Handy, J.,
delivered the opinion of the court.
This was a bill in equity, filed by the plaintiffs in error, to recover of the defendants certain slaves in their possession, alleged to be the separate property of the female complainant.
The bill states, in substance, that the complainants were husband and wife on the 6th April, 1818, residing in Franklin county, Tennessee ; and on that day, that William Caperton, the father of the wife, conveyed by deed to Thomas S. Caperton, her brother, as trustee, and to her separate use, a slave named Hicksey ; which deed was, at February term, 1820, of the County Court of that county, in which the property was located and the parties resided, duly acknowledged ; and they believe that the deed was duly registered in that county, but that the records of the office in which it was recorded have been either destroyed by fire, or mutilated, and are unavailable to the complainants; that the deed was, at its date, delivered to the trustee, and the slave then put into the possession of Mrs. Woods, and so continued until some time between the years 1830 and 1835, during which time the slave had issue, a child [87]*87Mary, both of which were sold during that period, by the sheriff of Franklin county, under executions against the husband alone, and as his property, to James Britton, who had notice of the claim of the wife under the deed, the same being a matter of notoriety in the neighborhood. That at the time of that sale, the deed had been lost or stolen from the register’s office, and could not be found after diligent search; and that, the wife being then under disability of coverture, the trustee wholly failed to perform his duty and protect her rights, the complainants believing that the sale could not be prevented, nor her rights protected, without the production of the original deed ; but the slaves were sold without her consent. That the deed remained lost until recently, when it was sent to the complainants by one Martin, who had found it in Tennessee. That after said sale of the slaves, they each had issue, Mary having a child Jack, now in the possession of the defendant Pitman, as guardian for his wards, who derived title from one Nelms, and a child Nancy, nowin the possession of the defendants Dismukes, who derived title also from Nelms ; and that Amanda, the child of Hicksey, during the year 18 — , came to the possession of Wallace Wilson, under a purchase from Andrew Woods, without the consent of the wife, Wilson being fully apprised of the conveyance to the use of the wife, and that Amanda has several children; all of which slaves are in the possession of the defendant Sturdevant and wife, as distributees of one Purnell, who acquired possession from one Ross, who claimed title from Wallace Wilson; and that the wife has not in any manner disposed of the said slaves. The prayer is for a restoration of the slaves to the wife’s possession, and for hire.
The answers deny that William Caperton, the father of Mrs. Woods, was the owner of the slave Hicksey on the 6th April, 1818, and state that the complainants were married in Tennessee, in March, 1817, and resided a short time thereafter with the wife’s father, and then, in the same year, left his house, and went to housekeeping, at which time William Caperton made a parol gift of the slave Hicksey to Andrew Woods or his wife, delivering possession to them, whereby the husband became the lawful owner. They d'eny the delivery of the deed to Mrs. Woods, or to the trustee, or to any person for either of them, and the acceptance of the deed by her, or any one for her; and deny the allegation of the bill, that [88]*88the records of the register’s office of Franklin county, Tennessee, have been lost, or mutilated, or destroyed by fire, or otherwise; and one of the defendants states that he has examined said records since the institution of this suit, and that said records are in a good state of preservation, which statement is adopted by the other defendants as part of their answers. They deny that the deed was stolen from the register’s office in Tennessee, or that it was ever out of the possession of William Caperton, and state that it was found by Martin, who sent it to the complainants, among some old papers left by Ca-perton at the place where he formerly resided in Tennessee. They admit the sale of the slaves in Tennessee, for the debts of Andrew Woods, and allege that he acquired possession of them in 1817, claimed and exercised ownership of them as his own property, and sold some of them as such.
