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The opinion of the court was delivered,

by Thompson, C. J.

It would have been error on part of the *301court below to have answered the plaintiff’s 1st point in any other manner than it did, in view of the facts of the case. When the deed for the property in question was made, J. D. James and his father J. Y., and brother Gr. C. James, were still in Judge Arnett’s debt. But as he had made a lucky sale of a portion of the property he had bought in on his executions against them, he proposed to J. D. James, that if he would pay him some $786, an amount necessary to make him whole on the debt due him on his judgments, deducting the advance he had realized on his sale of a portion of the property, he would make a present of what remained to his mother and his wife. James eventually paid the sum in extinguishment of the debt due Arnett, and then the latter made the deed in execution of the proposed gift. Not a cent of the money paid was in consideration of the house and lots. It all went to pay his own debt, and that of his father and brother, due by judgment, and left Arnett free to make the proffered gift or not. No law bound him to do it. It was a simple gratuity to an old neighbor. All this appears in the testimony, and was not contradicted. As none of the money paid entered into the consideration for the house and lot, Mrs. James was therefore not a trustee under the conveyance to her of the property for any one; they were as much hers as if she had bought them with her own money. There is no law forbidding a creditor after buying the property of his debtor at an open public and bond fide sale, and giving him the benefit of it, from presenting it or a portion of it to a member of his family, or any other person he pleases. That was this transaction here, and creditors lost nothing by it. It would' have remained Arnett’s if he had not conveyed it to Mrs. James and her daughter-in-law. This assignment of error is therefore not sustained, and this is the principal matter of the whole controversy.

We see nothing like error in the answers of the court to the other seven points of the plaintiff below, assigned for error, so far at least, as Mrs. Polly S. James’s title is concerned. We will not say anything about the title of Mrs. Mary II. J ames. It is not before us now. We also entirely approve of the answer of the learned judge to the 1st and only point of the defendants. It was undoubtedly the law under the facts in proof. Judge Arnett could lawfully make a present of the property to Mrs. James, if he chose, as he did, when he made the deed to her. She took the same title he held, and Mr. Winch acquired no more right by a sale of it on execution, than if he had seized and sold it after it passed by the sheriff’s sale to Arnett. It is incontrovertibly true, that not a cent of money was paid to Arnett for the conveyance to her. He was under no obligation, as already said, legal or equitable, to make the conveyance, as he had proposed to do.

We are also of opinion, that the deposition of Judge Arnett *302taken in the case in equity between Mrs. James and her husband of the one part and the plaintiff below, was properly received in this case. The form of the proceeding did not change the principle : Haupt et al. v. Henninger, 1 Wright 138. The special exception to the deposition was to an entirely immaterial matter, and need not be further noticed.

Judgment affirmed.

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