Catterlin v. Hardy , 10 Ala. 511 ( 1846 )

GOLDTHWAITE, J.

1. This cause was heard by consent on the bill, answers and exhibits, and this consent, under the 11th rule of chancery practice, dispenses with the necessity for proof of the answer, even when it asserts new matter ; but in the present case, no consequence flows from the defendant’s assertion that the deed was not recorded in the manner prescribed by the laws of North-Carolina. We can not intend that the omission to record the deed had the effect to enlarge the apparent life estate of the first donee into a fee. If the question was here between a creditor of the donor and the donee, it might be important to inquire if the deed was properly recorded ; but here both parties, in effect, claim under the deed, and we must presume, in the absence of specific allegation, that it is valid.

2. Nor is the deed of that character as to require registration under our statutes, in consequence of the removal of the property to this State. The remainder, if one exists in the children of the first donee, is not an incumbrance upon his title, and the deed by which the remainder is shown, is a mu-niment, showing not merely the extent and value of Hardy’s title, but also of that of his children. [Swift v. Fitzhugh, 9 Porter, 39.]

3. The mere fact that two of the complainants witnessed the deed by which Hardy and wife created a security on these slaves, although assented to by the other complainants, is not stated as a fraudulent representation, that the grantors were invested with the whole title to the slaves, nor do they attempt to convey more than their right and title, whatever it was. They had the right to encumber their life estate, and unless a greater right was pretended, we do not see why any presumption of fraud should arise. [Inge v. Murphy, January term, 1846.] But however this may be, the question is one in which the defendant has no interest, as he claims under the execution, and not through the deed of trust. Not being invested with any right under the deed of trust, he is not in a condition to set it up.

4. If we had to decide this case on the common law, as recognized in North-Carolina, the question arising on the deed would not be without difficulty, but the defendant does not assert in his answer that the entire estate vested in Hardy and wife, at the execution of the deed by the laws of North-Carolina, nor can we judicially take notice of what these are, or how far the common law, as recognized there, differs from our own local decisions. [Inge v. Murphy, January term, 1846.] We must therefore pronounce on this deed as if executed here.

In Price v. Price, 5 Ala. Rep. 578, it was held by this court, a remainder could, by the common law, be created by deed, and applied the rule to a conveyance of slaves.

5. It is urged, however, that here the remainder is to the same persons as would take as heirs, and therefore the first taker is within the rule of Shelly’s case. It may well be doubted if this rule has any relation to personal chattels, — [Fearne on Rem. 490; Knight v. Ellis, 2 Bro. Ch. 570,] except as a mode by which to ascertain the intention of the testator, grantor, or donor. When the term children, is used with reference to personal estates, it is generally considered as indicating the intention that they shall take as purchasers. ]Knight v. Ellis, supra.] And even in a devise of lands to one and his children, it is construed as a term of purchase, if there be children living at the date of the devise. Wild’s case, 6 Coke, 17 ; 2 Powell on Devises, 494.] In this case, however, there is no need for construction, as the intention of the donor is clearly expressed, that the first takers shall haveonly a life interest, and that the remainder after their death shall go tothe children lawfully begotten, &c. We are clear then the children take a vested remainder under this deed, considering it by the rules of the common law as prevailing here. And we presume,there is but little question the deed would receive the same construction in North-Carolina, under their statute of 1823, (Laws of N. C. ch. 1211,) even if it would not withhout that aid.

6. It is supposed however, as the defendant denies the intention to remove the property out of the State, and also denies the intention so to dispose of it that it shall not be forthcoming, the bill should be dismissed. We entertain the opposite opinion, however, and think, whenever the tenant for life has parted with the estate, or it has been taken from him by operation of law, the remainder man is entitled of course, to call for security. This seems to be the consequence of what is said in Lewis v. Hudson, 6 Ala. Rep. 463, as there the chief reason for allowing the security was, that the property was about to be sold. Although the rule is, that the holder of the first estate will, in general, only be required to. exhibit an inventory, (1 Story, 562,) yet we apprehend this is a privilege accorded to him, because he is invested with the right by the donor, and the use will not be vexatiously meddled with. But when he ceases to exercise control over the property by his right passing to another, there is no reason not to require that other to secure the remainder-man, so that the chattel shall come to his possession when the life estate determines. [Slanning v. Styles, 3 P. Wms. 336.]

On the whole, we can see no error in the decree. Decree affirmed.