Kornegay v. . Carroway , 17 N.C. 403 ( 1833 )

The bill prayed for a discovery, an account of the sums raised by the sale of the slaves, and for general relief.

The defendant Susannah admitted the conveyances as stated in the bill, but insisted that the deeds executed by her to the wife and daughter of Kornegay contained a reservation to himself of a life estate in the slaves. She admitted that she did, with the consent of the wife of Kornegay, obtain possession of the deeds, and that she destroyed them; that her reason for so doing was that Kornegay, under pretense of (404) procuring her to execute a letter of attorney to him, had obtained a deed conveying all her estate to him, and had defrauded her out of the whole of it.

Upon replication taken to the answers, the proof was that the deeds executed by the defendant Susannah to the wife and daughter of Kornegay, were dated 10 October, 1824, and contained a reservation of the use of the slaves for the life of the donor. It appears that the case made by the bill is a very different one from that made by the proofs in the cause. If the case made by the bill had been supported by proofs, the plaintiffs would have been entitled to relief on the special prayer in the bill to have an account of the value of the slaves, after the defendants had spoliated the title deeds, and taken the slaves away and sold them to persons unknown. In that case there would have been no necessity to have made the wife of Henry Kornegay a party plaintiff to the bill, because an absolute deed for slaves or other personal property to a feme covert, and assented to by the husband, would have vested the title to him, when the slaves or other property should have been reduced into possession. 1. Thomas Coke, 132, 133. The bill states that the deeds were absolute, and that the husband had reduced the slaves into his possession. They would seem, then, to be his property, but the evidence in the case shows that the deeds were executed subsequent to the passage of the act of Assembly authorizing slaves to be limited by deed, as they might have been previous to the passage of the act, by way of executory devise in last wills and testaments; and the evidence further shows that Susannah Carroway reserved to herself a life estate in the said slaves, which reservation, with a limitation over to the wives of Stephen Bryant and Henry Kornegay after the death of the tenant for life, was good in law, both as to the life estate and also as to the limitation over. By the case made, according to the proofs in the cause, neither (405) Henry Kornegay nor his wife had a right to the possession of the slaves until the death of Mrs. Carroway, the tenant for life. If, therefore, it becomes necessary for the parties to apply to a court of equity for relief concerning the said slaves, or any interest arising out of the sales of the same, previous to the death of the tenant for life, it would be essentially necessary that the wife should be a party to the bill, if she was alive; and if she was dead, it would be equally necessary that her administrator should be a party, because by the deed being executed to her, the limitation after the life estate enured to her, and not to the husband. The general rule of law is that choses in action which are given to the wife, either before or after her marriage, survive to her upon the death of her husband, provided he has not reduced them into possession. Richards v.Richards, 22 E. C. L., 119, 121. In Garforth v. Bradley,2 Ves., 675, LordHardwicke says that when a chose in action comes to the wife, whether vesting before or after marriage, if the husband die in the lifetime of the wife, it will survive to the wife, with this distinction, that as to those that come during the coverture, the husband may for them bring an action in his own name, and may disagree to the interest of the wife, and that a recovery in his own name is equal to reducing into possession. But in this case Susannah Carroway having a life estate in the slaves, by virtue of the deeds which limit the remainders to the plaintiff Henry's wife and child, it would have been impossible for him legally to have reduced the slaves into possession during the continuance of the life estate, if the slaves had not been sent away. If, therefore, during the life of Mrs. Carroway it should so happen that Henry, the husband, should die, the right to the slaves would survive to the wife.Hynes v. Lewis, 1 N.C. 131. So, on the other hand, if the wife should die during the life of Mrs. Carroway, and then she should die, the administrator of the wife, and not the husband, should bring the action to recover the slaves. Whitbie v. Frazier, 2 N.C. 275. The slaves (406) having been turned into money by the conduct of the defendants, does not alter the rule as respects making the wife a party to a bill brought to secure the fund. In this case she is not a party, and we think the husband cannot proceed without her, if she is alive, and if she is dead, it is equally necessary that her administrator should be a party. If the want of a wife as a party was the only objection to this bill, the Court would order the case to stand over, and give leave to amend by making the necessary parties, but it appears that the case stated in the bill is quite different from the case made by the proofs, and the plaintiffs cannot proceed without additional parties, and a quite different case made in the bill, to correspond with the proofs in the cause. The present bill is framed upon a supposition that the deeds for the conveyance of the slaves had been unconditional and absolute, and that the plaintiffs were, in consequence of the destruction of their title papers and the asportation of the slaves, entitled to a decree for an immediate account of the value of the said slaves. Whereas the case made by the proofs in the cause could only entitle the plaintiff and their wives to entertain a bill for relief so far as to have a decree that the slaves and their increase be restored to the wives of Kornegay and Bryant on the death of Mrs. C., the tenant for life, or a decree for securing the fund in case the slaves could not be obtained on the determination of the life estate.

It is a rule in equity that if relief cannot be given under the prayer exactly as prayed, contained in the bill, the court will assist the particular prayer under the general prayer; but relief inconsistent with the specific relief prayed cannot be given under the general prayer, unless when a bill is filed by an infant, who may have a decree upon matter arising upon the state of his case, though he has not particularly insisted upon and prayed it by his bill. Walpole v. Oxford, 3 Ves., 416; Grimes v.French, 2 Atk., 141; 12 Ves., 48; 13 Ves., 114; Stapleton v. Stapleton, 1 Atk., 6; 2 Mad., ch. 171. In the case before the Court no relief could be given under the general prayer but what would be (407) inconsistent with the particular prayer contained in the bill, viz., an immediate account; and, therefore, this Court could not help the plaintiff, under the general prayer, if all proper parties were before it.

We take no notice of an objection made at the hearing, that the bill was multifarious, because if this objection were well founded, it should have been made in the pleadings. The plaintiffs cannot get along without their bill being entirely remodeled, as well as the making the wife of H. Kornegay a party plaintiff.

We feel ourselves under the necessity of dismissing the bill, which is accordingly done, without prejudice to the rights of the parties, and without costs.

PER CURIAM. Bill dismissed.

Cited: Whitehurst v. Harker, 37 N.C. 293; Johnston v. Cochrane,84 N.C. 448.