The judgment of the court was pronounced by
Rost, J.Elizabeth Hall, and her husband, Dixon Hall Jr., in right of the said Elizabeth, and of their common children, and William T. Hall, as trustee for their benefit, have enjoined the sale of certain slaves, taken under execution, as the property of Alfred G. Hall, at" the suit of the defendants against him, on the ground that those slaves formerly belonged to Dixon Hall, Sr., a citizen of the State of Alabama, who bequeathed.them by his last will to Wm. *750T. Hall, in trust for the parties now claiming them. They allege, that the testator died in 1839, that the will was duly probated and the slaves delivered in execution of the devise, and that they never have parted with the title.
The defendants have pleaded the general issue, and denied that Dixon Hall, Sr. ever was the owner of the slaves; they aver that,vat the time of the seizure, Alfred G. Hall, held the slaves, under a title from Dixon Hall, Jr., to whom they originally belonged, which title was duly recorded in the parish of the domicil of the said Alfred G. Hall. They deny any transfer from Dixon Hall, Jr. to his father; aver that Dixon Hall, Sr. never was in possession of the slaves, and that if atitle exists from his son to him, it is fraudulent and simulated. They pray for the dissolution of the injunction, with damages, and for general relief.
After hearing, the district court perpetuated the injunction, and the defendants appealed.
On the trial the plaintiff offered in evidence the testimony of Amy Hall, taken under commission, to prove the genuineness of the deed from Dixon Hall, Jr. to Dixon Hall, Sr., and to identify the slaves named therein with those mentioned in the will of Dixon Hall, Sr. and that they were delivered to Elizabeth Hall, which evidence was objected to by the defendants, on the ground that the witness was the mother of Dixon Hall, Jr., and the grandmother of his children, and incomptent, as such, to testify in a suit id which they were parties. This abjection was sustained by the court, and the plaintiffs took a bill of exceptions.
The ruling of the court is based upon an express provision of the code (C. C. 2260); it is no argument to say that the witness would be competent to testify for Elizabeth Hall, if she was alone in court, and that the evidence should therefore have been received, so far as she is concerned. Elizabeth Hall has no distinct interest in the property ; she claims jointly with her children, and if they have any title, the title of both is the same, and as she has joined her children in the prosecution of the suit, the testimony which is inadmissable as to them, is equally so as to her. See Guerin el al. v. Bagneries, 13 L. R. 15. Jedediah "Leeds etal. v. John Caldwell et al. 1R. R. 256. The disposition of the will under' which plaintiff claims title is as follows; “T give, devise and bequeath unto my son, Win. T. Hall, in trust for Elizabeth Hall. the wife of Dixon Hall, Jr. and their children now born, and those that may hereafter be born during their lives, all the negroes embraced by name in a bill of sale made by Dixon Hall, Jr. to me, sometime in the month of March, 1839, and the said property, as described in the bill of sale from Dixon Hall, Jr. to me, is to bo the property of the wife and children of the said Dixon Hall, Jr. to their sole and separate use; and if the said Dixon Hall, Jr. shall die, and his wife marry again, then the whole of the property shall be absolutely vested in the trustee, for the children of the said Dixon Hall, Jr.”
It is in evidence, that after the death of Dixon Hall, Sr., the will was duly probated and recorded, but no acceptance of the trust by the trustee, or actual delivery of the slaves has been shown. Without inquiring how far such a testamentary disposition would be recognized by our courts, in relation to the slaves mentioned in it, after their removal to Louisiana, we will assume that the parties, collectively, have alleged a legal title.
It has been urged, in behalf of the defendant^, that the slaves bequeathed, should have been named in the will; that the reference to the bill of sale is vague and indefinite; and that the bequest is void for want of certainty; that if it is not, the sale referred to should have been annexed to the will, and probated as a part of it.
We are of opinion that a testator may so construct his disposition, as to render *751it necessary to have recourse to some document, in order to elucidate or explain hisántention, and that the document referred to, may be consulted for that purpose, and need not be probated as forming a' part of the will. Jarman on Wills. 82. 13 L. R. 17. But whatever be the nature of the document referred to, it must be clearly identified as the instrument to which the will points. The instrument adduced in evidence as being the one to which the testator had reference, is a receipt from Dixon Hall, Jr. to him, for twenty thousand dollars, in full for the slaves therein named, bearing date the 5th day of March, 1839; at the foot of the receipt is the following memorandum: “I am to deliver the above named negroes to Dixon Hall, Jr., as soon as I save my crop.” The defendants have expressly denied the identity ofthis document, With the one to which the testator had reference, and have alleged that if the identity should be shown, the instrument is fraudulent and simulated. This document is a simple receipt, and not properly speaking, a deed of sale; there are no witnesses to it; its existence, at the time it bears date, is nowhere shown, and we are not informed in whose hands it has remained ever since ; for aught that appears to the contrary, it may have been fabricated on the day it was produced in court, for the purposes of this suit. To establish the identity, which it is incumbent upon the plaintiffs to show affirmatively, they rely on the testimony of McFee, Barnham, Wallace, Hickman and Jumper. The two first proved the signature of Dixon Hall, Jr. to the receipt. The testimony of Wallace is immaterial. Hickman states that the negroes in question were originally in possession of Dixon Hall, Jr., in the State of Alabama, and that he claimed them as owner; that in March, 1839, the witness thinks on the 9th of that month, Dixon Hall, Jr. conveyed all his slaves and all his property of every kind, to his father, by a bill of sale, and that Dixon Hall, Sr., subsequently made his will and devised the property mentioned in said bill of sale, to the wife and children of Dixon Hall, Jr. Jumper states, that sometime in March, 1839, he saw Dixon Hall, Sr., on his way to his son’s, Dixon Hall, Jr.-, he told the witness that his object in going to his son was to buy his property; that his son had become involved, and that he had loaned and paid out $16,000 for him, and that he was going to purchase his property, to make himself safe. A few days after this conversation, the witness saw him on his return from his son Dixon, and he then told witness, that he had purchased out Dixon, in toto; that he gave him, for his possessions, $21,000, including his negroes, mules, horses and stock of'all descriptions, his land and household and kitchen furniture. He further informed the witness, that his object was, not only to secure himself, but also to prevent his son’s property from being sold to pay his security debts; that all of Dixon’s own debts should be paid, but his property should not be sold to pay his security debts.
