The first question which presents itself, is, does -the bill disclose a case of which a court of equity can take jurisdiction? Upon this point, the material allegations are, that the husband of the complainant, in his lifetime, conveyed to the intestate," Sledge, several slaves, (particularly described,) for the twofold purpose — 1st, Of securing to the intestate' the sum of seven hundred and ;twenty-five dollars, which Dr. Clopton owed him fora previous indebtedness and for money then lent; 2d, To cáuse a settlement to be made on the complainant The first object being effected, the intestate undertook to convey the slaves to some suitable persop in trust for the sole and separate use of the *599complainant, so that they should not be liable for the debts or contracts of her husband. It is also alleged, that one or two years after the slaves were thus delivered to the intestate, the complainant tendered to him the sum'for which they were pledged with all interest due thereon, and requested that he would convey the same to trustees for her sole and separate use according to the terms of his agreement. Without denying that he held the slaves in trust, the intestate declined a compliance with her request, saying that she had borrowed the money from a friend, and that he had as well hold them as the friend; and upon being assured that he was mistaken, he then objected to delivering them up, because her husband ovred him other debts.
A separate estate to the use of a married woman may be created either before or during coverture; and after marriage, as well by the husband as a stranger. [Clancy on Rights, 251.] But the act by which the husband divests himself of his property must be clear and unequivocal; though it is not always necessary to induce a court of equity to sustain it in favor of the wife, that trustees should be interposed. The powers of that court are competent to effectuate it by the appointment of a trustee, and where no other is designated, will generally treat the husband as such. [Clancy on Rights, 259 — 260. See also, McLean v. Logland, 5 Ves. Rep. 71; Walter v. Hodge, 2 Swanston’s Rep. 97, 109; Shepard v. Shepard, 7 Johns. Ch. Rep. 57.]
In Shepard v. Shepard, [7 Johns. Ch. Rep. 57,] the father conveyed land to his son, on the latter covenanting to pay an annuity to his mother, during her widowhood: held, that she might maintain an action on the covenant for her benefit, and a release of the covenant by the husband in his lifetime, is fraudulent and void as it regards her. The court say, “The relationship between the husband and wife was sufficient to entitle the plaintiff to her action upon the covenant to her husband, and which was made for her benefit. The consideration enured from the husband, and arose from the obligations of that relation, and the release of the son from his covenants, by the father, was fraudulent and' void, as respected the plaintiff, who had the sole beneficial interest in the covenants, and who was alone entitled in equity to release them.” [See also, Dalton v. Poole, 2 Lev. Rep. 210; Martyn v. Hind, Cowp. Rep. 443; Doug. Rep. 142; Marchington v. Vernon, 1 Bos. & Pul. 101, note a.]
*600In the caso before us, the husband conveys to a third person, who, it is stated, undertook to convey the same property to trustees, so as to create a separate estate for the wife whenever she paid him a sum of money which the grantor owed him. Here* the husband has divested himself of the estate'in the-slaves, and parted with the possession to one, who has engaged to perfect his intentions. The inducement of Dr. Clopton, so fat* as‘the bill informs us, thus to provide for., the complainant, was certainly sufficient, and the motive in itsélf commendable. If no settlement had been made on her previously, and the fair inference is, that none had, the’husband was but obeying'the mere'dictate of duty in securing to the wife the small patrimony with which she had been advanced- by her fathér. ‘ The contract" of Sledge made him a trustee for the complainant, sub modo', and he was bound to execute it according to its terms. True, in order to em title the complainant to claim the' benefit of the provision which her husband had made for her, it was necessary that she should pay, or offer to pay the amount for which the- slaves .were pledged to the intestate. The alternative-of this duty,.the bill alleges, was performed.
