Airey v. Holmes, 50 N.C. 142, 5 Jones 142 (1857)

Dec. 1857 · Supreme Court of North Carolina

50 N.C. 142, 5 Jones 142

NANCY AIREY v. R. J. HOLMES.

A deed of gift of slaves, taken into open court by the donor, and there acknowledged, for the purpose of registration, and, accordingly, registered, was Held to be delivered, and a written declaration on the same, afterwards, that it had not been delivered, and was not to have effect, did not invalidate it.

The holding of the property by the father, in the above case, was adverse to the rights of the donee, and prevented the ownership from vesting in her husband during her coverture, and after his death, the right of action survived to her.

ActioN of detinue, tried before Dice, J., at the Spring Term, 1857, of Rowan Superior Court.

CASE AGREED.

Jesse Holmes, on the 13th of May, 1820, drew up, signed, and had delivered, a deed of gift to his daughter, Nancy Holmes, then an infant nine years old, in the words and figures following, to wit: “ Know all men to whom these presents shall come, greeting, that I, Jesse Holmes, of the county of Rowan, and State of North Carolina, for, and in consideration of, the natural love and affection which I have and do bear unto my beloved daughter, Nancy Holmes, and for divers other good causes me thereunto moving,, have given and granted, and by these presents do give and grant, unto the said Nancy Hclvsc and the heirs of her body, a certain negro woman and child — negro woman named Susana, aged eighteen, and child named Jack, aged two mouths, and the increase of the said negro woman Susana, unto my said beloved daughter Nancy Holmes and the heirs of her body; and should the-said Nancy Holmes die, and leave no issue or heirs of her body, then all my children will be entitled to the gift after my death; and should I die before my said daughter Nancy Holmes, arrive at the age of twenty-one, then Moses Holmes to have possession of the said negroes until my daughter Nancy Holmes arrives to the age of twenty-one years, without paying any thing but her tax; my said daughter Nancy Holmes to have, hold, and occupy and possess the said negroes and their increase, to the only proper use of the said Nancy Holmes and the heirs of her body, as above, for ever, and I, the said Jesse Holmes, all and singular the said ne-groes and their increase to my said daughter Nancy Holmes and the heirs of her body, as above, against all persons whatsoever, shall and will warrant and forever defend by these presents. In witness whereof, I have hereunto set my hand and seal, this the twentieth day of May, eighteen hundred and twenty.” Ach’d. Jesse Holmes, [seal.]

Witness,

J. H. EeeeliNG,

Lucy RúeeliNG.

Nancy Holmes, the donee, then''resided with her grandmother, Nancy Owens, about a mile and a half from the residence of her father, and continued so to reside until her marriage with John Airey in 1828. She was not twenty-one years old at the time of her marriage, and her state of cov-erture continued up to April, 1854, when her husband, the said John Airey, died intestate, in the county of Rowan, leaving the said Nancy Mm surviving.

At May Term, 1820, of Rowan County Court, Jesse Holmes went into open court arid acknowlod., -1 tím deed of gift, and caused the same to be registered.

Jesse Holmes kept possession of me slaves, conveyed in the deed of gift, unffl his death in ‘c v.’, claiming them-as his own, listing them in his own in. .r -snd paying taxes for them. ,l;e also kept possession of •’■■■ r'va of gift till his death, and there is no evidence of ■ n,. 'mivery of it to the donee oilier than as above set forth. i A 17th of April, 1845,on the occasion of making d v. ill, he caused tobe written on the deed of gift as follows • '• i.iis deed never was delivered to any person and aint to ■; „ve ..-rieet,” which writing he signed, and had attested : / i.,vo witnesses. After tliis, he held and claimed these shiv.-', as ids own, and made parol dispositions of some of them ; .is other daughters, on their marriage:*, ’'¡freon or twenty ye..'.-» ago.

It is agreed that Frank, the ski'o: -,o.l for, is one of the increase of the v,lave Susana, convey : .1 m he above-mentioned deed of gift, and is of the value J hf it!0, and that the slave was demanded before the brry.-.g of the suit It is also agree:] that the suit was hrong-h:- * i mu three years after the deadi of ,;olm Airey, the pLal.-.n 's late husband.

It is agreed between the parties, ' ’ m if the Court should be opinion with the plaintiff, upon h s foregoing case, judgment should be rendered for the said slave, Frank, valued at 01200, and if of a contrary opinion, judgment should be entered for the defendant.

Upon consideration of the case, bis Honor gave judgment for the plaintiff, from which the defendant appealed.

Kitircll, Fleming and Kerr, for plaintiff.

Boyden and 'Miller, for defendant.

Pearson, J.

The donor went into open Court and acknowledged the execution of the deed of gift, and caused it to be registered ; this amounts to a delivery, Ellington v. Currie, 5 Ire. Eq. 21.

The legal effect of the deed was to vest in the plaintiff the ownership of the slaves, with a limitation over, in the event of her death without leaving issue, to the donor for life, and then to his other children, and with a further limitation, that in case he died before his daughter ariived at the age of twenty-one, Moses Ilolmes should have possession of the slaves until that time, without paying any thing but the taxes. Whether the limitations were valid is not the question ; it is certain that the plaintiff acquired the ownership in presentí, by the force and effect of the deed. Under the maxim “ ut res magis valeat quwm pereat,” the Court would hesitate before putting such a construction upon a deed as would defeat its purposes and render it inoperative, unless constrained by express terms. But in this case, there is nothing to create a doubt as to the proper construction.

The attempt of the donor, in 1845, to revoke the gift, and his declaration, written upon it, that it never was delivered, is of no effect.

The donor was, for many years, in the adverse possession, but the plaintiff was under the disability of infancy, and after-wards marrying while under age, the disability of coverture was created, which continued until within less than three years before the commencement of the action. The effect of an accumulation of disabilities is well settled.

The adverse possession of the donor prevented the ownership of the slaves from vesting in the husband of the plaintiff jure mariti, and upon his death the right of action survived to.her.

Pur Curiam, Judgment affirmed.