S. Pope, et al. vs. J. & T. Eakin & Co., 3 Hum. 413

Turley, J. delivered the opinion of the eourt. This bill is filed by Selma, Mary and Sarah Pope, by their next friend, W. Pope, to enjoin the defendants from selling a negro man, Ben, claimed by them, and to be quieted in their right to him, under the following facts: — W. Pope was the owner of the slave in question several years previous to the 1st January, 1840; he permitted the slave in question to go into the possession of his son W. W. Pope, where he remained generally up to the 1st January, 1840, though occasionally he would be in the use and employment of W. Pope.

There is no proof that it was a gift from the father to his son; on the contrary there is proof tending to show that it was not. In December, 1839, W. W. Pope became much embarrassed in his pecuniary affairs, and made a deed of trust of his property to secure his creditors. Ben was not included in this deed. About the time this deed was executed, Ben left W. W. Pope and went to W. Pope’s, who then claimed him. On the 1st January, 1840, W. W. Pope conveyed said negro Ben to his father by bill of sale for the alledged consideration of $550.

Soon after the execution of this bill of sale, said negro returned to the possession of W. W. Pope, and has remained there generally ever since. On the 17th of June, 1841, W. Pope conveyed, by deed of gift, said negro to complainants, his grand children and children of the said W. W. Pope, forever — but the same to remain in the possession of the said W. W. Pope during his life, not subject to his creditors or the payment of his debts in any way whatever. Defendants were bona jirle creditors of W. W.

Pope as early as December 1839, and obtained judgment against him on the 12th day of February, 1841, for the sum of $289 92, which judgment is sought to be satisfied by the sale of Ben, but is enjoined. The chancellor dissolved the injunction and dismissed the bill, and we think correctly; not, to be sure, upon the ground, that we think it is shown satisfactorily by the proof in the case, that the transactions between W. Pope and his son W. W. Pope, in relation to the negro, were fraudulent, or that the boy ever belonged to W. W.

Pope, andas such, subjectto defendants’ execution against him; but upon the ground, that the que stion is involved in doubt and difficulty, and this being a detinue bill, will not be retained by this court unless the legal right of the complainants were clearly established and incontrovertible, which is not the case. The question involving the legal right to this negro, is one that ought to be tried by a jury; a court of law is competent to relief, and there is nothing in the case to move the conscience of a chancellor. The bill will therefore be dismissed, but without prejudice-