Opinion of the court, delivered by
McGirk, Judge.
The first instruction calls on the'court to say the bill of sale is void. The court did right to refuse this on the ground that the proposition involved the whole question in dispute, and there was not a state of evidence to justify the court to declare the law to be so,
A., by deed, pur-portingto be founded on a valuable consideration, conveyed four slaves to B. with a condition that the possession of tho same should remain in A. until his death. After twenty years possession, A. emancipated them by deed duly acknowledged, &c. —held that however void the conveyance to B. might have been as against subsequent purchasers, or creditors, it is at least good against those claiming under the deed of emancipation; the latter being a voluntary act, and the grantees not being purchasers for valuable consideration.
The second instruction asked, assumes the ground that if the bill of sale was cancelled, then the verdict must be for the plaintiff. Though the court refused to give this in terms, yet the court fully gave the substance of it in another asked by plaintiff.
The third instruction refused, assumes the ground that twenty years possession by Josiah after the date of the bill of sale to Jonathan, prevents the defendant from setting up title. This fact might have great weight in cases where creditors might be concerned, — that is subsequent creditors to the bill of sale: and also it might have Weight where subsequent purchasers might be concerned, all for a valuable consideration, especially where the possession of the vendor is inconsistent with the terms of the ¡sale. But, in this case, the possession of Ramsey, senior, was perfectly consistent with the title of Ramsey, junior. We do not mean to say, however, that this circumstance will save all deeds in such cases from being considered fraudulent, but only say it is some evidence of the fairness of the transaciion. The fact that one man is the owner of property,and that another has the possession, for ten or twenty years, is calculated to deceive the public as to the ownership, and therefore the law looks on such cases with great jealousy. This plaintiff cannot, with any propriety, stand on the ground of a creditor, or a subsequent purchaser, for valuable consideration. There can, in law, be no valuable consideration in such a case; and if there could, yet there is no proof of any. We consider the deed of emancipation as entirely a voluntary deed, passing'no more right to freedom than the donor had aright to slavery in the plaintiff. If Josiah had only a life estate in the slave, he could emancipate for life, and no more. The length of the possession of Josiah was consistent with his right. The defendant’s right of enjoyment did not accrue till the life estate was determined. In our opinion there is no error on this point.
The fourth instruction refused, regards the adverse possession oí the defendant. There is no foundation in the case to raise any question of adveise possession.
The fifth instruction refused, takes the ground that if Ramsey, the defendant, admitted several times that he had no claim to the slaves, it is evidence his pretended bill of sale was cancelled. We are of opinion the full substance of this instruction was given in other words quite as intelligible as in this arrangement of words, and that is enough. We do not see any reason to reverse the judgment for refusing any instruction asked by the plaintiff.
[510]*510The next point is, did the court err in giving any of the instructions given for the defendant. . The first instruct ion given, asserts that if the - slave was the defendant’s, by purchase, she is still his, unless he has sold or disposed of her. In reference to the case, this proposition is true; and although the instruction was not calculated to thro w much light on the points of law in the case, yet it could not mislead the jury. There is no error on this point.
The second given affirms that there is no evidence that Jonathan Ramsey had sold the slave. Although the court might well have refused this, yet it is true in fact. Now, if there had been any evidence at all on this point, and the court had declared there was none, it would have been wrong. There is no error on this point.
The third instruction given, affirms that the fact that the defendant failed, or neglected, to'assert his title, is no evidence he had none, or had released it. This instruction refers to certain testimony given regarding the fact that Josiah had manumitted the plaintiff. The defendant on being informed thereof, said nothing about his right; and when the defendant was asked by another witness why the old man was so anxious to set the slaves free, the defendant said, because Josiah had done an act long ago which he could not undo, but said nothing about his title. There may be cases in which the owner of property ought not to" be silent in regard to his rights when the subject of those rights, or the title, is the subject of conversation; as when a person intending to purchase should tell the owner he intended purchasing the thing of another person. If, in this case, the owner should fail to disclose his title, it might,.according to circumstances, amount to some evidence that the owner had no title, or had released it; or it might, in some cases, be strong .evidence of fraud on a purchasei. But, in the case before us, no such cause existed; Ramsey’s failure to disclose-his title injured nobody, and deceived nobody. The circumstances did not require him, neither iu justice nor propriety, to say one word about his title. We are clearly df opinion that his failure to disclose his title under the circumstances, is no evidence he had none. There is no error on this point.
