Humphries v. Dawson , 38 Ala. 199 ( 1861 )

R. W. WALKER, J.

[1.] The -original complaint described the plaintiff as “trustee of Leonora Hobbs and Frances Dillard.” Upon the trial, against the defendant’s objection, the plaintiff was permitted to amend the complaint, by adding, “and for the remainder-men which are their children.” In this we think there was no error. The original complaint averred'that the plaintiff was suing, not as an individual, but in a representative capacity. The amendment is but a further and niore accurate description of his representative capacity, and did not substitute a new cause of action. If the complaint had been by the plaintiff individually, he could have amended it, so as to authorize a recovery in his representative capacity. — Crimm's Adm'r v. Crawford, 29 Ala. 626. In that case, it is said — -“Such an = amendment does not substitute a new- cause of action. The cause of action is really the same. The amendment merely' inserts that which is necessary to secure a recovery upon* the existing cause of action, which was imperfectly set’ forth.”

2. The matter of the plea in? abatement, which was'-rejected by the court, would not have been 'available to the' defendant; and hence its rejection-could work no injury to-him. It is the priority of a suit, that abates another" founded on the same cause of action. — 1 Chitty’s Pl. 215 ; Renner v. Marshall, 1 Wheaton, 215. If there be any reason which renders this principle inapplicable in the present case, a fatal objection to the plea is found in the' other principle, that the pendency of a suit in another State' is no cause of abatement of a suit instituted iir-this State. Browne v. Joy, 9 Johns. 221; Walshe v. Durkin, 12 Johns. 99; Salmon v. Wooten, 9 Dana, 422 ; McGilton v. Love, 13 Ill. 486 ; Drake v. Brender, 8 Texas, 352 ; 2 Parsons on Contracts, 232 ; Hatch v. Stafford, 22 Conn. 496, et seq. It appears, also, that the pendency of a bill in eqpity has not' usually been considered sufficient ground for a plea in abatement of a suit at law. — Colt v. Partridge, 7 Metcalf, 570 (576); Blanchard v. Stone, 16 Vermont, 234; Hatch v. Stafford, 22 Conn. 495-6 ; Story’s Conflict of Laws, § 610 (a), Bennett’s edition.

3. The motion to suppress the deposition-'of-John D.~ Dawson was properly overruled. The donor is a competent witness for the. donee, or one holding under the latter. Jones v. Hoskins, 18 Ala. 489.

4. There was no error in overruling the motion to suppress the original deed of gift.

The bill of exceptions does not show that any exception was taken to the ruling of the court iii relation to the offer i<af the defendant to read a portion of the former deposition • of John D. Dawson.

5. It will not be denied, ¡-that, if, on the marriage, or coming of age of ¡the. daughters, the property had been divided, and their respective portions delivered-to them by the trustee, he could not afterwards, and during the lives of the daughters, have maintained detinue for the recovery of the slaves, against the daughters, or any one holding under •them. Eor, whatever might be the case as to the continuance of the legal title in the trustee, it is obvious that, on the facts supposed, the trustee would not, during the lives *«f the daughters, have the legal right to the possession -of the slaves. ¡On the «contrary, the right to the possession would, according to the stipulations of the deed, be in the ■.daughters; and where the deed stipulates for the possession •-of the cestui que trust, the trustee, though he may be ■•clothed with the legal ‘title, cannot maintain detinue against the cestui que trust. — Gunn v. Barrow, 17 Ala. 247.

Now it is obvious that the deed contemplated a division •of the property on the marriage .or coming of age of the • daughters. That is the period indicated as the time at •■which it was-the duty of the trustee ¡to make the division. It is obvious, moreover, that the direction that the division ■.should be then made, was intended mainly for the benefit »©f the daughters; .its purpose being, to secure to them, .after their marriage, or .coming of age, and during their lives, the separate use and enjoyment of equal shares of thé ¡property. The division then -made would, it is true, have •the secondary effect of ascertaining ¿he respective portions ■■of the property to which 'the rights of each set of remain•der-men would-attach. But it is not to be doubted, that '•the primary purpose of-making the division at the particular time designated by the donor, was what is above stated. It appears, however, thsitthe trustee failed to perform the ¡¡duty caát upon him, to divide the property on the «marriage or coming of age of the daughters. The evidence itended to show that, without making any such division, he nlelivered.all the slaves to one of the daughters after .heir marriage. The bill of'exceptions discloses, moreover, that there was evidence tending to show that, after the marriage of tire daughters, an arrangement was effected, to which--tfhe trustee was a party, and-the validity of which he is therefore in -no -condition do question1, -whereby Mrs. Dillard-received-from the trustee other'property-, in lieu of her'interest in-the slaves,-' for ■ the purpose * of ■ Vesting in Mrs. Iiobbs,- who was then- in possession, the’entire interest of both daughters under the deed ;• and-that in pursuance of this arrangement,-'Mrs. Ilóbhs and her husband remained in possession1 of the entire -property until they •sold to Lawrence.

Omth-is state of faóts, it is obvious that;*so far'as'the interests of the daughters are concerned, the necessity for a division is obviated, by the arrangement whereby the two interests weremerged, and vested in one-of-the daughters. Id is also* clear, that if the facts were as here supposed,.‘the division of the property which, under the deed, it was the duty of the trustee to-make; on-the marriage or coming of age of the daughters, was no longer practicable when this suit was begun.- The division' intended by the donor was to-’be made, as wo have seen, omthe marriage or-coming of •age of the daughters. The property consisted of a female slave and her increase. From the- nature-of the'property',-., constant changes must be going on in its value- and-amount, so* that, at the time this-.suit was brought, it was manifestly impossible to make-the very division-which should have been made at the- time ■ appointed”by the deed. - In other words, it would not be practicable to so divide the property, iml-S53, as to allot to' each daughter the'very share which would have falten to her if the 'division ha'd been made four or five years sooner. So-far-as the interests of the remainder-men are concerned,- ¿division madSnow would be no ■more in conformity with the requirements'of the deed than one*-which may be" made 'at- the terminatibm off'-'the life-estate. Thé trustee has suffered the time appointed for the division to pass by.'" The donor intended that the division should take' place on the marriage or coming of age of the daughters, before the delivery of the property to them, and when both daughters had an interest in the property, and each might be considered as representing her own children, the remainder-men after her, in the making of the division. By the act of .the-.trustee, the making,.of ■ the division at the time, and. under the circumstances intended by the donor, has become impossible ; -and'' so fair ■ as the interest's of the remainder-men, or the purposes of the donor in regard to them,-are concerned,..there is no- reason- why the division may not- be made -at the termination ■■ of the life-estate, as well as at this, time., -

The ground,on which the trustee’s right to redhcethe property to’hfe' possession--is placed, that the trust."in -reference to the.division has not" been executed. But,,as we have seen, there was evidence tending-to show thatrby the agency of the trustee himself;-a state‘of facts has been* brought about which renders the execution of that trust, as contemplated by the deed, no -longer-practicable ; and oua-.npinion is, that? if the-facts referred to were established by. the evidence, it was not essential to the defense of.this suit to show, that there had .been an. actual division or partition of the property. Wé think that "-the court erred^in the third charge given; and in refusing to give the fifth charge asked by the-defendant..

We do not intend, by. anything we .-have, said, to express - an opinion adverse to the continuance of the legal title in--,the trustee ; nor are we to be' understood as indicating any opinion upon the question of . the .-right - on duty of thé trustee to protect, by proceedings in ..another,.forum, the interests of the remainder-men.

Judgment.reversed, and cause remanded.