The defendants, Sturdevant and wife, admit that they have in possession the slave Amanda, and certain of her children, and hold them as distributees of one Purnell, and admit that she was sold by Andrew Woods to his brother-in-law, Wallace Wilson, who sold her for a valuable consideration, to one Ross, in the year 1848 or 1849, who purchased without any notice of the claim of Mrs. Woods, and who sold her in 1849 to Purnell for a valuable consideration, and who purchased in good faith, and without notice of the claim of the present complainants ; and they rely upon the titles of said several purchasers as having been made bona fide and without notice, and exhibit the bill of sale of Ross to Purnell. They state that Ross’s title was acquired in consequence of a suit instituted by him against Andrew Woods, to enforce a mortgage on said slaves, executed by Andrew Woods, in the course of which suit William Ca-perton signed a bond for the forthcoming of the slave Amanda to answer the suit, but that neither Andrew Woods nor William Ca-perton, during that litigation suggested anything about the separate claim of Mrs. Woods here set up. They rely upon their adverse possession of the slaves since the year 1848, or 1849, and the Statute of Limitations. They also set up, by way of demurrer, as a defence, the Statute of Limitations, the insufficiency of the title to the slave Amanda and her increase, either legal or equitable, as stated in the bill, &c.
The defendants, Pitman and Dismukes, admit their possession of [89]*89the slaves, as stated in the bill, and that the slaves Hicksey and Mary were sold in Tennessee, as stated in the bill, but at what time they are unable to state. But they allege that the slaves continued, after that sale, in the adverse possession of the purchasers, in the State of Tennessee, for such a length of time that, by the laws of that State, title to the same was vested in the purchasers there, and they rely upon the title so acquired; that the slave Mary was owned by ono or two persons in that State before she was sold to one Garner, by whom she was sold to one Wadlington, who sold her to one Thompson, by whom she was sold to Martin Nelms, under whom these defendants claim title; and that all these persons, and especially Nelms, were purchasers for value, without notice of the claim here set up; that the complainants have been for about eighteen years residing in the neighborhood where Nelms has had these slaves in possession, claiming them as his property, and have set up no claim to them until recently. These defendants set up the same matters of defence, as stated in the answer of Sturdevant and wife.
Upon the final hearing upon the pleadings and proofs, the bill was dismissed.
The merits of the case depend mainly upon^two questions: 1st. Whether the right and title to the slave Hicksey, upon the evidence shown by the record, were in William Caperton at the date of the deed under which the complainants claim ? And 2d. Whether that deed was executed and delivered by William Caperton, and accepted by the trustee or by Mrs. Woods, and considered and intended by the parties as a complete conveyance ? These questions have an intimate connection with each other, so that the evidence applicable to one, has a direct bearing upon the other; and they will, therefore, be considered together upon the facts and circumstances shown in evidence.
It is shown by the evidence, that the slave was put into the possession of Woods and wife, shortly after their marriage, by William Caperton, her father, upon their commencing housekeeping; and it is admitted that this creates the#presumption that the delivery was intended as a gift and advancement to the -daughter, which, unless rebutted by sufficient proof, would vest the title in the husband under the law then existing in Tennessee, where the transac[90]*90tion took place. But it is insisted that this presumption is destroyed, and that the evidence establishes that it was intended as a mere loan, which was terminated by the father in a short time resuming possession of the slave, and executing the deed of gift set up in the bill. On the contrary, the defendants in their answers deny the execution and delivery of this deed, and insist that it never had legal validity, and that the slave was never restored to the possession of William Caperton, but continued in the possession of Woods and wife under the original delivery, which was a gift, until sold as his property.
The claim of the complainants rests almost entirely upon the testimony of Thomas S. Caperton, the trustee named in the deed of gift of 6th April, 1818, the brother of Mrs. Woods. He testifies that he saw the deed executed at the time it bears date, and was then living in Winchester, Tennessee, and that it was delivered to, and accepted by, him as trustee, and was afterwards, in the year 1820, acknowledged by his father in his presence in the County Court, at the date stated in the acknowledgment indorsed upon it, and was then delivered by witness to the deputy clerk for registration, and that was the last time that witness saw it; that at the time of the execution of the deed, the slaves mentioned in it were in his father’s possession, but had been in the possession of Woods and wife prior to that time, his father having loaned them, but he made no gift of them until he made the deed; that the slave Hick-sey was in his father’s possession, and present when the deed was made, and called up by him, and delivered over as the property of Mrs. Woods, under the deed. He state's that he did not make any effort to prevent the sale of the slaves by the sheriff, because he was unable to find the deed after diligent search for it; that his impression is that the complainants were married in the early part of the year 1818, and that Woods was then embarrassed in his pecuniary condition, and was regarded by the family as insolvent.
