Opinion
(December Term, 1840.)
1. A grantor by a deed, dated in 1833, conveyed a certain slave to her son-in-law, B., and his wife, T., till her granddaughters M. and S. attained the full age of 21 years or married; and if B. died before the expiration of that period, leaving his wife, then the right to vest in her until the age of 21 years or the marriage of M. and S.; if the said T. died before her husband, then the whole property to vest in the said M. and S., to be equally divided between them as tenants in common, and from and after the full age of 21 years or the marriage of the said M., then the one-half of the said property to be equally divided and delivered to the said M., her heirs, etc., and after the full age of 21 years or marriage of S. the other half of said property to be divided and delivered to her, her heirs, etc.; and if either M. or S. should die without leaving lawful issue, the property to go to the survivor; and if both die without leaving lawful issue, then to return to the grantor: Held by the Court, that as the limitations in the deed, by force of the act of Assembly (Rev. Stat., ch. 37, sec. 22), must be construed as an executory devise in a last will would be, the granddaughter M., on her marriage, became a tenant in common with the son-in-law, B., though the other granddaughter, S., was still under age and unmarried.
2. One tenant in common of a chattel cannot maintain detinue for such chattel against his cotenant.
DETINUE, to recover a negro man named Toby, tried at Fall Term, 1840, of BEAUFORT, before Dick, J. The facts of the case as agreed on by the parties were as follows:
No counsel for plaintiff.
Badger for defendant.
One Sarah Winburn, on 15 October, 1833, conveyed the negro Toby, among other slaves, to one Nathan Brown and his wife, Temperance, and to Mary F. Wilkins and Sarah J. Wilkins, for the purposes set forth in the said deed, a copy of which is hereto attached and made a part of this case. It was admitted that Nathan Brown sold and conveyed the said negro Toby to the plaintiff in this action. It was further admitted that the defendant intermarried with Mary F. Wilkins, before she arrived at 21 years of age; that after the defendant's marriage as aforesaid he got the negro Toby into his possession, and had him (272) in his possession at the time this action was brought. It was further admitted that Sarah J. Wilkins was under 21 years of age and unmarried at the time this action was brought, and that she has since married; and that Nathan Brown and his wife, and Mary F. Latham and Sarah Jane are all now living. The plaintiff in this suit claimed the absolute property in the negro Toby under his purchase from Brown, as before stated.
The deed referred to from Sarah Winburn is in these words:
"Know all men by these presents, that I, Sarah Winburn, of the county of Martin and State of North Carolina, for the natural love and affection which I have and do bear for and towards my daughter, Temperance Brown, and my two granddaughters (namely), Mary Frances Wilkins and Sarah Jane Wilkins, and for their better maintenance and preferment in life, and also for and in consideration of the sum of 10 shillings to me in hand paid before the execution of these presents by said Mary Frances Wilkins and Sarah Jane Wilkins, the receipt whereof I do hereby acknowledge, have given, granted, bargained and sold, aliened and confirmed, and by these presents do give, grant, bargain, sell, alien and confirm unto Nathan Brown and his wife, Temperance, until the full age of 21 years or the marriage of said Mary Frances Wilkins and Sarah Jane Wilkins, children of James Wilkins, deceased, and my grandchildren, whichever may first happen; but if the said Nathan Brown shall die before his said wife, Temperance, and during their being unmarried or under 21 years of age, that his right therein shall cease and the same shall be vested in the said Temperance until the full age of 21 years or the marriage of said Mary Frances Wilkins and Sarah Jane Wilkins; but if the said Temperance shall die before said Nathan, then the whole property and estate shall vest in the said Mary Frances Wilkins and Sarah Jane Wilkins, their heirs and assigns, to be equally divided between them as tenants in common; and from and after the full age of 21 years or the marriage of the said Mary Frances Wilkins, (273) then the one-half of the said property and estate to be equally divided and delivered unto the said Mary Frances Wilkins, her heirs and assigns forever; and from and after the full age or marriage of said Sarah Jane Wilkins, then the other half of the said estate or property to be divided and delivered unto the said Sarah Jane Wilkins, her heirs and assigns forever; and if either of my said grandchildren shall die without leaving lawful issue of her body living at the time of her