsel, that there is a limit to the widow’s privilege of using the house and servants of her deceased husband, short-of that mentioned by the Court. The Court, we infer, said that the widow could not sell the house and servants of the-deceased husband, without becoming executrix of her own wrong, and there stopped. If the Court meant that she-could do every thing else with them without becoming such executrix, we differ with the Court. But we suppose the Court meant nothing of that sort, but merely meant to give-an instance of what would make a widow an executrix in her own wrong.
The seventh ground is the important one. It is made up of a charge and a refusal to charge.
We understand the decision of the Court complained of in this ground to amount to this: that Mrs. Tucker, by virtue-of the several deeds, had at least a color of title to the property with which she intermeddled, and that having a color of title to the property, to intermeddle with it would not make her executrix of her own wrong, even if the property really belonged to the estate of Tucker, as far as his creditor, Clayton, was concerned.
Was a decision amounting to this right?
Let us suppose these to have been the facts of the case, viz: N. S. Tucker, a man in failing circumstances, at a time when he owed two notes to Clayton, furnished the money that was the consideration for the several deeds, or supplied the property that was conveyed by the deeds, and did so with *465the design to defraud Clayton out of the money due on the notes. The property went, under the deeds, into the use and: possession of Mrs. Tucker, and remained so until Tucker’s, death ; and-afterwards, until the commencement of this suit.
And according to what it is likely was the plaintiff’s view-of the evidence, these were the facts of the case.
.Supposing,.then, these to have been the facts of the case, the case was such that, in law, the property belonged to Mrs. Tucker (and the children) as against Tucker, but not as against Clayton. The property was still subject to the payment of Clayton’s debt. With that exception, it was entirely Mrs. Tucker’s.
This legal consequence will hardly be disputed.
The sole question then, in such a case, with Clayton, would be how to get at the property. And the question would be-one of difficulty. His debt not being in the form of a judgment, he could not makl a levy on the property. If there was a regular administrator of Tucker, and he sued him and got a judgment for his debt, the judgment would have to Le-one of assets “ quando,” &c. for that administrator would not. have possession of the property or the right to get possession of it. The deeds having been good against Tucker, his in-.testate, would be good against him, he being only Tucker’s, representative. If there was no regular administrator, and he administered, himself, with a view to retain assets for his debt, he would find himself without any assets to retain, and without the means of obtaining any. The deeds would be good against him; and so, would prevent him from obtaining the property that they covered. If he sued Mrs. Tucker as executrix of her own wrong, he would be met by the answer, that she held the property as her own by a title adverse to that of the intestate and good against the intestate; and therefore, that she did not hold it as his executrix. Take what path he might, he would find across it an obstacle to be surmounted. What path ought he to take ? The decisions *466seem to point him to this last path as the one containing the* obstacle most easily to be surmounted.
This we think to be the indication of Hawes vs. Leader, (Cro. Jac. 271,) and Edwards vs. Harben, (2 T. R. 587;) and see 1 Wms. Ex’rs, 151; Roberts on Fraud. Conv. 593.)
If the case had been that of a deed made by Tucker, and' made to defraud his creditors, with possession taken by the donee after Tucker’s death, the donee, these cases decide, would have been executor de son tort. And what difference-is there, in principle, between such a case as that and the case as it is ? None.
It is true that, in general, one who intermeddles under a color of title in himself, is protected from being chargeable as executor of his own wrong. But this cannot be true as a universal rule. Such cases as those of Hawes vs. Leader and Edwards vs. Harben, must be regarded as exceptions to lhe rule; and by analogy to those cases, so must the present-case. See Crosby vs. DeGraffenreid, decided at Macon, January, 1856; Matthews vs. Allen, (7 Ga. R.); Trippe & Slade vs. McGhee, (2 Kelly.)
This decision of the Court, then, seems to us to have been wrong.
We think that if the considerations for the deeds were furnished by Tucker, or if the property conveyed by the deeds was supplied by him, and he being in failing circumstances, procured the deeds to be made in order to defraud Clayton-, and Mrs. Tucker took possession of the property to hold it under the deeds, she became executrix of her own wrong as to Clayton; and that this is what the Court should have charged. ^
This disposition of this point, is a disposition of the next two grounds of the motion, the eighth and ninth.
As to the tenth and last ground, we agree with the Court below. We see no evidence that Mrs. Tucker participated in any fraud, if any fraud was proved.
One of the grounds then, and only one, in the opinion of this Court, was sufficient.