-The allegations in. the hill, as to the deed of gift of the female slave, are sufficiently made out by proof, and there seems to be little doubt of the deed of gift having been placed in the hands of Miller for the purpose of being registered. But the objection made to setting up the deed is, that, after the defendant had it in his possession, his daughter agreed to waive all claim under it, and trusted to her father making a provision for her by his will. Her declarations to this effect were frequent a very few days before her marriage, and in point of fact it is established. This seems to be one of the cases where a written agreement may be so far waived by parol, that it may be a defence to a bill for a specific execution; for it was here an entire abandonment and dissolution of all claim by virtue of the deed, and restoring the parties to the situation they were in before it was made. But it may be well questioned, whether, if this were not a solid ground of defence, this Court would feel justified in setting up the agreement so as to give it a different operation from what the parties intended. That was, that if the daughter died without children, the slave should return to the family. The husband made no settlement, and was apprised of the circumstances of Ms wife *222before marriage; his equity is at best doubtful. The bill must be dismissed.
This is a bill brought by the surviving husband, who has taken out letters of administration on the estate of his deceased wife, for negro Judith and her increase, which he alleges belonged to her. If she had any title to the property in question, she derived it from the deed which it is admitted by both parties the defendant her father executed to her, and which it is also admitted was returned to the father for the purpose of being registered. If the matter rested here, although the father may have mislaid or destroyed the deed, the rights of the daughter would not be impaired, provided the contents of the deed could be established. But the evidence shows that afterwards, before the marriage of the daughter with the complainant, she released her father from any obligations which he was under to have the deed registered, and restored to him all right which he had to the negro before, it was executed, by authorizing him to destroy it, and saying, if she lived and should have children, she had rather rely on the provision which he should make for her by will. If she herself was living, she could not claim the interposition of this Court, to set up this deed against her own voluntary consent given for its destruction, when she was a free agent, and where it does not appear that any fraud was practised upon her to procure that consent. As the complainant cannot be in a better situation than she would be if living and single, as to the property in question, I concur in the opinion that the bill should be dismissed.
Henderson, Judge, concurring also,
Bit,i, dismissed.