Opinion
(June Term, 1831.)
1. Upon a bill by children against the administrator of their father, charging that negroes had been advanced, upon the marriage to their mother, and vested in her husband, and that after the death of their father the negroes were claimed by the brothers and sisters of the mother, as having been a loan and not an advancement, there being no collusion between the administrator and the plaintiffs, and the former being in possession, and honestly defending his legal title, it was held that the court had jurisdiction to decree a distribution of the slaves by the administrator, but not to try the controversy between the latter and those claiming a legal title adversely to him.
2. Before the act of 1806 (Rev., ch. 701) if a father, upon the marriage of a child, put negroes into his possession, prima facie it is a gift and not a loan.
3. The children of a second husband cannot enforce distribution from the administrator of the first.
4. Because, if the share of the wife vested in her second husband, his administrator only can claim it; and if it survives to her, the children have no right to it.
5. A court of equity has a clear jurisdiction on the bill of the cestui que trust against the trustee.
6. But where a third person claims a legal title adversely to the trustee, a bill by the cestui que trust against the trustee and that third person drawing the question of title into litigation in equity, cannot be maintained.
7. It cannot be sustained as a bill of interpleader, because the plaintiffs are not in possession.
8. And it seems that the trustee cannot, to protect himself, draw the cestui que trust and a stranger into litigation.
9. Nor can one in possession under a legal title sue one out of possession, to have a pretended title of the latter declared void, unless upon some peculiar ground of equity jurisdiction.
THE bill was filed in CASWELL, in 1824, by the children of John Dameron and of William Gold, who were the first and second husbands of the defendant Mary Gold. It charged that upon his estate; and that upon the defendant Mary administered upon his estate; and that upon (18) the subsequent death of Gold, Richard Atkinson, who was since dead, administered on his estate; that Mary Gold had a number of slaves, or their increase, in her possession, which her father, Edward Clay, put, by way of advancement, into the possession of Dameron about 1800, upon his marriage. That the slaves were given to Dameron, and had ever since been held by him, or by his administratrix. The bill further charged that Edward Clay died in 1819, leaving a number of children, besides Mary Gold, all of whom, and his executor, were made defendants. It was alleged that no division of those negroes had ever been made between the widow and children of Dameron, but that lately the defendants Mary and her brothers and sisters denying the gift to Dameron, asserted a title in themselves, as derived by a subsequent gift from the father, Edward Clay, to them, in exclusion of the plaintiffs; and were about effecting a division among themselves, by petition filed in the county court, against Mary Gold for that purpose.
Nash for defendants.
Gaston for plaintiffs.
The prayer was for an injunction against further proceedings towards a division amongst the defendants; that they might be compelled to set out their title, in order to have it litigated and determined in this cause, and that the slaves might be declared a part of Dameron's estate, and be distributed accordingly amongst the plaintiffs and the defendant Mary, with the other parts of the estate, of which a general account was sought.
The bill was taken pro confesso against Mary Gold.
The executors and other children of Clay filed their answers, and denied the gift to Dameron, affirming that the negroes were expressly lent him by their father, who afterwards, and after the death of Dameron and Gold, disposed of them amongst all his children equally. They admitted that the slaves were all in the possession of Mary Gold, and averred that she asserted a title to them as administratrix of Dameron, by virtue of the gift to him; and that to enforce a division of those and other negroes given by their father to all his children, they had instituted the suit in the county court by petition. (19)
The cause was heard upon the proofs at June Term, 1830, when many depositions were read which rendered it very doubtful whether there was, in fact, a gift or a loan to Dameron. Under these circumstances an issue upon that question was directed.
This issue was tried in the last circuit, at Caswell, before SWAIN, J., who instructed the jury that where a father, immediately upon the marriage of his daughter, or shortly thereafter, sent home with her a slave, who continued in the possession of her husband for a great length of time, the law, before the passage of the act of 1806 (Rev., ch. 701) inferred that a gift of advancement to the child was intended by the father, and that the burden of proving there was no gift or advancement was upon the party who denied it. The jury found that the slaves were put into the possession of John and Mary Dameron as an advancement or gift, and not as a loan.
This Court finds no reason to be dissatisfied with the mode of conducting the trial or the opinions held by the judge of the Superior Court. They seem to be correct and conformable to the settled law. But supposing the verdict to stand, whether all of the plaintiffs or which of them are entitled to a decree, or whether any decree can be made against any of the defendants except Mary Gold, are questions of more consequence, and remain to be disposed of.
The children of Gold have no right or direct interest in this property as the estate of Dameron. It is a question whether the distributive share of their mother vested in their father upon the intermarriage, or survived to her, upon his death, before an account of Dameron's estate had been taken and distribution made. The Court does not mean to determine that question, and, indeed, could not do it, (20) since Gold's administrator is not before the Court. If, however, it did survive to the mother, those plaintiffs have no interest whatever in the fund. If it vested in the father, it came to his administrator, who alone can call for the estate, for there may be debts. When an administrator be bonis non shall be appointed, and gets the property there will be a trust for the children and widow, after creditors are satisfied. Under either aspect, the children of Gold cannot maintain this suit. And the bill must, therefore, as to them, be dismissed with costs, except as to the defendant Mary.
The children of Dameron can sustain this bill, as against the administratrix of their father, for an account and distribution. And as to the negroes in question, they are certainly, as between these parties, to be considered as those of Dameron. To that purpose, the verdict was not necessary. Mrs. Gold had confessed the right of the plaintiffs before. Indeed, I must suppose, from the proofs and the whole course of the proceedings, that she never contested it, and was made a defendant, not to try the right against herself so much as to bring a case into court in which the right might be tried against the other defendants.