It is unnecessary to determine whether the contract of the husband, so far as., he attempted to provide for his wife, was, as it respects himself, a nudumfactum.. If the law be correctly laid down in- the case cited from 7 Johns. Ch. Rep., it would seem that it was not, competent fon Dr. Clopton to have released Sledge from an execution of the trust; but be this as it may, it is not pretended that a release was attempted. We have seen that the husband may create a separate estate for his wife even during marriage; and his obligation to provide for her, will, as it respects Kimself, constitute an adequate consideration for, such an act. This being the case, the complainant must be regarded as standing in a predicament which entitles her to the favorable consideration of a court of chancery. But conceding that the contract between the husba'nd and the intestate, was gratuitous so far as it concerned the wife, and th'e defendants gain nothing by the concession. It is an unquestionable principle, upon which equity often acts, that where one person receives a conveyance of any description of property, Upon a verbal agreement, that he will transfer or dispose of it absolutely or conditionally for the benefit of another, he is bound to perform his engagement. He is *601tfeated as a trustee, and his refusal to execute the trust Considered a fraud. To hint, it is wholly unimportant whether there was any consideration of pecuniary value, or founded in moral or social duty, moving from the cestui que trust, to induce the act of the grantor. As it respects tho trustee, it is quite enough to say, that the grantor has willed it, and you have undertaken to consummate his purpose. [Kennedy’s heirs and ex’rs v. Kennedy’s heirs, 2 Ala. Rep. 571.] From this View, it results that the bill is not wanting in equity; and, Consequently, that the court very properly refused to sustain the demurrer*
This brings us to inquire, whether the case, as stated, is sustained by the proof. Waldigrove Clopton, Mrs. Lees and Mrs.Mitchell all testify that the transaction between Sledge and Dr. Clopton was such as the complainant alleges. The two former say that they heard a part of the writing, executed by Sledge, read, that it provided for the retention of the slaves by him until his debt was paid, then, to use their own language, they were to be made over to the complainant. The latter witness harmonizes with them in her statement, but says nothing about the writing. Aftef the Writing was executed, and Sledge was about to remove the negroes to his own home, they all affirm that he repeated to the complainant his contract with her husband, just aS the two former witnesses had understood it from having heard it-read.
It is quite probable that Mrs. Mitchell never heard the contract read, as it is stated by W. Clopton, that she merely passed through the room while it was being executed. This, perhaps, may account for her silence in respect to it. The fact that the pony was conveyed by the deed of trust from Dr. Clopton to Sledge, would not be sufficient to show that another, or even the same, was not embraced by the writing in question. But be this as it may, it does not authorize us to disregard, in toto, the testimony of W. C.; it would merely prove that his memory was at fault in one particular, not very essential, and if his evidence stood alone and unsupported, we might accord to it less influence; but sustained as he is by the direct evidence of two witnesses, as to the material points, he must be believed. At most, in the immaterial matter, he is only chargeable with a mistake, to which any one, after a lapse of twelve years, would be subject.
*602The testimony of these witnesses is sustained by all the others whose depositions are taken at the instance of the complainant, with the exception of Wyman; and his evidence, (even if admissible,) proves nothing materia] for either party. The great difference between the sum for which the slaves were conveyed to Sledge and their true value, is a strong circumstance in connection with others, to show that the sale was not absolute. So the failure to deny the right of the complainant to redeem at the time about which Tarver testifies, is another corroborative circumstance which, if necessary, might be appealed to. Add to ■all this the evidence of Campbell, that Sledge told him, in 1828 or ’29, he had to buy the negroes of Dr. Clopton for the complainant, and it must be admitted, that unless the countervailing ■evidence overbalances the proof in her favor, the case, so far :as •it depends upon the facts, is well made out.
The testimony of Harris, whose deposition was taken for the ■defendants, proves that Dr. Clopton, in 1829 or ’30, sold Scilla •and her three children, who are named in the bill, to Sledge, with the assent of the complainant — that there was no written ■or verbal -agreement entered into or spoken of, creating a trust or condition. This transaction took place at Dr. Clopton’s residence in Montgomery, when no one else was present but the witness, complainant and the parties. Witness left Sledge at Dr. Clopton’s house, and on the second day thereafter, the negroes ■reached the residence of S. in the country. He knew nothing of the sale of Celia, though she accompanied the other slaves to their new home. The testimony of this witness is not at all ir-reconcileable with the other evidence in the cause, but the fair inference is, that although the terms for the sale of some of the negroes were agreed on, yet the transaction was modified; that Rose and her child were also embraced by it, and instead of being absolute, it was made such as the complainant’s witnesses represent it. The witnesses, who make out the case, show, by their evidence, that Harris was not present at the time the contract, of which they speak, was consummated; and as the slaves were removed by Sledge immediately thereafter, it is clear that they depose to a transaction which was perfected after he had left the parties. This view is sustained by the evidence of Campbell, and enforced by the principle which requires that even con*603flicting testimony shall be reconciled as far as practicable, so that witnesses shall receive all due credence.