The instrument to which these witnesses refer, is one in which lands, stock, horses, mules, household and kitchen furniture, were included with slaves, and which must have been clothed with the formalities required for the alienation of real estate. The consideration of it was twenty-one thousand dollars, not twenty thousand dollars, as the receipt states, and it bore date the 9th of March, while the receipt purports to have been executed on the 5th of that month. It is sufficient to say, that this testimony does notprove, beyond allreasonable doubt, the identity of the receipt offered, With the bill of sale to which the will has reference. Had the identity been proven, we aré of opinion that the plea of simulation set up by the defendants, is fully sustained by'the evidence.
It is shown that Dixon Hall, Jr., was in possession of these slaves in the State of Alabama, as owner; and that he remained ifi possession, and acted as owner *752ever afterwards, until he sold them to Alfred G. Hall, on the 28th day of March 1848. That he removed with them from Alabama to Mississippi, with all the slaves, which, it is pretended, his father bequeathed to his wife and children; that he sold ten of them to Hr. Burt, without any objection being made by the trustee, or Elizabeth Hall; and that, subsequently, he sold those, now in controversy, and others, to Alfred G. Hall, who removed them to the parish of Morehouse, in this State, to the knowledge of the plaintiffs, and without objection or hindrance from them.
One of the witnesses, who had the best opportunity of knowing, swore, that the transfer from Dixon Hall, Jr., to his father, was unreal, and made for the purpose of defrauding the creditors of the vendor. Another witness states, that it was notorious in the neighborhood, that the sale was a sham. The character of those witnesses, for truth and veracity, is unimpeached. Jumper, the very witness upon whom the plaintiffs mainly rely, answers, as follows, one of the interrogatories put to him: “I was well acquainted with Dixon Hall, Sr., and he was a man of high character and standing, and, I think, deservedly so; he. was'proud of property, and loved his children; and Ido not believe that he thought this arrangement with his son, such a fraud as a father might not practice for his son; I do not think that Dixon Hall, Sr., under ordinary circumstances, would be guilty of a fraud.”
The impression produced upon our minds by this evidence, is directly the reverse of that which counsel intended to produce in offering it. We understand this witness to say, that Dixon Hall, Sr., would not have been guilty of fraud, without a sufficient motive; but that he loved his children more than his good name, and thought it but right to assist them in defrauding their creditors, which the witness clearly intimates he had done in this instance.
It has been urged, that by the memorandum appended to the receipt offered in evidence, the slaves were not to be delivered till after the vendor had gathered his crop; and that, as his father died before that time, the want of actual delivery is not a badge of fraud. This reservation forms no exception to the disposition of article 2156 of the code. In all cases, when the thing sold remains in the possession of the seller, and he retains possession by a precarious title, as is the case here, there is reason to presume that the sale is simulated; and with respect to third persons, the parties must produce proof of their good faith, and establish the reality of the sale. This has not been done. The declarations of Dixon Hall, Sr., made to Jumper, and offered in evidence by the plaintiffs, so far from proving the consideration of the sale, go far to show that it was unreal and simulated.
Had the witnesses in this case been examined in open court, the conclusions of the district judge would have had great weight with us, but as the testimony relating to the identity and simulation of the deed offered, was all taken under commission, we have had the same means which he had of passing upon its credibility, and more time to give to the examination of the case.
There is nothing before us to show that Dixon Hall, Jr., ever parted with his title to the slaves, until he sold them to Alfred G. Hall, on the 28th of March, 1848. This sale was duly recorded in the State of Mississippi, and also in the parish of Morehouse, where Alfred G. Hall removed with the slaves. He was the owner of the slaves on the public records of the country, and in actual possession of them, when the defendants obtained and recorded them judgment.
The execution on this judgment issued on the 28th of May, 1849, and the slaves were seized on the 30th. It is in evidence, that on the' 25th of March, *7531849, Alfred G. Hall reconveyed the slaves to Dixon Hall, by a private act, which was recorded on the 28th of April, following; and the plaintiffs urged that this recording was notice to the defendants, and that after its date, they could not seize the slaves as the property of A. G. Hall. There is no evidence in the record, of the delivery of the slaves to Dixon Hall, under this sale; and the possession still continued in Alfred G. Hall, at the time of the seizure, under article 2156 of the code already cited, the legal presumption is, that the retransfer, without delivery of possession, was simulated; and it was incumbent upon the parties to it, to show its reality. This has not been attempted; so far from it, the evidence introduced by the plaintiffs, to show that the slaves had been all the time, and were at the time of the seizure, in the possession of Elizabeth Hall, and her property, is inconsistent with that hypothesis. We are, therefore, of opinion, that the seizure was properly made, and that the injunction must be dissolved.
It is therefore ordered, that the judgment in this case be reversed, the injunction dissolved, and the slaves seized subjected to .the defendants execution. It is further ordered, that the plaintiffs, as principals, and Alexander D. Peek, Bowles Billingsby, and Thomas N. Barnham, as securities upon the injunction bond, be adjudged to pay the defendants, in solido, one hundred dollars damages. It is further ordered, that plaintiffs pay costs in both courts.