Pitts v. Curtis , 4 Ala. 350 ( 1842 )

ORMOND, J.

As the husband is.not entitled to the choses in action of the wife not reduced into possession during the coverture, the precise question presented on the record is, whether the right of the wife of the defendant in error to the slave in controversy, under the will of her father, was a present vested interest, or a right in action merely.

In the case of Magee v. Toland, [8 Porter, 40,] this Court defines a chose in action to be “ any right to damages, whether arising from the commission of a tort, the omission of a duty, or the breach of a contract.” The bequest in this case was of a slave to a son of the testator, until the slave attained the age of twenty-one, and the remainder of his life to the wife of the defendant in error. This remainder in the slave cannot in any sense be considered a right to damages, but was an absolute vested interest in the slave, the enjoyment of which was postponed for a certain ascertained period.

It is of no moment that the actual occupancy, or right to the present possession for an ascertained period, was in another, that is nothing more than exists in every bailment, and no principle is better ascertained than that the possession of the bailee is the possession of the bailor. The rule of law is that the general property of a chattel draws to it the possession. The special property being in the plaintiff in error, his possession of the slave was consistent with, and was in law the possession of the tenant in remainder, who had the general property in the slave.

Such being the law, the right of the husband was perfect upon the assent of the executor to the legacy, which is shown in this case. He might have sold and transferred it before the particular estate was at an end; upon his death before his wife it would have gone to his representatives and by necessary consequence having survived his wife; the title vests in him.

These consequences all legitimately flow from the principles settled in Magee v. Toland, and such has been the decision of other Courts in similar cases. The case of Bank’s adm’r. v. Marksbury, [3 Litt. Rep. 275,] is expressly in point, and is admitted to be so by the counsel for the plaintiff in error, but he insists that that decision is founded on a statute of Kentucky, by which slaves are considered as real estate. But the statute to which he refers, was expressly designed to give to slaves bequeathed or conveyed to a married woman all the attributes of personal property. The decision referred to is not based upon a statute, but was determined upon the general principles of the common law.

There is no error in the judgment of the Court, and it is therefore affirmed.