Knibb's v. Dixon's

iu a suit in Chancery, where fraud is not put in issue by the pleadings, it cannot he introduced by the depositions. On a question whether an absolute bi!i of sale was intended only as a security* the evidence being contradictory, a Court of Chancery ought to direct an, issue to try that point.

This was an appeal from the chancery court of Williamsburg, where Knibb Hied his bill of complaint against Tyler, executor of Dixon. The case stated in the bill was this: Knibb being reduced in his circumstances, and much pressed by his creditors, and most of his personal property taken under execution, executed a bill of sale purporting to be an absolute deed to Dixon, for a negro woman and her daughter. The said bill of sale, though absolute on its face, was intended by the parties to be a trust; the said Dixon engaging, that if any more debts should come against the complainant, he would discharge them, and rely on the property so conveyed, for his indemnification. Dixon took the negro woman home, but left her daughter in the possession of the complainant. The deed was acknowledged and recorded in Charles City county. After the complainant had liberated himself from his difficulties, Dixon frequently pressed him to take back his woman and her increase. But they were suffered to remain with the said Dixon, with his permission, until his death. The said Dixon never paid any consideration for the said slaves, nor paid any debt for the complainant. The executor of Dixon refuses to deliver the said property to the complainant, and has even brought a suit at law for the girl who had been left in the possession of the complainant. He therefore prays that the said executor may be compelled to deliver up the said slaves to the complainant: that he may account for the value of *■ . * their services from the death of the said Dixon; and annul, cancel and destroy the said bill of sale. The executor of Dixon relies upon the bill of ^sale, as evidence of an absolute transfer of property to his testator, and denies all knowledge of any secret trust between the parties: that it is not lawful for the complainant to avail himself of any fraudulent act to deceive his creditors : that Dixon almost supported the complainant’s family, and the respondent has paid many accounts for the said Knibb, since the death of Dixon, out of his estate ; that he believes that five times the value of the said slaves, has been advanced at various times, by the said Dixon to the said Knibb, to relieve him from distress and misery : that he has always understood that Dixon left the slaves in possession of Knibb, for the use of his wife, on loan ; that Knibb falling out with her, as the respondent is informed, sent the slaves home to Dixon, saying he would hot raise young negroes for Dixon ; but again got possession of the girl Ghloe, &c. Depositions were taken onboth sides to prove the trust; the advances made by Dixon for Knibb, and the value of the negroes. Knibb having died, the suit was revived in the name of his executor. The chancellor dismissed the bill upon a hearing, and Knibb’s executor obtained a supersedeas.