Peter Vivian Daniel

“ But the complainants have a right, from the proof in the record, to take refuge in the equity of their rights.
According to the evidence of W. R. Hamilton, Goree, the testator of defendants, who seems to have been a shopkeeper, purchased the slave in question, with express notice of complainants's title, by the marriage settlement of their mother with Yancey. The testimony of Hamilton was duly taken; for, if defectively taken in the first instance, the defendants had an opportunity, and were required, to retake it, if they chose, by an express agreement of the parties. ”

“ In 1834, complainants' right was complete, if they had any. The youngest must have been of full age in, or before, the year 1837. They are all children of the widow DeLane, before her marriage with Yancey, in 1816. A suit in Equity against these defendants was pending in 1843, for this very property, and dismissed for want of prosecution. It was as if it had never existed. In 1847, when this suit began, more than twice the period of limitation had elapsed since the right, if any, accrued.
Courts of Equity will not encourage such demands. ”

“ The marriage contract authorizes a sale by the husband, with the consent of the wife. They are residing together, apparently in not a very prosperous condition, and both purchase, for their own support and the support of their family, (of these very complainants,) the goods of the defendants' testator. They are unable to pay for them, and one or both of them sell the slave to him for these very things. ”

“ If one intrudes upon the rights of an infant, and takes the profits, he will be treated as guardian. His character is fiduciary; the statute of limitations is inapplicable; and lapse of time will not bar account. Goodhue v. Barnwell, Rice, Equity, 239.
The ruling of the Judge below was evidently in reference to a single question, in which he clearly was in error. But, independently of his decision, it may become the plaintiffs to satisfy this court this, if he had all these questions before him, the defendants, in any point of view, would have been entitled to a decree in their favor. ”

“ That Yancey died in 1836, in Mississippi, utterly insolvent, and no person ever administered on his estate. In disregard of these affidavits, the District Court refused to consider the copy of the antenuptial contract as legal or admissible in the absence of the original, and in this refusal, we think that court has erred. Upon the most obvious principles of reason and justice, we think, that the complainants could not have laid a stronger foundation for the introduction of the secondary proof. ”

“ The appellants, it is not pretended, ever held or claimed the subject in dispute, except in their representative capacity, and in trust for the creditors and legatees of their testator. In the interval between the abandonment of their first and the institution of their second demand by the complainants, those executors have, in fulfilment of their trust, handed over the subject to those for whom they held it under the will; have accounted with the authorities to whom they were responsible, and have received from those authorities a full acquittance. ”

“ They state where they have searched; but Yancey removed from South Carolina to Alabama, carrying the personal property with him. His right, according to the theory of complainants, depended upon this agreement. He would have carried it with him. It would have been among his papers. There was no search there. See the cases cited on appellant's brief.
3. The copy from the records in South Carolina, cannot rest on the principle of an ancient deed. The possession and acts of Yancey, as represented by complainants, were inconsistent with any limitation on his title, and therefore with this deed. ”

“ If the evidence rejected by the Judge, as to the reading of the marriage settlement, should have been received, as we think it should, then it may become necessary to bring in review the questions made by the defendants' answer. ”

“ Questions which do not involve the matter in controversy, but matters auxiliary to the trial, which facilitate the preparation for it, often depend on the oath of the party. An affidavit of the materiality of a witness, for the purpose of obtaining a continuance, or a commission to take a deposition, or an affidavit of his inability to attned, is usually made by the party, and received without objection. ”

“ According to the tenor of the decisions of this court, it was not necessary that there should be such a recording to protect the rights of the complainants against the claims of a subsequent purchasers.
'A marriage settlement or deed, in favor of the wife, duly executed and recorded in Virginia, will be good against the creditors in the District of Columbia, although they may have had no express notice. Bank v. Lee, 13 Peters, 119, 120. Such has been the current of decisions in South Carolina and Alabama? ”

“ The disabilities are coverture, infancy, non compos, and absence of defendant beyond seas.
In this case, the slave was sold in 1821; the coverture terminated in 1823; the husband survived to 1834, with the right of possession and enjoyment only. ”

“ The respondents deny that any slave mentioned in that agreement, except the woman Lindy, ever came to the possession of their testator, and after naming the offspring of Lindy, they aver that this female slave and her offspring were never held by the respondents in any other right than as the executors of James L. Goree, deceased ”

“ As this fact is generally knwon only to the party himself, there would seem to be a necessity for receiving his affidavit in support of it.'
The law, as thus clearly declared by this court in Tayloe v. Riggs, is in strictest accordance with the rule prevailing in the Supreme Court of the State within which the case before us was decided. Thus, in the case of Sturdevant v. Gaines, (reported in the 5th vol. Alabama Reports, p. 435,) that court thus announces the rule by which they are governed with respect to the introduction of secondary evidence. 'In the recent case of Jones v. ”

“ Stip, 1 Wash. 319; Currie v. Donald, 2 Wash. 58; Eppes v. Randolph, 2 Call, 125; Guerrant v. Anderson, 4 Ran. 208; Roanes v. Archer, 4 Leigh, 550; Woods v. Owings & Smith, 1 Cranch, 239; Lessee of Sicard v. Davis, 6 Peters, 124.
The antenuptial agreement between Ann Wood De Lane and John Yancey, is proved to have been executed on the 20th day of May, 1816; if it was admitted to record at any time before the 20th of August, in the same year, it operated as notice to all creditors and purchasers becoming such subsequently to the execution of that agreement ”