death, then and in that case the part or share of her so dying shall go to be vested in the surviving granddaughter, her heirs and assigns forever. In case the survivor of them shall die without leaving lawful issue of her body at the time of her death, then the whole of said property given her herein and accrued to her by survivorship shall be vested in and go to me, the grantor, and to my heirs and assigns, the following property, both real and personal, to wit: a certain tract or parcel of land lying and being in the county of Martin and State of North Carolina, described in a deed, etc. [Her the land is described.] Also the following negro slaves, towit: [naming the slaves], to have and to hold the said land and slaves, with all the improvements and appurtenances to the said land belonging, in manner before mentioned. And it is understood and agreed between the said grantor Sarah and the said Nathan Brown, that the said Nathan, during his term in said property, is bound to school and clothe the said Mary Frances Wilkins and Sarah Jane Wilkins, at his own expense, to the value of the profits of said property, but subject to no account for the profits or use and occupation of the same during said time unto any one whatever, nor for his failure to so school and clothe them; but he shall be liable to account for the profits, use, and occupation of the property after the respective age of 21 years or the marriage of said two granddaughters or children of said grantor. In witness whereof the said grantor hath hereunto set her hand and seal, this 15 October, 1833. SARAH WINBURN. [SEAL]
Witness: MATTHEW SHAW.
The jury rendered a verdict for the plaintiff, and found the value of the negro Toby to be $1,000, and assessed damages for the detention up to the time of trial at $350, subject to the opinion of the (274) court whether the plaintiff could maintain this action. The court being of opinion that the plaintiff could not recover, ordered the above verdict to be set aside and a nonsuit entered; from which judgment the plaintiff prayed for and obtained an appeal to the Supreme Court.
If the limitations in a deed of slaves were contained in a last will, and would be good as an executory devise, they shall be good and effectual in the deed as a remainder. Rev. Stat., ch. 37, sec. 22. The plaintiff had but the interest of Brown in the slave under the deed of Sarah Winburn. To ascertain what that interest was, it may be necessary to divide the deed into five branches: First, The settler, by the deed, gave the slave to her son-in-law Brown and wife, Temperance, until the full age or marriage of Mary and Sarah Wilkins, which may first happen. Secondly, But if Brown shall die before his wife and "during their being unmarried or under 21 years of age," then the right shall vest in the wife of Brown, until the full age of 21 years or the marriage of Mary and Sarah Wilkins. Thirdly, But if the wife should die before her husband, then the whole property shall vest in the said Mary and Sarah Wilkins, their heirs and assigns, to be equally divided between them as tenants in common. Fourthly, "And from and after the full age of 21 years or the marriage of Mary F. Wilkins, then the one-half of the said property and estate to be equally divided and delivered to her and her heirs forever." As to the other moiety, it is given to Sarah J. Wilkins in the same terms. Fifthly, Brown is made liable to account for the profits of the estate only "after the respective age of 21 years or the marriage" of the granddaughters of the settler.
The plaintiff contends that Brown was entitled to the exclusive interest in the slave until Mary and Sarah both married, or both should arrive to the age of 21 years, or one should marry and the other (275) should arrive to the age of 21 years. Both of the girls had not married at the date of the writ. Sarah then was single and under age.
From reading the whole deed, and particularly the fourth and fifth branches of it, the intention of the settler seems to be apparent, that on the event of either of her granddaughters marrying or arriving at age, one-half of the property should immediately vest in such granddaughter. The estate was not intended to remain in Brown and wife until both the girls married. The grantor was making a provision for each of the girls, to take effect at such time as they or either of them might reasonably want it. We are of opinion that, at the date of the writ, the defendant was tenant in common of the slave with the plaintiff. One tenant in common cannot maintain detinue against his cotenant to recover the possession of the chattel so held in common. Campbell v. Campbell, 6 N.C. 65; Lucas v. Wasson, 14 N.C. 398.
PER CURIAM. Affirmed.
Cited: Grim v. Wicker, 80 N.C. 344; Strauss v. Crawford, 89 N.C. 150.
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