Mercer v. Byrd, 57 N.C. 358, 4 Jones Eq. 358 (1859)

June 1859 · Supreme Court of North Carolina

57 N.C. 358, 4 Jones Eq. 358

NOAH MERCER AND WIFE and others against MARTHA BYRD.

Although it is the practice to allow affidavits in support of the allegations of the bill to bo read, on applications to dissolve a special injunction or sequestration, and it is error to refuse them, yet, where upon an appeal the affidavits refused below were read, and with their aid, no case was made for such an injunction, it was Held that an order below, dissolving it, should not be reversed.

To induce a court of equity to interfere with a tenant for life, in the enjoyment of his property, by an injunction or sequestration, it is necessary for the remainderman to allege and prove facts and circumstances, showing reasonable ground to apprehend that such tenant will commit a fraud and defeat the ulterior estate, by destroying the property or removing it to parts unknown.

(/S'windall v. Bradley, 3 Jones’ Eq. 354, cited and approved.)

Appeal from an order of the Court of Equity of Robeson county, dissolving an injunction and sequestration, Hbatii, Judge, presiding.

William Byrd, by his will, bequeathed the slaves in question, and other property, to his widow, the defendant, during her natural life or widowhood, but provided, that if she died, or married, before their youngest child came to the age of twenty-one, that the said property and the increase should be equally divided among the plaintiffs, their children.

The bill alleges, that the defendant, who was in possession of the slaves bequeathed, threatened that she would sell them to some person, who would carry them beyond the limits of the State, and had endeavored, and was then endeavoring to do so, and had repeatedly declared that the plaintiffs should never have any benefit of the said slaves.

• The prayer of the bill is, that the property, in question, may be secured so as to be forthcoming on a certain day, named in the bill, when they allege they are entitled to have a division, and to take possession thereof.

The answer of Mrs. Byrd denies the allegations pointedly and without evasion ; she says of Ell, one of the slaves mentioned in the pleadings, that finding her unruly, and being unable to manage her, she had been compelled to hire her out, and that she took the advice of a lawyer whether she had a right to sell her or her interest in her, and invest the proceeds in another negro, to be held for the benefit of her children, mentioned in the will, and that being advised that she could not sell and convey the absolute title to the said slave, she refused to make a conveyance of any interest whatever.

There were four affidavits filed by the plaintiffs, two or them made by plaintiffs in the suit, reasserting some of the allegations in the bill; one other was that of oue Ivey, who deposed that “he heard Mrs. Martha Byrd say, that they had as well let her alone, and let her sell or hire the negroes, for they were there in her way, she feeding them there, and they doing but little good or none.” The fourth was that of Riley Kinlancl, who stated that “ he heard Mrs. Byrd say that she intended to do as she pleased with the property, when speaking of the negroes she got from her husband’s estate, let her children do what they would; that the negroes were her own and she meant to do as she pleased with them.” lie says that i! the property is not well taken care of, and it is continually less and less valuable by reason of neglect and bad management.” On the hearing of a motion to dissolve, these affidavits were excluded by his Honor, who ordered the injunction and sequestration to be dissolved, from which the plaintiffs appealed.

On the hearing in this Court, the affidavits were read.

Kelley, for the plaintiffs.

leitch, for the defendant.

Pjcabson, O. J.

As this is a specie$ injunction and sequestration, the plaintiffs ought to have been allowed to read affidavits in support of their bill; Swindall v. Bradley, 3 Jones’ Eq. 354.

The effect of the error, however, is cured, because at the hearing in this Court, the plaintiffs were allowed to read all the affidavits, and thus the matter was presented upon its merits.

To induce a court of equity to disturb a tenant for life in the enjojunent of the property, by having it sequestered, so as to compel security to be given for its forthcoming at the instance of the remainderman, it is necessary for him to allege and prove facts and circumstances, showing reasonable ground to apprehend that the tenant for life intends to commit a fraud, and defeat the ulterior estate by destroying the property, or removing it to parts unknown ; Swindall v. Bradley supra, and the cases there cited.

The allegation of the plaintiffs is: “The defendant has threatened that she will sell the slaves to some person, who will conve3r them beyond the limits of this State, and has endeavored, and is now endeavoring to do so, and has repeatedly declared that your orators and oratrixes, shall never have any benefit of the said slaves.” This allegation is denied by the defendant positively, and without any sort of evasion. In regard to the negro woman Ell, she says, “ finding her unruty, and being unable to manage her, she has been compelled to hire her out, and took the advice of a lawyer, whether she had a right to sell the slave or her interest in her, and invest the proceeds in another negro, to be held for the benefit of her children, mentioned in the bill, and being advised that she could not sell and convey the absolute title to said slave, lias refused, and still refuses, to convey' any interest whatever.” The affidavits read b3r the plaintiffs do not support their allegation.

It seems, from the averments in the bill, that the plaintiffs suppose they have a light to have slaves devided at the time, when the youngest daughter arrives at the age of twenty-one, although the defendant may then be living and unmarried. This is an entire misapprehension, and it was natural for the defendant to take offense at so unfounded a pretension on tiie part of her sous-in-lavT, evincing as it does, an itching palm and a hot haste to interfere with the slaves before her estate terminates, or their right attaches. Such conduct furnishes a satisfactory explanation of the contents of the'affidavits.

The decretal, order discharging the sequestration, is affirmed.

Per Curiam, ' Decretal order affirmed.