— Voluntary executory agreements receive no aid, either from Courts of Law or of Equity. The parties stand upon their rights, such as they are, and hence it is a maxim, that defective voluntary agreements will not be aided in a Court of Equity; any reformation of a conveyance being an execution of the original agreement, so far as the conveyance is varied. The same motive, which induces a Court to refrain from enforcing an agreement, no part of which is executed, prevents it from enforcing any part of it. The want of a consideration is therefore universally a good defence to a bill for rectifying a voluntary conveyance, or enforcing a voluntary agreement.
Where however the conveyance is complete, and property passes, or rights are vested by it, that property, or those rights, arc guarded and protected, notwithstanding there was no consideration for passing or raising them.
The question presented by this demurrer, therefore, is does this bill seek other rights than those created by the conveyance, or does it only seek for the security and *100protection of those, which the deed lias already given to the Plaintiffs ?
The deed transfers to the Plaintiffs, such of the slaves as had belonged to the husband of the donor, and which should be allotted to her upon a division between her sister and herself. This is a gift of slaves in presentí, who were to be designated by an act in futuro. If upon the division, none of the kind were allotted, nothing passed ; if any such were'allotted, they did pass. The right to call for this division, did not arise from any promise made by the donor, that she would divide; for then, it is admitted that a consideration would be necessary to support it — but it arose as a necessary incident to tiie right ofproperty created by the deed. If any thing passed by the deed, it diminished the property of the donor, and destroyed the power of making such a division as she pleased, which, as owner, she possessed before its execution, and imposed upon her the obligation of regarding the interest of the donees. If this is not the case, and she is at liberty to divide as she pleases, the deed might be made by her perfectly ineffectual, as she could at once have assigned to her sister all the slaves which belonged to her husband, and thus entirely defeat the gift. A difference cannot be perceived between such a division and the one complained of; for it is clearly illusory, and defeats the rights of the donees — if not to the same extent, certainly it does in some degree, which, in principle, is as objectionable as the total frustration of the gift. It has been likened to the case, whore a roan grants all the corn which he may grow, or to use the common phrase, make, in a particular field. Although he cannot be enforced to cultivate that field, yet he shall' not actively interfere for the purpose of defeating bis gift or grant, by wantonly destroying the corn growing there. But this, it is said, would he a wanton act, and one to which self-interest does not prompt, as it docs in *101the present case. True, but it is as equally inadmissible to pursue our own interest, at the expence of the rights of others, as it is wantonly to destroy those rights. The principle is, that I may, by a rightful act, take care of myself, although I may thereby injure another. A11 laws, human or divine, allow this $ but I cannot do this by a wrongful act. Hut this, it is said, is begging the question ; and it is insisted, that the division complained of, is not a wrongful act. That act however, cannot be rightful, which entirely destroys, and renders of no effect, a gift, or transfer, passing property; which, if permitted to operate in the usual and ordinary way, would produce a probable benefit to the donee; and it is obvious, that the probable effect of the deed W'ould be beneficial, as it required a combination to prevent its ordinary result.
As soon as this gift tvas made, if the deed was not a perfect nullity, certain rights were created by it in the donees. It is true, they were contingent, as to the particular subject upon which they would attach; but it would bo strange to allow the right, and at the same time place it out of the protection of the law.
Such is my view of the case. I have considered the deed as if fairly obtained, and that there has been a fraudulent combination to obstruct its fair and usual operation. But 1 must observe, that I have bad, and still have, difficulty upon it. I am disposed to overrule the demurrer, without prejudice and without costs.
— When it is said the deed in question is voluntary — that it was given upon no consideration, it seems difficult to adduce reasons why the Court should proceed in this case, and grant relief. The old beaten ground, long since occupied by the Courts of Equity — . not to aid voluntary conveyances, seems to render any reasons that might be urged to show’ that the bill should be dismissed, both trite and unnecessary.
*102But fraud in making a division of the negroes is alleged. The deed of gift was certainly given upon a contingency. There was something like a blank to a prize; something like an appeal to the doctrine of chances. If the division of the negroes is set aside for fraud, and there is to be another drawing of the lottery, the managers or commissioners must be instructed, in the next division which they make, in order to protect the interest of the Plaintiffs, or fraud will be again alleged. Indeed, to avoid fraud altogether, an equal division of the negroes ought to be made between Mrs. Dawson and her sister. For if we depart from the case, as the parties have made it by the deed, there is no stopping-place between that and allowing the Plaintiff a full share of the negroes in dispute. The parties themselves might have so inserted it in the deed, but we see they have not done so. And by this mode of proceeding, the Plaintiffs will be placed upon much more favorable ground, than they stand on in the deed of gift made to them. They will, in fact, be made to draw a prize, when they have not paid for a ticket.
I cannot hesitate to say, that the bill should be dismissed.
Taylor, Chief-Justice, concurring in opinion with Judge Henderson, it was ordered, that the decree below be reversed, and the Demurrer overruled, without prejudice and without costs.