Little v. . Marsh , 37 N.C. 18 ( 1841 )

If the paper writing in this case was witnessed (27) — which the answer does not deny — it passed the title of the slave from the donor, by force of Laws 1806 (Rev. Stat., ch. 37, sec. 17), except that the ceremony of registration was required to give it full effect; and this title inured to the husband, at least for life (as remainders in slaves created by deed or writing after a life estate are good. Rev. Stat., ch. 37, sec. 22), unless the husband dissented therefrom; and his possession for twelve years is evidence that he did assent. 1 Prest. Touch., 142. If a bond, note or bill be given to the wife, or to the husband and wife, during coverture, the legal title vests in the husband on his assent, and he may sue alone, or he may elect to join his wife. 2 Leigh N. P., 1109, and the authorities there cited. The husband, being entitled to the instrument, could have had it proved and registered, under the Acts of Assembly giving further time for registering deeds, writings, etc., and then the husband's inchoate title would have been complete, at least for his life. The wife had no power to redeliver the paper writing to the donor. But it is said if the facts were so, Ashcraft would still have been but a trustee for the separate use of his wife and children, and the slaves would not have been liable to be taken in execution for his debts. If there was no doubt left upon the mind of the court that the paper writing contained that which the defendant in his answer says it contained, and contained that so expressed as to deprive the husband of any beneficial interest in the slave conveyed, we should certainly hold that the plaintiff was not entitled to the interference of a court of equity in his behalf. But the question in this case is whether Ashcraft took as a trustee or in his own right, and the answer of the defendant appears to us to be illusory and to want frankness, candor and precision. The defendant (28) admits that he took back the paper in 1837. If it were such as he states it, it might operate materially against the plaintiff or the creditors of Ashcraft. There was a strong inducement, therefore, for him to preserve the paper, if it was written as he would have us to suppose. But although he speaks with some degree of positiveness as to his intent in executing the instrument, he is vague and uncertain as to the language of the instrument which declares that intent. He describes it as having been made "to that effect," and "he thinks" it was to her separate use for life, and afterwards to her children. His answer is equally unsatisfactory as to the destruction of the instrument. His words are, "he thinks it is destroyed," "he has it not in his possession," etc. Spoliation is always looked upon by a court of justice with suspicion. The defendant, to be sure, was not interrogated by the bill (as he yet may be) whether there was a subscribing witness, and who he was, nor in whose hands the defendant placed the paper after he got it back in 1837. He, however, is particularly cautious in not giving us any information on these points. Under all the circumstances we think the judge was right in directing an injunction until the hearing.

This opinion must be certified to the Court of Equity of Anson County, with instructions to proceed according to the same; and judgment must be entered for the plaintiff for the costs of this court.

Ordered and decreed accordingly.

PER CURIAM.

Cited: Miller v. Washburn, 38 N.C. 165; Deven v. Eller, 42 N.C. 29;Mosteller v. Bost, ib., 42.

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