McAlister v. Holton, 51 N.C. 331, 6 Jones 331 (1859)

June 1859 · Supreme Court of North Carolina

51 N.C. 331, 6 Jones 331

JANETTE McALISTER v. CORNELIA W. HOLTON.

Where A, supposing ho bad only a life-interest in a female slave and her two children, bat in fact owned the entire property in the slaves, made a deed to liis brother B, reciting that he owned such life-interest, and had procured it from B, and added, “ which right and title I relinquish to him,” the said B, “and her two children, Valentino and Caroline also,” it was Held that only a life-estate, in the slaves, passed by such deed.

Action of detinue, for slaves, tried before ITeatii, J., at the last Spring Term of Eichmond Superior Court.

The declaration was for the detention of six slaves, the increase of a woman named Nicey. The following

CASE AGREED,

was submitted for the judgment of the Court:

On the 2nd of November, 1813, John McAlister conveyed to Sarah McAlister, his sister, by deed of gift, as follows :

“ State of North Carolina, Eichmond :

“ Know all men by these presents, that, I, John McAlister, of the aforesaid county, for and in consideration of the love and affection, which I have for my sister, Sarah McAlister, do give nnto her a certain negro girl, slave, named Nicey, during my said sister’s natural life, and in case she has a lawful issue of her body, I give the said negro girl and her increase to her, and her heirs, and in case she, my said sister, dies without a lawful issue as aforesaid, she is to enjoy the said negro during her natural life as aforesaid, and at her death, to return to my own children as their right, to be equally divided betwixt the whole living of my first children, John Alexander and Janette McAlister.”

On the 1st of August, 1829, Sarah McAlister, by deed, bearing that date, conveyed as follows to the said John Mc-Alister, viz:

“I, Sarah McAlister, having a life-time right from my brother, John McAlister, for a certain negro woman, named Ricey, which right and title I relinquish to him, the said John, his heirs and assigus, and her two children, Yalentine and Caroline also; for value received. Given under my hand and seal, &c.”

On the 20th of September, 1844, the slaves, aforesaid, still being in the possession of Sarah McAlister, the said John McAlister, by deed, bearing that date, conveyed to his daughter, Sarah Ann McAlister, as follows :

“ Know all men by these presents, that I, John McAlister of the county of Richmond, and State of Rorth Carolina, from the full and perfect love, which I have for my youngest daughter, Sarah Ann McAlister, and the further consideration of seventy-five cents, to me in hand paid, by her mother, before the ensigning and sealing of these presents, do, by these presents, give unto the said Sarah Ann McAlister, her heirs and assigns for ever, a certain negro girl, named Caroline, between the age of ten and twenty, with her increase, to her, the said Sarah Ann McAlister, and the heirs of her own body, and in case the said Sarah Ann McAlister shall die before site shall have an heir of her own body, then, it is my wish and desire, that my grand-child, Cornelia Wallace McAlister, shall have and possess the aforesaid negro girl, Caroline, and her children, as though she had never been given as aforesaid to my said daughter,” with a limitation over, on the death of the said Cornelia without issue.

On the 17th of January, 1859, Sarah McAlister, the sister of the original donor, John, conveyed her reversionary interest in the slaves in question, who are Caroline, the daughter of Ricey, and her five children, to the plaintiff, Janette, who was her niece; and the only question arising upon this conveyance, (which, is the main question in the case) is, whether there was any reversion in the said Sarah to convey, or whether, by the deed of 1829, she and her increase passed, in full and entire property to John McAlister.

Upon this state of facts, his Honor, Judge Heath, gave judgment for the plaintiff, and the defendant appealed to this Court.

£miles, for the plaintiff.

Winston, Sen., for the defendant.

Pearson, C. J.

Assuming that the recital of the fact, that the title of the bargainor was derived from John McAlister, is a sufficient reference to the deed of 1813, to constitute it a part of the deed of 1829, for the purpose of construction, according to Ritter v. Barrett, 4 Dev. and Bat. 133, and assuming also, that the legal effect of the deed of 1813, was to vest in Sarah McAlister, the absolute estate, and not an estate for life only, as is admitted on both sides, it would be a matter of regret, if the legal effect of the deed of 1829, is to pass to John McAlister, the absolute estate; for it is manifest, that at the time Sarah McAlister executed the deed, she supposed she was entitled only to a life-estate. That was all she was paid for, and all she thought she was selling, and if more passed, she has not been paid for it, and John McAlister got more than he bargained for.

After giving to the very interesting and ingenious argument of Mr. Winston, full consideration, the Court is of opinion that the legal effect of the deed of 1829, is to xoass only an estate for the life of Sarah McAlister. The substance is, “ I am entitled to a life-estate, under the deed of 1813, executed to me by John McAlister, which right and title, I hereby convey to him for value received.” “ Which,” as a relative pronoun, refers to the life-time estate, and restricts the operation of the deed to it. Had general terms been used, e. g. “ 1 sell the negroes” or “ all my estate” or “ all my right and title,” there is no doubt that the absolute estate would have passed, although she supposed she had a life-estate only, and intended to sell no more than she thought she had a right to sell. Thus the use of a simple term, with a single eye to the object in view, has saved to her the benefit of the fact that, without knowing it, she was, in truth, the absolute owner of the slaves.

It was said in the. argument that to sell an estate for one’s own life, leaving the ulterior interest undisposed of, when, of course, the price must be very small, is so contrary to the ordinary course of dealing, that the Court ought to be slow to admit such a construction. True! but the force of the suggestion is met, and made to recoil, if, in point of fact, the vendor believes he has only an estate for his own life; for then, supposing the slaves to consist of a woman and two young children, it is reasonable for the tenant for life to be willing to sell for a low price, and get rid of the charge. That such was the belief of the vendor in our case, is set forth in the very first clause of the deed.

Yielding the question as to the woman, Mr. Winston insisted that a different construction should be made in respect to the children. The distinction is not tenable. The disposition of the children is made by the words “ and her two children also.” Two conjunctions are used. The word “also” is added to express the meaning more distinctly, that the children are to pass as well as the mother, and in like manner. There is no error.

Nee CueiAM, Judgment affirmed.