The fourth instruction given in reference to the case in hand was not wrong, though of no importance.
The fifth asserts that the fact that the defendant did not disclose his title to certain witnesses, does not divest him of his right. This proposition is true in general, and particularly true in this case.
ants under the grantor, It is not necessary to prove any consideration for the bill of sale, as °
The sixth is that whether the character of the defen» dant was good or bad, the jury could not make the character of the defendant any ground to found a verdict on. This proposition only asserts what the general law is, and we cannot see how the giving this instruction could injure the plaintiff. This disposes of all the instructions on Doth sides. As to the question of a new trial, we see no ground arising out of the evidence to interfere.
The third error assigned is, that the court did wrong in permitting the defendant’s bill of sale to be read in evi-s ° donee.
The ground on which this objection is based is, that defendant was bound to show, by proof, the consideration of the bill of sale, and that unless he would do so,. the deed is void against the plaintiff, and she is to be viewed in as favorable a light as purchaser for a valuable consideration.
We view this point in this way, that if a consideration were required to be shewn that the want of such proof would be no lawful reason why the deed hould nsot be read, but it would be a reason why the deed could not operate in law, and so the jury might be told. But, in this case the deed expresses a consideration, Josiah Ramsey and all claiming under him afterwards, are stopped to say there was no consideration, and this being a deed, imports a consideration.
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Opinion of the court, delivered by
McGirk, Judge.
The first instruction calls on the'court to say the bill of sale is void. The court did right to refuse this on the ground that the proposition involved the whole question in dispute, and there was not a state of evidence to justify the court to declare the law to be so,
A., by deed, pur-portingto be founded on a valuable consideration, conveyed four slaves to B. with a condition that the possession of tho same should remain in A. until his death. After twenty years possession, A. emancipated them by deed duly acknowledged, &c. —held that however void the conveyance to B. might have been as against subsequent purchasers, or creditors, it is at least good against those claiming under the deed of emancipation; the latter being a voluntary act, and the grantees not being purchasers for valuable consideration.
The second instruction asked, assumes the ground that if the bill of sale was cancelled, then the verdict must be for the plaintiff. Though the court refused to give this in terms, yet the court fully gave the substance of it in another asked by plaintiff.
The third instruction refused, assumes the ground that twenty years possession by Josiah after the date of the bill of sale to Jonathan, prevents the defendant from setting up title. This fact might have great weight in cases where creditors might be concerned, — that is subsequent creditors to the bill of sale: and also it might have Weight where subsequent purchasers might be concerned, all for a valuable consideration, especially where the possession of the vendor is inconsistent with the terms of the ¡sale. But, in this case, the possession of Ramsey, senior, was perfectly consistent with the title of Ramsey, junior. We do not mean to say, however, that this circumstance will save all deeds in such cases from being considered fraudulent, but only say it is some evidence of the fairness of the transaciion. The fact that one man is the owner of property,and that another has the possession, for ten or twenty years, is calculated to deceive the public as to the ownership, and therefore the law looks on such cases with great jealousy. This plaintiff cannot, with any propriety, stand on the ground of a creditor, or a subsequent purchaser, for valuable consideration. There can, in law, be no valuable consideration in such a case; and if there could, yet there is no proof of any. We consider the deed of emancipation as entirely a voluntary deed, passing'no more right to freedom than the donor had aright to slavery in the plaintiff. If Josiah had only a life estate in the slave, he could emancipate for life, and no more. The length of the possession of Josiah was consistent with his right. The defendant’s right of enjoyment did not accrue till the life estate was determined. In our opinion there is no error on this point.
The fourth instruction refused, regards the adverse possession oí the defendant. There is no foundation in the case to raise any question of adveise possession.
The fifth instruction refused, takes the ground that if Ramsey, the defendant, admitted several times that he had no claim to the slaves, it is evidence his pretended bill of sale was cancelled. We are of opinion the full substance of this instruction was given in other words quite as intelligible as in this arrangement of words, and that is enough. We do not see any reason to reverse the judgment for refusing any instruction asked by the plaintiff.
[510]*510The next point is, did the court err in giving any of the instructions given for the defendant. . The first instruct ion given, asserts that if the - slave was the defendant’s, by purchase, she is still his, unless he has sold or disposed of her. In reference to the case, this proposition is true; and although the instruction was not calculated to thro w much light on the points of law in the case, yet it could not mislead the jury. There is no error on this point.