As the testimony of the complainant’s, witnesses are not im* pugned, either directly or by conflicting proof, the relation which the three first, whose testimony is commented on, bears to her, can have no influence upon their credibility; and we are not particularly called on to notice the fact. They are confessedly competent — have made a statement consistent with itself, and according to the course of procedure in equity, it must be regarded as true.
It is argued for the plaintiffs in error, that the witnesses who speak of the execution of a waiting by Sledge, heard it read but in part, and cannot, consequently, prove its contents, so as to enable the court to enforce its execution. If it is shown that the intestate had no claim upon the slaves in question, save only to secure the payment of seven hundred and twenty-five dollars? that sum being paid, an objection that it does not appear what ulterior disposition shall be made of them, when urged by his representatives, should receive but little favor. It is true, that the two witnesses who testify as to the writing, do not profess to have heard it all read, yet they speak of it in such a manner as to induee the conclusion that in this they were probably mistaken: they say that it professed to convey to Sledge the negroes as a security for the payment of a certain sum of money due' him, and upon that being paid, they were to be transferred by Sledge to trustees for the separate use of the complainant. This is about every thing that one would expect to find in such a writing. Besides the three witnesses who were present when the transaction was consummated, affirm that the intestate stated to the complainant, that such was the contract he had made with her husband.
But conceding that the proof upon this point is not so explicit as could be desired, does it furnish a reason why the intestate’s representatives should be protected in the possession of property to which it is clear they have no title? A similar objection was made to setting aside the deed in Kennedy’s heirs and ex’rs v. Kennedy’s heirs, [2 Ala. Rep. 622.] The court held, that it could not be sustained, though from a defect of proof it might be impossible to execute entirely the intentions of the grantor. ‘-If the law were otherwise, the grantor and his heirs might have ao> *604quired an indefeasible estate, without having paid any equivalent therefor.” If the intestate was a trustee, with a lien for the payment of a debt, the debt being paid, his representatives have no further claim upon the property except for the purpose of executing the trust; and the details of the settlement raise a question in which the complainant and the distributees of her husband are mainly interested, And the latter, as they are not parties to this litigation, are not concluded by the decree of the court. But we repeat that.the proof, so far as the present caséis concerned, is sufficient to enable the court to determine, what should be the terms of the settlement.
In respect to the proof of the loss of the writing, we think it entirely satisfactory. After establishing its existence, the witnesses state where they had last seen ir, and that it could not be there found, or amongst the papers of those persons to whom its custody would most probably be entrusted.
The evidence of Tarver is quite sufficient to prove a demand of the slaves by the complainant in 1830 or ’31, and an avowal of her readiness to pay to Sledge the amount of his lien, as well as the refusal of the latter to relinquish the possession of them.— This, although not an actual tender, is equivalent to it, as the re-refusal to receive the money made the offer of it unnecessary. The evidence of this witness is strongly sustained by Mrs. Lees.
It is not allowable for the defendants to avoid the execution of the trust, which had been undertaken by Sledge, by setting up the indebtedness of Dr. Clopton. That is a matter with which they should have no concern. If the creditors are willing to acquiesce in the provision which is made for the complainant, no objection can be listened to from any other quarter; and least of all from those, who stand in the predicament of one who has undertaken to be the executor of the debtor’s bounty. [Clancy on Rights, &c. 279 — 280; Curtis v. Price, 12 Ves. Rep. 103.] Conceding that the transaction between Dr. Clopton and Sledge, so far as it relates to the complainant, was voluntary, and intended by her husband to defeat his creditors, yet is it competent for one who has engaged to carry out the husband’s intentions, to object to a compliance, because the latter intended to defraud some third person, or such was the legal effect of the thing done? We think not. To entitle the defendants to litigate this question, even if the doctrine of estoppel interposes no barrier, they should show that *605they have an interest in defeating the settlement upon the complainant, beyond that of the testator.