But whether the right, as against those other defendants, can be tried in this manner is a very different and material question, and comes now to be considered. From their answer, which is supported by direct and divers proofs, it is clear that before and at the bringing of this suit the defendant Mary claimed the negroes for herself and her children, as the gift of her father to her husband, Dameron, and was in the exclusive possession under that claim. Indeed, the bill itself charges that the other defendants were then suing Mary Gold, to compel a division and delivery of them, and the answer of those defendants admits the fact. The case is, then, that of a trustee in possession, claiming to hold according to the trust, and a third party, out of possession, claiming by a different and distinct title, and denying the right, at law, (21) of the trustee. In such a case the cestui que trust has filed a bill against the trustee and the adverse claimants to have the conflicting legal titles litigated and determined here. Can such a bill be supported?
It may be here remarked that this question is not at all connected with nor does any consequence from the former orders tend to determine it. The issue was directed because there seemed to be great doubt upon the question of fact, which might be found against the plaintiffs. If so found, it would be decisive against them. It is true, the court did not then consider the effect of a finding the other way, as has happened. But that finding leaves the equity and question of jurisdiction open for a decision upon their proper principles. Supposing, then, the gift to be established, as far as a verdict on an issue out of chancery establishes anything, the inquiry recurs, Can this bill be sustained?
The Court is of opinion that it cannot. It cannot be made a bill of interpleader, for which it seems to have been designed. That is for the relief of a debtor, or of one in possession, who owes a duty to or is trustee for one of two, and does not know which. If either of these parties could have brought such a bill, it would be Mrs. Gold herself, against all the others; because she has the possession, and there are two claims. I should doubt, indeed, whether a trustee in possession, as such, could call the cestui que trust and a stranger into litigation, the latter not claiming by assignment from the former, nor any privity shown between them. Dungey v. Angrove, 2 Ves., Jr., 312. But a person in possession under a legal title, cannot sue a person out of possession, upon the ground of a pretended distinct title, and to have it declared invalid, unless there be a fraud imputed to it, or some other matter peculiarly within this jurisdiction. It certainly cannot be done upon the mere ground that the pretended title is bad, and his own preferable, as being prior or paramount. Those are pure questions of law, and the party in possession may well be content with the advantage that gives him. If this were not so, there never would have been such things as bills of discovery, or to perpetuate testimony, or to (22) examine witnesses de bene esse. The matter would have been drawn at once into this Court, to try the right and get relief, as attempted here, instead of getting aid to try in the proper legal forum. But it is said the plaintiffs are cestuis que trust, endeavoring to enforce the trust, and that creates the jurisdiction. By no means. It does, against the trustee. But as to third persons the possession of the trustee is that of the cestui que trust. If the legal estate out of which the trust arise becomes extinguished, the trust goes with it. While the former continues, the latter does also. To protect that estate, and to defend the legal title, is one of the objects of creating trusts. And the cestui que trust must rely on the trustee's doing his duty, or, in default of it, seek the appropriate remedy against the trustee in equity. Upon a suit at law against the trustee, or an adverse claim of the legal estate, the cestui que trust cannot, by bringing both the parties here, change the jurisdiction. If so, every estate once put into the trust, or that got into executors' hands, would be made to cease being a subject of legal litigation. If the trustee transfer the legal title, he is responsible in his own person and estate. If the transfer be accepted with notice of the trust, that is a fraud, and the estate remains subject to the trust. If the trustee remain in possession, and is sued by a stranger, if he collude, or even be insolvent and negligent, equity will permit the cestui que trust to use the trustee's name in defending at law, and coerce the trustee to lend his assistance. But in all those cases the jurisdiction is not changed as to the adverse claimant, but the legal title is still tried by the appropriate tribunal. If, indeed, a recovery had been permitted by collusion, and the possession changed, it stands on the footing of a conveyance in fraud, and with notice, and is within the cognizance of this Court. But here the possession remains with the trustee; the title is firmly asserted by the trustee; and the defense honestly and faithfully made by the trustee. The bill, it is true, charges collusion. But (23) it is not the allegation, but the fact, that enables equity to give relief, and the fact is clearly proved the other way. If the petition in the county court were not a harmless thing — if an adverse possession, under an adverse title, could be disturbed by a decree in it, supposing a court could be got to make such a decree (even if partition of personal chattels could at all be effected in that way) — yet there is no truth in the charge that Mary Gold assented thereto, and intended, collusively, to betray the interests of her children, with the care of which she stands charged. What would be the effect of this proceeding? By making all the defendants, by allegation, a unit in the claim against the plaintiffs, the declarations of the defendant Mary might be made to destroy the rights of the other defendants, although the claim, in point of fact, in opposition to each other.
Such a feigned allegation of collusion will not authorize the cestui que trust to make a stranger a party to his bill to enforce the trust, or distribute the trust fund in possession of the trustee. All that he can ask is to get the property, so that he can defend it himself. If the trustee wants an indemnity against the adverse claimants, it is time enough to consider whether any shall be decreed, and the extent of it, when asked for by the trustee. The cestui que trust cannot say to a stranger, "You shall try your legal title with me in equity, and not at law, with my trustee in possession." There is no such jurisdiction.
The verdict must, therefore, upon this ground, be set aside as to all the defendants except Mary Gold, each party paying their own costs of the trial at law; and as to the same defendants, the bill must be dismissed with costs in this Court.
As between the plaintiffs, who are the children of the intestate Dameron, and the defendant Mary, the slaves in question are declared to be a part of the estate of the said intestate, and an account ordered, if the plaintiffs should think proper to risk it and bring on the case again, without making the administrator of the intestate, Gold, a party.
PER CURIAM. Decree accordingly.
Cited: Green v. Harris, 25 N.C. 218; Nance v. Powell, 39 N.C. 303; Southerland v. Harper, 83 N.C. 204.
(24)