On cross-examination he states, that he made an effort to prevent the sale of the slaves, when about to be made by the sheriff, in Tennessee, but failed, because the deed of gift could not be found; that he consulted'two lawyers on the subject, who told him he could recover the slaves provided the deed could be found; that he did not search for the deed, and never applied to William Caperton for [91]*91it, as lie did not suppose he had it, but he frequently ashed witness whether he had found it; that he knew at the time the substance of the deed, but does not know why this was not regarded as sufficient to protect Mrs. Wood’s title; those whom he consulted insisted that the deed must be produced; that he does not know why it was not acknowledged until 1820.
Campbell Martin testifies, that he found the deed, about twenty years ago, in a house formerly occupied by William Caperton, in Tennessee, in an old barrel, among a mass of other old papers owned by Caperton, and it remained in his possession until he sent it to complainants, about twelve months before the date of his deposition.
The deed has upon it no mark or entry showing that it had been recorded in Tennessee, or had been filed in any office for that •purpose.
John Caperton testifies that, according to his best recollection, the complainants were married in the year 1817, and that Woods was then about eighteen years of age; that they were married in the spring, and lived with William Caperton’s family until the fall of that year, when they went to housekeeping, and the slaves were put in their possession, and went home with them; that witness resided with his father, William Caperton, in 1817, and continued so until 1821, but knows nothing of the execution of the deed; that the slaves remained in the possession of Woods as long as witness lived in Tennessee; that he never saw the deed until it was shown to him upon his examination as a witness, to the best of his recollection; does not know, and never heard his father say, whether, when the slaves were first delivered to Woods, it was a loan or a gift, and does not know that they were redelivered to his father before 6th April, 1818; that he is of the opinion that his father gave the slaves to Woods’s wife when they went to housekeeping in the fall of 1817, because she claimed them, and he never heard his father, with whom he was then living, set up any claim to them afterwards that he recollects.
Elizabeth Woods testifies, that she lived within half a mile of complainants when they were married, and always understood that William Caperton gave the slaves to Woods and wife soon after their marriage, and such was the understanding in the neighborhood; [92]*92that the slaves went into their possession then, and so continued •until they were sold, and it was not known in the neighborhood • that they were the separate property of Mrs. Woods, and she never heard that William Caperton had loaned the slaves to complainants when first put in their possession, but believes that it was notorious in the neighborhood, that complainants exercised control over them from that time, until they were sold at sheriff’s sale.
Matilda Patrick testifies, that she resided, in the neighborhood of complainants and William Caperton, and believes that complainants were married in the early part of the year 1817, and very soon after the marriage, Woods had the slaves in possession and claimed them as his property, and continued in possession of them from that time until they were sold by the sheriff; that it was notorious in the neighborhood that he claimed and exercised ownership of them; that witness’s husband purchased one of them from Woods, which he would not have done, if the claim of separate property in Mrs. Woods had been known in the neighborhood; and this sale was before that by the sheriff; that she never heard of the deed of gift to Mrs. Woods.
Charles G. Garner testifies, that he was intimately acquainted with the complainants from the year 1812 or 1813, and believes they were married in the early part of 1817; that the slaves were in their possession from a period soon after their marriage until 6th April, 1818, and until afterwards sold, and the claim and ownership of Woods were notorious in the neighborhood, and it was also notorious that the slaves were given by Caperton to Woods and wife, after they were married and when they removed home to live; he never heard that it was a loan, but always understood that it was a gift, from the time they were married or soon after, when they removed home, and he never heard of it as a gift. by deed before the claim here set up. The slaves were sold at sheriff’s sale as the property of Woods, in Tennessee, some time between the years 1827 and 1830, and purchased by James Britton, who sold the girl Mary, in July, 1836, to witness, who sold her to Wadlington, in November or December, 1836, when she was taken to this State; witness bought Mary near where Woods and wife lived in Tennessee. Pie further states, that he believes the pecuniary condition of Woods when he was married was good, and he was said to have a plenty [93]*93of property, and to be a young man of fine prospects, and Mrs. Woods’s parents were well pleased with the marriage.
