Rowland v. Partin, 54 N.C. 257, 1 Jones Eq. 257 (1854)

June 1854 · Supreme Court of North Carolina

54 N.C. 257, 1 Jones Eq. 257

BENNET ROWLAND AND WIFE AND OTHERS against CANDIS PARTIN.

Where property has been seized under an order of sequestration, to prevent a removal and hired out, the owner for life, (from whom it was taken) is entitled to these hires and the court of equity will so order.

Appeal from the Court of Equity of Wake County at the Spring Term 1854.

William Partin by his last will and testament (among other things) bequeathed as follows : “ I also give to my said wife all my negroes: namely, Morning, &c., to be disposed of at her discretion, equally between all my daughters; namely, Per-nina Partin, &c., except' my wife should be of opinion that by the increase of the said negroes, or otherwise, they should be of more value than what my sons have had heretofore, and now given to them from me, then my wish is, that my said wife may divide the surplus part of the said negroes equally among all my sons ; namely, John, &c.: nevertheless she is at liberty finally to sell one or more of said negroes as she may think proper.”

Candis Partin, the widow of the testator, mentioned in the above clause as his wife, sold two of the negroes, and the bill alleges that she was about to sell the others, and that they were about to be removed beyond the limits of the state. The bill was filed by the daughters and their husbands, praying for a writ of sequestration, and for a construction of the above recited clause of the .will, so that the interest which the plaintiffs have in this bequest may be ascertained.

The Court accordingly granted the writ of sequestration and according to the terms thereof, the negroes, in question, were seized by the Sheriff; (the widow not being able to give the security required by the Court.)

By another order of the Court, the hires of these negroes were directed to be paid to Candis Partin, the widow.

At a subsequent term of the Court, the plaintiffs filed a petition for a rehearing of this latter order, and prayed that it should be reversed. The Court on argument and consideration of this petition reversed the order, and thereupon the defendant prayed for leave to appeal to this Court, which was granted.

Miller <& Wim,ston for plaintiffs.

G-. W. Maywood & Moore for defendant.

Battle, J.

We think his Honor erred in reversing the interlocutory order upon the petition to rehear it. At the time it was entered, it was the only order to which the plaintiffs upon the allegations and prayer of their bill were entitled.— They do not pretend that they have an absolute, or, indeed, any other certain interest in the slaves in question; on the contrary, they say expressly “ that it is doubtful what estate in the said slaves they have under the bequest contained in the last will and testament of William Partin.” And they pray only to have the slaves in the possession of the defendant, and the money for which she had sold the others, secured. The flat made by the Judge, and the writ of sequestration issued upon it, were in accordance with the prayer. The plaintiffs no where set up any claim to the accruing profits of the slaves diming the life of the defendant, but on the contrary, had permitted her to enjoy them unquestioned for nearly thirty years. Had she given bond for the forthcoming of the slaves according to the proviso in the fiat, and writ of sequestration, she would undoubtedly have enjoyed their hires and profits; and we think that she was equally entitled to them, when the slaves were taken into possession, and hired out by the Sheriff. The order to that effect made by the Court was therefore, proper, and ought not to have been reversed. This opinion will be certified to the Court below, to the end, that the order to reverse the decretal order in question may itself be reversed with costs, and that the Court may proceed in the cause.

Decree accordingly.