Williams v. Avery , 38 Ala. 115 ( 1861 )

STONE, J.

We think the testimony of the witnesses ‘Reaves and McCreary .fully establishes the fact, that the •copy-deed attached to their depositions is a substantial •copy of the title to the slave Pickens, as the same was ex■ecuted by McCreary and wife -to Mrs. Williams. But we •do not concur with .the solicitor of appellee, in the opinion ■that, under that deed, -the title vested in Mr. Williams, the husband of appellant. Mrs. Williams was then a married woman; and the language of the -conveyance is, “We, .John McCreary, and Rebecca McCreary, his wife, abovesnamed, have relinquished, and do by these presents relin-quish to the .said Ruthy Williams, wife of William Williams, and her bodily heirs, to their exclusive use, benefit .and behoof, -all the right, title,” &c. The word exclusive is sufficient to exclude the marital rights .of Mr. Williams. Gould v. Hill, 18 Ala. 84.

We suppose the argument against the sufficiency of the language to exclude Mr. Williams’ marital rights, rests on the supposition, that the words “to their exclusive use’” .give the use and enjoyment of the property jointly to Mr, ,and Mrs. Williams. Such is not its import. The word tihevr refers to Mrs. Williams and her bodily heirs j and the name of her husband was inserted- solely for the purpose-of rendering the description of the grantee (Mrs. Williams); more complete.

It does not- vary this- question* that the phrase, bodily heirs is- one of mere limitation. We arfe not inquiring whether any persons could claim this property- as purehasers, under that- designation. Wé are in: search of the meaning which the grantor attached to the language he employed ; and, however much he may have mistaken the legal import of his own language,^still he believed he was describing, a definite class of persons ; and when he added, that the slave was conveyed to their exclusive use”, his meaning was, that the slave shouldgo exclusively “ to Euthy Williams and her bodily heirs”. — See Johnson v. Johnson, 82 Ala. 642.

[2.] The bill in this case alleges; that Mrs. Sunday, the mother of complainant and of Mrs; McCreary, gave to them the slave Ruth and her future increase, and secured the property to their-sole and separate use ;/“and delivered said woman and her children to the said Eebecca (McCreary) for; the use of the said Eebecca and your oratrix”. The bill them alleges, that a division of the property was made by the two sisters ; that on such division the boy Bickens fellsto Mrs. Williams, and that' thereupon Mr. and Mrs.-.McCreary conveyed'the slave Bickens to the exclusive use of Mis. -Williams and her bodily heirs. Under these averments, the right of Mrs. Williams to claim-the slave Bi'ckens as her separate estate rests on the terms-of the alleged gift of Mrs/Sunday; the mother. The proof utterly fails to show that the property was secured to the-separate irse of - Mrs. McCreary and Mrs. Williams, by the-' terms of the gift from their mothery and*-■ in - fact, fails to-* show that there-was such gift. The averments of the bill, then, considered fin connection with the entire failure to> prove that the property was secured to the separate use of the two sisters- by the terms of the gift from theiir mother, make out a case- of tenancy in common between' Mrs. • McCreary, and 3MS’Si-Williams,-.-the possession - being in Mrs/McCreary. The -possession of one tenant in common, is the possession, of hoth; and, under well-settled, rules, the marital rights of Mr. Williams attached to his wife-’s interest in the property thus held. — See Walker v. Fenner, 28 Ala. 367, mid authorities cited.

[3.] The property,-then, at the time, of the division,.-was the property of .Mr.. McCreary and Mr. Williams, so far as the testimony in this record enables us to ascertain its ownership ; and .the attempt to secure the slave Pickens to the .exclusive use of Mrs. Williams was.,but an attempt by the .husband 'to-settle his own property on his wife. This, if free from fraud,-actual or constructive, might in some cases be done, and the transaction would be upheld in equity. See Williams v. Maull, 20 Ala. 730, et seq.; Wilson v. Sheppard, 28 Ala. 629 ; Cole v. Varner, 31 Ala. 244. It does not appear.in this case, that the debts under-which this property -was - sold, had .any existence when-, the title was .thus attempted to be settled--on Mrs." Williams. But the proof shows that, in that attempted .settlement, the parties were influenced by the intention to hinder and defraud the creditors of Mr. Williams, the husband. This intent to defraud avoided the conveyance, and renders the propert]? subject to after-contracted debts of Mr. Williams. — See Huggins v. Perrine, 30 Ala. 398, and. authorities, cited ; Kavanaugh v. Thompson, 16 Ala. 817.

If it be objected that this defense was not insisted on in the answer, and therefore cannot be allowed, the answer is found in the fact, that the. equity of ■ this feature of complainant’s bill does .not rest ¡on the-separate estate created by the act of Mr. -Williams,, the .husband. It goes beyond that, as we have.-shown, and claims that the. property was secured against Mr.. .Williams’, marital.rights, by the terms of Mrs. Sunday’s gift. : Under these circumstances, even if the variance between the .-averments and.the proof do not defeat the present bill — a question we need not and do not decide — still the complainant,is in no. condition to invoke the-rnle of practice above • supposed. The complainant does not, in 'her bill, rely on the .title created by her bus« band,- and cannot claim that thedefenclants should specially avoid that which in the bill, .appears to -be. simply an incidental averment.

-It being shown that', the'slave Pickens-never was the property ©f Mrs. Williams, it follows that the money for which he was sold was -not hers •; and hence' her- claim <of ¡the- slave Nancy has n© foundation to rest van.

Decree .of'.the. chancellor affirmed.