Rebecca Custer testifies, that James Britton had Ilicksey and Mary in his possession, in Tennessee, in the year 1830, and during that year, and for more than a year. '
From this review of the evidence, it is clear that the slave Hick-sey was delivered by William Caperton to the complainants, shortly after their marriage; and this, in presumption • of law, made it a parol gift, and vested the title in the husband. The question, then, is whether the proof is sufficient to establish that it was a loan and not a gift. The affirmative of this proposition, it is insisted, is shown by the execution and delivery of the deed of gift by William Caperton, and the circumstances attending the execution of that instrument. The delivery of the deed being denied by the answers of the defendants, it is incumbent on the complainants to establish it- by the evidence; and the first question which we will consider, is whether the evidence sufficiently proves it.
The testimony of Thomas S. Caperton, the trustee in the deed, is clear and direct, that the deed was signed and delivered to him by his father on the day of its date, and accepted by him, and that the slave was then delivered over to Mrs. Woods ; and afterwards, in February, 1820, it was acknowledged by his father, and handed by the witness to the clerk of the proper court for record, since which time he has not seen it, until shown to him on his examination as a witness. He further states that the slaves, which had previously been in the possession of Woods and wife, were in the possession of his father at the date of the deed, and that the previous possession of Woods and wife was as a loan.
If this testimony be entitled to full weight, it would leave no doubt upon the mind, of the facts so positively stated, that the original possession of the complainants was as a loan, and that that was determined by the father taking possession of the slaves, and executing and delivering in due form the deed of gift. But we are of opinion that the facts and circumstances shown in evidence, greatly impair the force of this testimony, and render it unreliable.
The first suspicious circumstance against the statements of this witness, is that the deed was not found where he states he deposited [94]*94it for record, and where either the original or the record of it should have been found.
It bears upon it no mark that it was ever deposited in the regis-' ter’s office for record, and it contains no certificate or memorandum showing that it had been recorded. These things it was the duty of the register to do ; and the absence of any entry on the déed showing that they were done, is a very strong circumstance to show that the deed was never filed for record. In addition to this, there is no record of the deed in the office. The effort in the bill to account for this, by stating that the records of the office have been destroyed by fire or mutilated, is positively denied in the answers made, upon the personal examination and inquiry of one of the defendants ; and there is no proof whatever of that important fact. So that both the absence of any entry of filing, or certificate of registration, on the face of the deed, and of any registration of the deed upon the record, tends very strongly to disprove the fact so positively stated by the witness, that he left the deed with the clerk for record.
But the deed is found some twenty years after its date, among the waste and useless papers of the donor. If it was delivered by him, and especially if it was filed for registration, how did it get back into his possession ? There is no effort to account for this, and no reasonable way to account for it, for aught that appears. Nothing is shown which could explain his possession of it. Ilis possession of it, coupled with the facts of its having upon it no marks of having been filed for registry, and no certificate of registration, and that there was no actual registration of it, are of almost irresistible force to show that it was never delivered for record, and never delivered as an operative deed. But the additional fact that it was found among his waste papers after many years, must remove almost every doubt from the mind, that it was never delivered by him, and was considered by him useless, and never consummated.
Much strength is given to this conclusion, when we take into view the facts which are proved by numerous witnesses, neighbors, members of the family, and intimate friends, that the existence of the deed was unknown in the neighborhood; that Woods always treated the slaves as his property, and made sales of them, both in Tennes[95]*95see, to his neighbors, and in this State, to his family connections, and that all parties, Woods, the trustee, and his father, all submitted to a sale of them by the sheriff in Tennessee, as the property of Woods, without any notice whatever to the community, or to the purchaser at the sale, that Mrs. Woods had any claim upon them under the deed.
Again, the conduct of this witness in relation to the property, is wholly irreconcilable with the due execution and validity of the deed.
