Lee v. . McBride , 41 N.C. 533 ( 1850 )

The bill was filed on 7 November, 1843, and states that Wilson G. Nash, on 14 June, 1841, by deed, conveyed to his daughter, Judith Lee, two slaves by the names of Sam and Harry, during her life, with remainder after her death to the plaintiff, then an infant son of the said Judith, reserving, however, to the donor the use of the negroes during his life; that the donor died, and shortly afterwards the defendant McBride purchased the said interest of Judith in the slaves, and took them into his possession and carried them beyond the limits of this State and sold them in October, 1843; that McBride was insolvent, but still had the money in his hands which he got for the negroes; and that the plaintiff believed he would lose his interest in the negroes unless McBride should be compelled to give security for their value. The prayer is, "that the defendant may discover what prices he obtained for the said negroes, and that he may be compelled to give security for the value of them, to be paid when the plaintiff should arrive at the age of 21 years, or to deliver the said negroes at that time to the plaintiff."

(534) The answer admits that Nash executed a deed for the negroes, but not to the effect stated in the bill. The deed is exhibited with the answer. By it the donor reserved the negroes to himself during his life, and limited them thereafter to his daughter, the mother of the plaintiff, until the plaintiff should arrive at the age of 21 years, and then to the plaintiff absolutely, with a proviso, however, that should the plaintiff die before arriving at that age, then to such other child as the daughter might afterwards have who should first live to be 21 years of age.

The answer states that Jesse B. Lee, the husband of Judith Lee, was in possession of the negroes after the death of Nash, claiming them under the gift of his wife, and that under sundry executions against his property the negroes were sold by the sheriff for and during the term limited by the deed, namely, until the plaintiff should arrive at full age; and the defendant became the purchaser of that interest in them; that the defendant, in October, 1843, sold the slaves to a person living in Virginia for $690, and received and used the same; that the defendant did not sell the negroes in absolute title, but expressly sold only his own interest in them, as he had purchased it, as aforesaid, that is, until the plaintiff should come of age, and that the sum received by him was not more than a fair price for the negroes during that period.

The evidence did not materially vary the case from what the answer states it to have been, but rather confirms it, as it appears that the whole value of the negroes was, perhaps, double the sum for which the defendant sold them. Upon the hearing on the circuit it was declared to be the opinion of the court that, inasmuch as the defendant purchased a particular estate in the negroes until the infant plaintiff should arrive to the age of 21 years, it was a fraud upon the plaintiff, and intended to defeat the right in remainder, for the defendant to carry the slaves into Virginia, and there to sell them; and it was (535) thereupon decreed that the plaintiff should recover from the defendant the full sum of $690, with interest thereon from the filing of the bill. and the costs of the suit, from which the defendant appealed. The tenor of the deed under which the plaintiff claims is so different from the statement of it contained in the bill that perhaps it might properly be held that the plaintiff has failed to establish the right alleged by him. But passing by that, the Court is of opinion that the decree is erroneous, both in the extent of the relief decreed and in the reason assigned for giving that relief. The decree is for the immediate payment to the plaintiff, though not yet of age, of the whole price which the defendant received for the negroes, with interest thereon from the bill filed, and that without any regard to the value of the particular estate or that in remainder, either at the day of sale or of the decree pronounced. That principle, as it seems to the Court, cannot be supported, even upon the supposition that the particular tenant sold the property out and out; for it amounts simply to this, that by such a sale the particular estate is forfeited or extinguished. That is true at common law in respect to conveyances of real estate in some instances. But even that is so only when the conveyance is one which passes the land itself, whether rightful or wrongful, as a feoffment or fine; and a bargain and sale, or other rightful conveyance, has no such effect. But equity proceeds on no such idea of forfeiture in any instance, unless provided as a stipulation in the instrument creating the estate, or imposed by some particular law. We believe in several of the States there (536) are statutes which enact that a sale, or removal out of the State, of slaves by a tenant for life or for any other particular term shall work a forfeiture. It is so extremely difficult in many cases to fix upon any just rule for compensating the remainderman for the convenience and expense he almost certainly, and for the loss he may probably ultimately, sustain from an absolute disposition of slaves by the particular tenant or the removal of them by him out of this State and to parts unknown to the rainderman [remainderman] — and especially when the slaves are females — that it would certainly be a great relief to the courts and, apparently, wise legislation to provide by statute that by such a sale out and out, or by the removal of slaves out of the State, the particular estate should be forfeited, and the remainderman be entitled, at his election, immediately to recover the slaves themselves from the possessor or from the particular tenant the price he got or the value. But without the authority of the Legislature, the Judiciary cannot undertake to pronounce the particular estate extinguished by the wrongful act of the owner, in professing to sell and convey the whole property, or in removing them out of this State — which last may or may not be to the prejudice of the remainderman, though it generally is. Courts of equity, in particular, will never set up such a doctrine of forfeiture, as it is, on the other hand, one of the jurisdictions of those courts to relieve against it. Upon that ground the decree is deemed erroneous. How far it should be varied, and to what extent the plaintiff would be entitled to relief, if the defendant had sold the whole property in the slaves, or had carried them to parts unknown to the plaintiff, with the intent to baffle his search for them and defeat his right, it is not necessary at present to say, nor, in some cases which might be supposed, would it be very easy to say. As the case stands, it is not established that the defendant professed to sell the negroes absolutely; but the contrary is to be inferred. The (537) bill does not distinctly charge, nor does the decree find, an absolue [absolute] sale, but only, in general terms, that the defendant sold the negroes. As the bill is thus vague, it is not seen how the Court could declare such sale absolute, thereby going beyond the allegations of the party.

