Bonner v. Latham, 23 N.C. 271, 1 Ired. 271 (1840)

Dec. 1840 · Supreme Court of North Carolina

23 N.C. 271, 1 Ired. 271

RICHARD H. BONNER vs. ELKANAN W. LATHAM.

A grantor by a deed, dated in 1833, conveyed a certain slave to her son-in-law B. and his wife T. till her grand-daughters M. and S. attained the full age of twenty-one years or married; and if B. died before the expiration of that period, living his wife, then the right to vest in her until the age of twenty-one years or the marriage of M. and S.; if the said T. died before her husband, then the whole property to vest in the said M. and S. to be equally divided between them as tenants in common, and from and after the full age of twenty-one years or the marriage of the said M., then the one half of the said property to be equally divided and delivered to the said M., her heirs, &c. and after ihe full age of twenty-one yeais of marriage of S. the other half of said property to be divided and delivered to her, her heirs, &c.; and if either M. or S. should die without leaving lawful issue, the property to go to the survivor; and if both die without leaving law,ful issue, then to return to the grantor. - Held by ihe Court, that, as the limitations in the deed, by force of the act of Assembly, (Rev. Stat. c. 37, s. 22,) must be construed as an executory devise in a last will wouldbe, the grand-daughter M., on her marriage, became a . tenant in common with the son-rn-law B., though the other granddaughter S. was still under age and unmarried.

This was an action of detinue, brought to recover a negro man named Toby, and tried at the Fall Term, 1840, of Beaufort Superior Court of Law, before his Honor Judge Dick. The facts of the case as agreed on by the parties, were as follows:

One Sarah Winburn, on the 15th of October, 1833, conveyed the negro Toby, among other slaves, to one Nathan Brown and his wife Temperance, and to Mary F. Wilkins and Sarah J, Wilkins, for the purposes set forth in the said deed, a copy of which is hereto attached and made apart of this case. It was admitted that Nathan Brown sold and conveyed the said negro Toby to the plaintiff in this action. It was further admitted that the defendant intermarried with Mary F. Wilkins, before she arrived at twenty-one years of age; that, after the defendant’s marriage as aforesaid, he got the negro Toby into his possession, and had him in his possession at the time this action was brought. It was further that Sarah J. Wilkins was under twenty-one years" of age and unmarried at the time this action was brought, an(j that spe has since married; and that Nathan Brown and his wife, and Mary F. Latham and Sarah Jane are all now living. The plaintiff in this suit claimed the absolute property in the negro Toby under his purchase from Brown, as before stated.

The deed referred to from Sarah Winburn, is in these words:

“ Know all men by these presents, that I, Sarah Winburn, of the county of Martin and State of North Carolina, for the natural love and affection which I have and do bear for and towards my daughter Temperance Brown and my two grand daughters (namely) Mary Frances Wilkins and Sarah Jane Wilkins, and for their better maintenance and preferment in life, and also for and in consideration’of the sum of ten shillings to me in hand paid before the execution of these presents by said Mary Frances Wilkins and Sarah Jane Wilkins, the receipt whereof I do hereby acknowledge, have given, granted, bargained and sold, aliened and confirmed, and by these presents do give, grant, bargain, sell, alien and confirm unto Nathan Brown and his wife Temperance, untill the full age of twenty-one years or the marriage of said Mary Frances Wilkins and Sarah Jane Wilkins, children of James Wilkins, dec’d, and my grand-children, whichever may first happen; but if the said Nathan Brown shall die before his said wife Temperance and during their being unmarried or under twenty-one years of age, that his right therein shall cease and the same shall be vested in the said Temperance until the full age of twenty-one years or the marriage of said Mary Frances Wilkins and Sarah Jane Wilkins; but if the said Temperance shall die before’ said Nathan, then the whole property and estate shall vest in the said Mary Frances Wilkins and Sarah Jane Wilkins, their heirs and assigns, to be equally divided between them as tenants in common; and from and after the full age of twenty-one years or the marriage of the said Mary Frances Wilkins, then the one half of the said property and estate to be equally divided and delivered unto the said Mary Frances Wilkins, her heirs and assigns forever; and from and after the full age or rnar- ^ riage of said Sarah Jane Wilkins, then the other half of the said estate or property to be divided and delivered unto the said Sarah Jane Wilkins, her heirs and assigns forever; and if either of my said grand-children shall die without leaving lawful issue of her body living at the time of her death, then and in that case the part or share of her so dying shall go to be vested in the surviving granddaughter, her heirs and assigns forever. In case the survivor of them shall die without leaving lawful issue of her body at the time of her death, then the whole of said property given’ her herein and accrued to her by survivorship, shall be vested in and go to me the grantor and' to my heirs and assigns, the following' property, both real and personal, to’wit: a certain tract of parcel of land, lying and being in: the County of Martin and' State of North Carolina, described in a deed,<fcc. [Here the land is described.]' Also the following negro slaves, to wit: [naming the slaves] to have and to hold the said land and' slaves, with all the improvements and appurtenances to the said land belonging in manner before mentioned. And it is understood and agreed between the said grantor Sarah and' the said Nathan Brown, that the said Nathan, during his* term in said property, is bound to school and clothe the said" Mary Frances Wilkins and Sarah Jane Wilkins, at his own expense to the value of the profits of said property, but subject to no account for the profits or use and occupation of the same during said time unto any one whatever, nor for his failure to so school and clothe them; but he shall be liable to account for the profits, use and occupation of the property after the'respective' age of twenty-one years or the marriage of said two grand-daughters or children of said grantor. In witness whereof, the said grantor hath hereunto set her hand and seal, this the 15th day of October, A. D. 1833.