He attempts to account for his failure to assert the rights of Mrs. Woods, by the fact that the original deed was lost. He does not pretend that he could not have obtained a copy of it at that time, or that it had not been recorded, or that the record was destroyed, but that it was necessary to have the original. Suppose that this statement is true: it might serve to account for his failure to institute legal proceedings to protect the rights of the cestui que trustbut it would not account for his entire failure to give any notice whatever of the rights in his hands, to the purchaser at sheriff’s sale, or to the community who were dealing with Woods, and treating the property as his. Such would have been the course of any prudent man, having in charge the rights of his sister, though at that time he might not have been prepared to assert the right in a legal form. Common honesty, and ordinary care for the rights intrusted to him, would have led him to make known the claim. But, from his account, he permitted the rights of his sister to suffer the great prejudice of having the property sold as belonging to Woods, without the least notice of her claim: a course alike strange and unaccountable, either upon rules of common prudence or of his legal duty.
But it is altogether incredible that two lawyers, who were worthy to be consulted, should have advised that he could not set apart the rights under the deed, without the production of the original, when, for aught that appears in his testimony, it was recorded in the proper office where the law authorized such deeds to be recorded, or if not, when he states that he knew its contents, and could have proved them either by his own or his father’s testimony.
■ Again : there are other circumstances tending strongly to show, that the deed was never a complete and valid conveyance.
[96]*96John Caperton, the brother of this witness, and who lived with his father, never heard of the deed, and considered the slaves the property of Woods and wife, from the time they first were placed in their possession after their marriage, and he never heard his father claim them afterwards. Several other witnesses, intimate friends and near neighbors, state that they never heard of the deed, and that the slaves were considered by the community as the property of Woods and wife, from the time of the .original delivery of possession to them. During the litigation in this State, upon a mortgage of some of the slaves, executed by Woods, and to which William Caperton was privy, although an effort was made to avoid the force of the mortgage upon them, yet no effort was made to set up the rights of Mrs. Woods to them, which might have been effectual to accomplish the object of the parties to defeat the mortgage; and the slaves were actually sold shortly afterwards to a family connection, Wallace Wilson, who had married the sister of Mrs. Woods. During these transactions, no notice of the complainants! claim under the deed was given, either by them, or their trustee, or by William Caperton.
There are also other suspicious circumstances attending the testimony of Thomas S. Caperton.
He acknowledges his inability to account for how the deed was not acknowledged until nearly two years after its date, although he professes to have a distinct recollection of the circumstances attending its acknowledgment and execution; and this, too, when the alleged purpose of its execution would demand that it should have been completed without this delay. He states that the original posséssion of the slaves by the complainants was a loan, and that his father resumed possession before the deed was executed. John Caperton, who lived with his father, states that the slaves did not come back to his possession after the first delivery, and this is corroborated by other witnesses, who state that Woods retained ■ possession until the slaves were sold. He states at one place that he made diligent search for the deed; at another, that he did not search for it. He states that Andrew Woods was insolvent from trading, when he was married, and holds this up as a reason against his father’s making a gift of the slaves when they were first delivered to him. On the contrary, John Caperton states that Woods [97]*97was only about eighteen years of age when he was married, and could not have been insolvent from his contracts. Grarner states that he had a plenty of property, was a young man of fine prospects, and that the family of Caperton were well pleased with the marriage. Finally, his statements in relation to the original possession of the slaves by complainants being a loan, and William Ca-perton’s resuming possession of them, are naked, general statements of these things as conclusions, without any of the particulars or reasons which a witness would naturally give in testifying upon such points, and which he gives in relation to other matters in his deposition.
Upon consideration of all the testimony, we are satisfied that the weight of evidence is against the delivery and validity of the deed, and that the presumption of a gift by the original delivery to the complainants, is not destroyed. But whether the original possession of the slaves by the complainants was a loan or a gift, it is not necessary to determine in deciding this case. For the complainants’ claim rests upon the deed; ’and if that be invalid, the decree dismissing the bill should be affirmed, though the original delivery to the complainants was not a gift.
Many other incidental questions have been raised and discussed by counsel; and other views taken in support of the decree might be stated as sufficient to sustain it; but as the above view disposes of the case upon the main ground on which it is founded, it is unnecessary to consider other questions.
Let the decree be affirmed.