But the defendant has answered, assuming the bill to contain that allegation; and he denies it explicitly, and says that he sold the negroes as he bought them, that is, until the plaintiff should come of age. There is nothing to contradict that, or to bring it into doubt, but the single fact that the defendant carried them to the adjoining State of Virginia and sold them. We are not prepared to say that in any case that circumstance, by itself, would be sufficient to establish that the sale was of a greater interest than belonged to the seller. But it cannot have that effect here, in opposition to the positive averment in the answer, and when the price received, as stated in the answer (which the plaintiff admits to be true, in that respect, by taking his decree for the sum), was much less than the value of the whole property and only a fair price for the real interest of the seller. It ought not, therefore, to be assumed that the defendant sold the negroes for more than the term for which he owned them, nor a decree made upon that hypothesis, but the contrary. Then, if the defendant sold only the right he had, it cannot be questioned that he would have been justifiable in making it, had he made it to an inhabitant of this State, and not upon a concerted purpose that the vendee should carry them out of the State in such a manner as to place them out of the knowledge and beyond the reach of the remainderman. Does the mere act of carrying them out of the State and selling them entitle the remainderman to redress against the particular tenant? The sale even of the absolute property does not displace the remainder, and the person entitled to it may, upon the falling in of the particular estate, recover the negroes themselves. We will not lay it (538) down that the remainderman may not have an immediate action on the case at law, or be relieved in equity, as upon an injury to his rights as a remainderman by reason of the destruction of the property of which he is entitled to the remainder. But without pursuing that idea so as to ascertain in detail the different remedies and their extent in such a case, it may be safely laid down that it is not in law or in equity an injury by the particular tenant to the remainderman simply to remove slaves to another State, or thus to remove them and sell nothing more than his own interests in them; for if the remainderman knows the slaves and where they are, he has, against the purchaser, by way of securing his enjoyment of the slaves when his estate comes into possession, a right to the same remedy he had here against the particular tenant, and it must be supposed that he will there get due redress according to his right. If, indeed, the remainderman sees that the particular tenant is about to remove the slaves out of this State, he may anticipate that purpose, and upon his application the court will restrain the execution of the purpose and secure the forthcoming of the property. But when the remainderman lies by, and the other party does nothing more than part from his right to a person in another State, it is not seen that the remainderman has any cause of action therefor against the former tenant of the particular estate, or any ground for requiring him in equity to be responsible for the production of slaves over which he has no longer a control, and which the law did not prohibit him from alienating. It is plain, therefore, that after a sale by a particular tenant the right to redress against him in either court depends upon the intention to injure the remainderman by the sale, and upon an injury to him resulting in fact therefrom. Now, that cannot be assumed when it (539) does not appear that the slaves, though in another State, are not known to the remainderman, and as accessible to him as they were here before the sale. Here the bill states only that a few days before the suit commenced the defendant sold the negroes beyond the limits of this State; and it does not allege that the plaintiff did not know where they were, and could not trace them and have adequate remedy there by having their production duly secured; nor does it seek any discovery of the defendant's vendee, nor state any reason whatever for not following the property. Therefore, as the defendant was entitled to the interest sold by him, the court cannot hold that he had not a right to make the sale, though to a person out of the State, and that it was a fraud in him so to do; since the plaintiff neither charges nor proves that the slaves were thereby placed beyond his knowledge or reach, or that he has been otherwise defrauded or in fact injured in the premises. For these reasons the decree must be reversed and the bill

PER CURIAM. Dismissed with costs.

Cited: Haughton v. Benbury, 55 N.C. 341; Isler v. Isler, 88 N.C. 579.

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