But it is said, that the trust should not be enforced, so as to prevent the collection of other debts due Sledge, than those for which the negroes were pledged. This objection is most clearly indefensible. If Dr. Clopton was indebted to the intestate at the time he transferred to him the possession of the slaves, in an amount beyond what it was stipulated they should secure, the undertaking of the latter to settle them upon trustees upon being paid the sum provided for, would be a waiver of all right to subject them for the payment of further liabilities.- This waiver might be maintained as a contract; the consideration for which would be, that the slaves had been conveyed for the security of a debt agreed on by the parties; an act which, it may be inferred from the proof, was induced by the intestate’s stipulation in favor of the complainant. The refusal to perform such an undertaking would be a fraud on Dr. Clopton and the complainant, and a breach of good faith, which a court of equity cannot favor. [Clancy on Rights, 508-9.]
In respect to liabilities incurred by Dr. Clopton, subsequent to the transaction in question, the trust which was conferred upon the intestate for the benefit of the complainant, would prevent the slaves from being charged with their payment. Where one parts with the possession of property to the donee, it cannot be subjected to the payment of debts afterwards contracted; especially where it is not shown that the gift is intended to defraud subsequent creditors. In the case before us, the pretence for charging the property with such debts, is much less plausible than in the case supposed; for here the creditor was the trustee, had possession of the slaves, and knew that the debtor had parted with all his interest in them.
The act of 1802, “For the limitation of actions,” &c., [Clay’s Dig. 326-7,] after declaring the time within which actions of detinue, trover' &c., shall be commenced, provides as follows: “That if any person or persons, who is, are, or shall be entitled to any of the actions hereinbefore specified, is, are, or shall be, at the time of any 'such cause of action accruing, within the age of twenty-one years, feme covert, or insane, then such person or persons may institute such action, so that the same be instituted within such time as is before limited, after his, her, or their com*606ing to or being of full age, discovert, or of sane memory.” The case at bar is more like the action of detinue than any other form of action at law; and, consequently, if either of our statutes of limitation be applicable, it is the one cited, But the proviso of this act declares that it shall not operate against a feme covert; and there is, therefore, no pretence for supposing that the statute began to run against the complainant previous to the death of her husband — an event which occurred in September, 1836. The bill was filed in December, 1841, within less than six years after the complainant became discovert; and, consequently, before the statute bar was complete.
The period of limitation prescribed by the statute, not having expired, the complaint cannot be said to be of an origin so stale, that a court of chancery should refuse to recognize and enforce it. If there is a statute applicable to the case, the doctrine of staleness need not be invoked. But conceding that the case is not embraced by the statute; and still we think its antiquity is not such as to authorize its repudiation. During the life of the husband, the wife is subject to his dominion and control, and cannot be expected either to release or assert her rights, unless it be with his advice and, perhaps, co-operation. N'o presumption, then, can be made embracing the time previous to the death of the husband, that the demand of the wife has been adjusted; but all presumptions must take date from the dissolution of their union by death. This being the case, only five years and three months had expired from the time the complainant became dis-covert — a period quite too short to warrant the rejection of her complaint in consequence of its staleness.
We have already seen that the trust in favor of the complainant attached, sub modo, as soon as the slaves were transferred by her husband to Sledge, and that it was only necessary to pay or tender the amount due to the latter, to entitle the complainant to an execution of the trust. The case cited from 7 Johnson’s Chancery Reports, if authority to the point were necessary, very satisfactorily shows that the complainant may sue.
The decree, in its details, has not been questioned, and seems to us to be most equitable, it therefore results that it must be affirmed, with costs.