MORRIS v. HARVEY, 4 Ala. 300

GOLDTHWAITE, J. The right of the defendant to demur to the evidence does not appear to have been contested in the Court below; if the plaintiff in this case had refused to join in the demurrer, it may admit of doubt whether a joinder ought to have been compelled, inasmuch as the evidence offered to impeach the deed for fraud is entirely parol, and also loose, indefinite and wholly circumstantial. We mention it at this time for the purpose of indicating that it has never been held by this Court, that every case may be withdrawn from the jury, and the facts referred to the Court by a demurrer to evidence.

The defendant below insists here, that nothing whatever was shown in evidence which can rightfully impair the title of the younger Harvey to the slave in controversy; and the plaintiff contends that the deed is void for fraud in its execution; or if it was not fraudulent that it has no adequate consideration to support it. We have carefully examined the evidence again and again, for any fact or circumstance from which fraud might legally be inferred, but can find none.

It is true the plaintiff is shown to be an illiterate old man, who can neither read nor write; but it is certain that the deed was drawn at his own request, and that it fully conforms to his wishes, as expressed previous to its execution. If the deed was not read to him it cannot be doubted from what the subscribing witness relates, that he was fully acquainted with its contents, and intended it to prevent his other children from getting any of his property, or from scattering it.

Conceding that it is possible the deeds were made with no intention to invest the son with the absolute property either in the land or slaves, but were intended to invest the son with the mere legal title for the purpose of keeping the property together and protecting it during the absence of the father, if a trust was thus created in favor of the elder Harvey, it cannot be enforced at law, nor will the trust operate as a destruction of the deed.

We do not understand the defendant in error as insisting that the trust could be used to defeat the deed, but that it isa strong evidence of fraud that this trust was not de-olared on the face of the instrument itself. In answer to this it need only be said that if the conversation which is shown to have taken place between the parties and the witness who drew the deeds, evinces that a trust, and not an absolute sale, was intended; yet also shows the elder Harvey intended to convey the title of his property to his son, and the deed is effectual for that purpose.

Whether this conveyance was, as between the parties, intended to be governed, limited or otherwise controlled by a trust, is one of the proper functions of a Court of Equity to inquire. We think there is nothing in the case to warrant the inference of fraud in the execution of the deed, and therefore it cannot be impeached, however inconsistent the acts of the grantee may have been to the trust, if any existed. [Swift v. Fitzhugh, 9 Porter, 39; Taylor v. King, 6 Mun. 366; Watt v. Grove, 2 Sch. & Lef. 501; English v.

Lane, 1 Porter, 328.] The other question, as to the inadequacy or want of consideration is more clear, as the current of decision is uniform to show that this is not the subject of inquiry at law. [Powell v. Monson, 3 Mason, 347; Jackson v. Bell, 1 John, cases, 90 ; Oakley v. Mœrman, 21 Wend. 585; McCutchen v. McCutchen, 9 Porter, 650.] Our conclusion is that the judgment on the demurrer to the evidence is erroneous; it is therefore reversed and the cause remanded.