Nance v. Coxe , 16 Ala. 125 ( 1849 )

DARGAN, J.

In order to entitle a remainder-man to demand security of him who has a life estate in the chattel, that it shall be forthcoming when he in remainder shall be entitled to the possession, it must be shown that there is danger of waste or deterioration to the chattel, in the hands of the party who has the present interest, or that it will be removed from the country, so as to render it uncertain whether the remainder-man can obtain possession at the determination of the estate of him who has the present right. The rule formerly was, that he who had the remainder could in all cases apply to equity, to obtain security from him who had the life estate, that the property should be delivered to him when he became entitled to possession; and it was not necessary to show either waste or danger of waste, to entitle him to this relief. This rule, however, has long since been abandoned, both in England and the United States, and the remainder-man must now show danger to his interest, before he can obtain security for the delivery of the property, when he shall be entitled to possession. Lewis v. Hudson, 6 Ala. 462; 2 Story’s Eq. 140, 141; 3 Randolph, 397; 2 Paige, 132. This principle, which is now recognised by all Courts of Chancery, shows that the complainants are not entitled to the relief they seek. The bill, it is true, states that the property may be scattered, or that the defendant may remove from the State, and that complainants have no security for the property when they shall be entitled to receive it. These allegations might be made in every bill, but they do not afford a ground for relief, for equity can only interpose when some facts are alleged which induce the Chancellor to believe that injury1 or loss will befal the remainder-man without Iiis aid, requiring the present possessor to give security.

But it is contended, that the complainants are entitled to the relief prayed, as to the slaves embraced, in the marriage contract between the defendant and his wife, because he denies the right of the complainants to them in his answer to the original bill. . It is not necessary to decide whether the assertion of the absolute title by him who has the present right will entitle the remainder-man to apply to equity to protect his rights; for the allegations of the original and.supplemental bills, in connection with the exhibits on which the complainants’claim title, do not show that the complainants have such a title as will enable them to demand security. We do not wish to be understood as determining that the complainants may not have a title in remainder to those slaves; but the bond set out in the original bill, together with the marriage contract, without other allegations or facts in connection with them, do not show a title in the complainants to the slaves embraced in the marriage contract, either in remainder or otherwise.

There is no error in the decree, and it must be affirmed.