Hooper v. Hooper, 20 N.C. 150, 3 Dev. & Bat. 150 (1838)

Dec. 1838 · Supreme Court of North Carolina

20 N.C. 150, 3 Dev. & Bat. 150

WILLIAM Y. HOOPER, Adm’r of SUSANNA HOOPER, v. WOODLIEF HOOPER.

Where a deed of gift conveys the immediate, absolute and entire interest in a slave, an endoisement made thereon by the donee at the same time when the deed was executed, stipulating that the slave “may be at the disposal of the ' donor during his life,” will not operate as a reservation of a life estate by the donor, but will be regarded at law, only as an executory covenant on the part of the donee that the donor during his life shall have the enjoyment of the slave, for the breach of which covenant the donee will be answerable in damages ; though in equity, the donor would probably be regarded as taking an interest for life.

This was an action of detinue for certain slaves. Plea — the general issue. Upon the trial at Caswell, on the last circuit before his Honor Judge Pearson, it was in evidence that the mother of the slaves in question had been the property of the plaintiff’s intestate, and the only question in the cause depended upon the construction and legal operation of a deed of gift, executed by the plaintiff’s intestate to the defendant’s testator who was her son; and an endorsement on the said deed of gift executed by the donee therein on the same day, and attested by the same witnesses who attested the deed of gift. The deed of gift conveyed the absolute interest in the mother of the said slaves to the defendant’s testator, and his endorsement was in the following words : “ The within named negroes, Claricy and Milley, I hereby certify may be at the disposal of my mother Susanna Hooper, for and during her naturaHife. Given under my hand and seal the day and date within written.

Dec. 1838.

Henry Hooper.” (Seal.)

Test, Griffin Gdnn.

The plaintiff’s counsel insisted that the proper construction and legal effect of the deed of gift and endorsement was to convey the slaves to the son with a reservation of a life estate to the mother, the donor, and that this reservation of a life estate gave her the entire interest. On the contrary it was contended by the defendant’s counsel, that the deed of gift passed the slaves to the son, and the writing on the back of it did not amount to a reconveyance of a life estate, by which the operation of the deed would be entirely defeated; but was merely a covenant, or declaration of an use, or p'ower of disposition, without passing, any legal interest or estate. His Honor, in charging the jury, sustained the view taken by the defendant’s counsel, and a verdict being rendered in favor of the defendant, the plaintiff appealed.

J. T. Morehead, for the plaintiff.

W. A. Graham, for the defendant.

Gaston, Judge.

We entirely approve of the opinion given by his Honor upon the legal construction of the deed from Susanna, to Henry Hooper. Admit, as the plaintiff’s counsel insists, that the endorsement, being cotempbraneoús with the deed, should be regarded as a part thereof, it by no , means follows that the meaning of what is declared by the endorsement, would be thereby changed. This endorsement speaks the language of the donee, and is a declaration or stipulation on his part in relation to the precedent subject matter. The legal limitation of the gift is the language of the donor, who had the sole right to prescribe the extent and modifications of her donation. This limitation is immediate and absolute — and therefore passes directly the entire property from the donor to the donee. The subsequent declaration or stipulation on the part of the donee is an engagement that during the life of the donor she shall have the disposal— that is, the enjoyment of the thing which has been transferred to him. At law, it can be regarded but as an executory covenant, for the breach whereof he would be answerable in damages. In equity, the donor would probably be regarded as taking an interest for life — but however this might be it could not affect the legal operation of the instrument. The judgment below is affirmed.

Per Curiam. Judgment affirmed.