| Ala. | Jan 15, 1845
— The decision of the Circuit Court, sustaining the title of the claimant to the slave in controversy,
There is nothing upon the deed itself to induce the conclusion, that the husband either intended to convey, or supposed he was actually conveying, an estate in trust for the separate use of his wife. The deed recites, that a marriage had recently been solemnized, and that by it in right of his wife, he had been invested with a right to certain real and personal estates. Its object was, to settle these estates in a manner different from that in which the law had already disposed of them. In other words, he wished to make a marriage settlement, and to effect this purpose, he conveys his interest to a named trustee, who is thereby invested with the legal title, but subject to certain uses declared by the deed. Instead of retaining the absolute estate in himself, he declares it shall be a joint estate to himself and wife, with remainder to the survivor for life, and a further remainder in fee to the issue of the marriage. If the intention was to create a separate estate to the wife, or even an estate for their joint maintenance during their lives, it was as easy to have declared this intention as any other; but this was not the intention of the husband, as is evident from the first and second conditions imposed on the grant in which he stipulates, not only that he shall remain in possession of the estates, but that he shall receive and control the rents and profits. It would be strange indeed, as is remarked by this Court in Harkins v. Coulter, 2 Port., 463" court="Ala." date_filed="1835-06-15" href="https://app.midpage.ai/document/harkins-v-coalter-6529058?utm_source=webapp" opinion_id="6529058">2 Porter, 463, if such terms could be construed to mean, a separate estate in the wife.
We are aware that the Court of Appeals of Virginia in two cases, have held, that slaves settled to the joint use of the husband and wife during coverture, with remainder for life to the survivor cannot be reached by a creditor. [Scott v. Gibbon, 5 Mum. 86; Roanes v. Archer, 4 Leigh. 550.] But the first of these cases received a very slight consideration on this point, and the last is put upon the previous decision without any consideration whatever. We are all aware how firmly even an erroneous principle becomes fixed by decision, when it enters into the legal assurances of the property of a State. In
The other view of the case is settled by the decision at the last Term, in the ease of Nelson, Cafleton & Co. v. Banks, where a similar interest conveyed to a trustee for the use of a lady, who afterwards married, was held to be liable at law to an execution against the husband. I dissented, in that case from a majority of the Court, on the ground, that the wife had only an equitable estate in the slave, which would be protected in equity against an insolvent husband or his creditors; but I concurred very fully in the opinion, that if the estate could be subjected in equity, there was no reason why a creditor might not attain the same result at law. In this case, conceding the legal estate to be in the trustee, the creditor could, in a Court of Equity, subject it to his debts; therefore, I concur here, that such may be the result of a levy.
The consequence of what we have said is, the reversal of the judgment, and the remanding of the cause.