The second given affirms that there is no evidence that Jonathan Ramsey had sold the slave. Although the court might well have refused this, yet it is true in fact. Now, if there had been any evidence at all on this point, and the court had declared there was none, it would have been wrong. There is no error on this point.
The third instruction given, affirms that the fact that the defendant failed, or neglected, to'assert his title, is no evidence he had none, or had released it. This instruction refers to certain testimony given regarding the fact that Josiah had manumitted the plaintiff. The defendant on being informed thereof, said nothing about his right; and when the defendant was asked by another witness why the old man was so anxious to set the slaves free, the defendant said, because Josiah had done an act long ago which he could not undo, but said nothing about his title. There may be cases in which the owner of property ought not to" be silent in regard to his rights when the subject of those rights, or the title, is the subject of conversation; as when a person intending to purchase should tell the owner he intended purchasing the thing of another person. If, in this case, the owner should fail to disclose his title, it might,.according to circumstances, amount to some evidence that the owner had no title, or had released it; or it might, in some cases, be strong .evidence of fraud on a purchasei. But, in the case before us, no such cause existed; Ramsey’s failure to disclose-his title injured nobody, and deceived nobody. The circumstances did not require him, neither iu justice nor propriety, to say one word about his title. We are clearly df opinion that his failure to disclose his title under the circumstances, is no evidence he had none. There is no error on this point.
The fourth instruction given in reference to the case in hand was not wrong, though of no importance.
The fifth asserts that the fact that the defendant did not disclose his title to certain witnesses, does not divest him of his right. This proposition is true in general, and particularly true in this case.
ants under the grantor, It is not necessary to prove any consideration for the bill of sale, as °
The sixth is that whether the character of the defen» dant was good or bad, the jury could not make the character of the defendant any ground to found a verdict on. This proposition only asserts what the general law is, and we cannot see how the giving this instruction could injure the plaintiff. This disposes of all the instructions on Doth sides. As to the question of a new trial, we see no ground arising out of the evidence to interfere.
The third error assigned is, that the court did wrong in permitting the defendant’s bill of sale to be read in evi-s ° donee.
The ground on which this objection is based is, that defendant was bound to show, by proof, the consideration of the bill of sale, and that unless he would do so,. the deed is void against the plaintiff, and she is to be viewed in as favorable a light as purchaser for a valuable consideration.
We view this point in this way, that if a consideration were required to be shewn that the want of such proof would be no lawful reason why the deed hould nsot be read, but it would be a reason why the deed could not operate in law, and so the jury might be told. But, in this case the deed expresses a consideration, Josiah Ramsey and all claiming under him afterwards, are stopped to say there was no consideration, and this being a deed, imports a consideration. Now, the deed bears date more than twenty years before the plaintiff’s supposed right accrued. The law holds the date corresponds with the truth, until the contrary appears; and in this case nothing appears to the contrary. The donor of the plaintiff’s liberty is bound by the date and the consideration contained in the deed, and so is the plaintiff — -she can have no right other than such as Josiah could lawfully pass when he made the deed of emancipation.
Mr. Wilson has cited several cases to show that the recitals of consideration contained in a voluntary deed are no evidence against a stronger. If we admit these cases to be law,they cannot govern this case, because the plaintiff here is privy in estate to Josiah, and holds under him.
The next objection is, that the court refused to allow evidence to shew that the Kentucky memorandum'of the acknowledgment was erased. In this we think the court did right: we cannot see any lawful object to be accomplished by such proof.
The next point is, that the court erred in refusing to have the plaintiff’s deed of emancipation read in evidence. [512]*512It seems to us the defendant rests his whole ease on the point that the plaintiff was his slave. The question was not that the plaintiff was not free in general, but that she was a slave, and belonged to him. This issue made it his duty to prove, in the first place, that the plaintiff was a slave born, and continued so, till his title accrued; and secondly, that he was the rightful owner at the time of bringing the action. In this way he took on himself the proof of slavery, which proof would have rested on the plaintiff if the defendant had pleaded the general issue. The. plaintiff had nothing to prove till the defendant made out his case, then she could, and had, a right, to rebut the defendant’s testimony. — But this deed was not relevant in that point of view. There was no error on this point. Judgment affirmed, the defendant pays his own costs.