Sarah Winbtjrn, [Sea!.]!

Witness,

Matthew Shaw.”

The jury rendered a verdict for the plaintiff, and found the value of the negro Toby to be one thousand dollars, and-asSessed damages for the detention up to the time of trial to three hundred and fifty dollars, subject to the opinion of the Court whether the plaintiff could maintain this action. The Qourtj being: of opinion that the plaintiff could not recover, ordered the above verdict to be set aside and a nonsuit entered; from which judgment the plaintiff prayed for and obtained an appeal to the Supreme Court.

No counsel for the plaintiff.

Badger for the defendant.

Daniel, Judge.

If the limitations in a deed of slaves were contained in a last will, and would be good as an executory devise, they shall be good and effectual in the deed as a remainder. Rev. Stat. c. 37, s. 22. The plaintiff had but the interest of Brown in the slave under the deed of Sarah Win burn. To ascertain what that interest was, it may be necessary to divide the deed into five branches. First, the settlor, by the deed, gave the slave to her son-in-law Brown and his wife Temperance, until the full age or marriage of Mary and Sarah Wilkins, which may first happen. Secondly: But if Brown shall die before his wife and “during their being unmarried or under twenty-one years of age,” then the right shall vest in the wife of Brown, until the full age of twenty-one years or the marriage of Mary and Sally Wilkins. Thirdly: But if the wife should die before her husband, then the whole property shall vest in the said Mary and Sarah Wilkins, their heirs and assigns, to be equally divided between them as tenants in common. Fourthly: “And from and after the full age of twenty-one years or the marriage of Mary F. Wilkins, then the one half of the said property and estate to be equally divided and delivered to her and her heirs forever.” As to the other moiety, it is given to Sarah J. Wilkins in the same terms. Fifthly: Brown is made liable to account for the profits of the estate only “ after the .respective age of twenty-one years or the marriage” of the grand-daughters of the settlor.

The plaintiff contends that Brown was entitled to the exclusive interest in the slave until Mary and Sarah loth married, or both should arrive to the age of twenty-one years, or one should marry and the other arrive to the age of twenty-one years. Both of the girls had not married at the date of the writ. Sarah then was single and under age.

One tenant 'of^SeT ue for such Ms c0‘tenant‘

The cases of Campbell/ r65’ and ot m* T-Was* son ^ jQgy 398’, cited apr’l'c>y*

From reading the whole deed, and particularly the fourth and fifth branches of it, the intention of the settlor seems to be apparent, that on the event of either oí hergrand-daughters marrying or arriving at age, one half of the property should immediately vest in such grand-daughter. The tate was not intended to remain in Brown and wife until both the girls married. The grantor was making a provision for each of the girls, to take effect at such time as they or either of them might reasonably want it. We are of opinion that, at the date of the writ, the defendant was tenant in common- of the slave with the'plain tiff. One tenant in 'common cannot maintain detinue against his co-tenant to *- cover the possession of the chattel so held in ^ Campbell v. Campbell, 2 Mur. Rep. 65. Lncas v. Wasson, 2 Dev. Rep. 398. The judgment must be affirmed.

Per Curiam. Judgment affirmed.