58 N.C. 332 | N.C. | 1860
William Kee made his will and died in 1829, bequeathing thereby to his wife, Anna Kee, during her life or widowhood, among other things, a negro girl Sarah, and upon the death or marriage of the said Anna he gives the girl Sarah and her increase to his "daughter, Sally Hart, and her heirs forever."
Sally Hart, during the lifetime of Anna Kee, intermarried with one Wyatt Brantly, having first made a marriage settlement, dated 29 March, 1829, of which the following extract only is necessary to the proper understanding of the case:
"The said Sarah, for and in consideration of the premises, does hereby grant, bargain, and convey unto John W. Dupree, . . . as trustee, all the estate or property which she now possesses, upon the following trust, to wit, that the said Wyatt and Sarah are to enjoy the *265 profits arising from the said estate, and to have the use thereof during the lifetime of the said Sarah, and at her death, she, the said Sarah, may dispose of the same in such way as she may think proper, either by will or deed of gift or other instrument of writing."
Anna Kee died about 1834, and immediately thereafter the slave Sarah and her child, Cassandra, went into the possession of Wyatt Brantly, where they remained up to the time of his death, which took place in 1842. Shortly before his death (in September, 1842) he conveyed some land and the growing crop, plantation tools, cattle, horses, hogs, furniture, etc., and the following slaves: Sarah, Ben, Anthony, Joe, Carter, Tom, and Cassandra, to one Benjamin D. Tillar, his heirs, etc., in trust to pay the debts of the said Wyatt, and then for the use and occupation of his wife Sarah during her life, and after her death to his sons William and John. This deed was acknowledged in open court by both Brantly and Tillar and ordered to be recorded.
Tillar acted as trustee for a short time, and in January, 1843, (334) an application was made to the court of chancery of Greensville County, in the State of Virginia, wherein the parties resided, by petition of the creditors of Wyatt Brantly, setting forth the appointment of Benjamin D. Tillar as trustee, and that he had sold some of the property, but that he refused to proceed further in the execution of the trust, and was anxious to be rid of it, and praying that another trustee might be appointed. Service of this petition was made on Sarah Brantly, William Brantly, and John Brantly, who all answered and professed to be satisfied with the proposed change, and thereupon a decree passed appointing George Kee trustee in place of Benjamin D. Tillar, and the said George gave bond with two sureties, payable to the court, reciting his appointment as trustee and conditioned "well and truly to perform the duties of trustee as aforesaid."
George Kee, the newly appointed trustee, took possession of the slaves immediately after his appointment and brought them to the county of Northampton, in this State, and retained possession of them until his death, which occurred in 1856.
In March, 1843, Sarah Brantly, for the consideration of natural love and affection, conveyed to the said George Kee the whole of her property, including the woman Sarah and her daughter Cassandra and the other slaves in controversy, descendants of these two, reserving to herself a life estate in the property.
Afterwards, on 14 September, 1844, the said Sarah, reciting a consideration of $1,000 paid by George Kee, conveyed to him by deed of that date her life estate in the slaves reserved in the deed of 1843.
After the death of George Kee, his next of kin had a division, by order of court, of these slaves as a part of the estate of George Kee, and *266 those in question in this suit (Cassandra and her two children, descendants of the woman Sarah) were assigned to the defendant as one of the next of kin, and the bill alleges that he is about to remove the (335) same to the State of Tennessee, where he resides, claiming the absolute right to them.
The bill alleges that the plaintiff William is entitled to the entire interest in remainder, for that his brother John, to whom it was jointly limited, is dead, without leaving any child or children; also, that Sarah Brantly, the original donee, is still alive, and that before her death the plaintiff's right to enjoy the property does not arise, but in order that the same may be preserved and protected until the happening of that event, he prays for a writ of sequestration, etc.
The facts set out in the defendant's answer are substantially as stated above, except that it is not admitted that John Brantly was dead at the beginning of this suit, and it is urged that, being a necessary party, the bill in its present shape cannot be sustained. And it is denied that the defendant ever declared an intention to remove the slaves in question to the State of Tennessee or beyond the jurisdiction of the court. The defendant insists, however, that by a proper construction of the deeds above set forth, and by the division of his father's estate, he is entitled to the property in absolute right, and he admits that his residence is in the State of Tennessee.
A question arose between the parties as to the meaning of the conveyance to Dupree. It was insisted by the plaintiff that Mrs. Brantly did not intend to convey the slaves in question, as she only professes to convey the estate which she possessed, and that her mother being alive, she did not possess the slave Sarah. To this it was replied that Mrs. Anna Kee had, at the date of the deed, surrendered her life estate, and the slaves were in the possession of Mrs. Brantly when the deed was made. Testimony was taken as to this fact, but, according to the view of the court, the point becomes immaterial.
The order was made by the judge at chambers for the issuing of the writ of sequestration, and the same was returned by the sheriff with bonds taken for the forthcoming of the property at the death of Sarah Brantly.
The cause in this state was removed, by consent of parties, to this Court, and was heard on a motion to dissolve the sequestration (336) and dismiss the bill. The plaintiff alleges that he is entitled to certain slaves, subject to the life estate of Sarah Brantly, and that the *267 defendant, who has acquired the life estate under pretense that he is entitled to the absolute estate in three of the slaves, is about to carry them to the State of Tennessee, where he resides. The object of the bill is to have the slaves sequestered, so as to have them forthcoming at the death of Sarah Brantly.
We are not satisfied by the proofs that John Brantly, who the plaintiff admits was a tenant in common with him, is dead without children, but we are satisfied that he has left the State and gone to parts unknown; and for this reason, we are of opinion that the bill, which does not seek a final adjudication of the rights of the parties, but only to have the property secured, can be maintained by the plaintiff, and that John Brantly is not a necessary party. In Brown v. Wilson,
Where there is a reasonable ground of apprehension, the bill will be maintained, unless it appears that the defendant is entitled to the absolute estate. The defendant denies that he ever announced a purpose to carry the slaves out of the State, but he claims them absolutely; and as he lives in Tennessee, and these slaves have been allotted to him in the division of his father's estate, we are satisfied there is a ground to apprehend that he will take them out of the jurisdiction of this Court. So the question turns upon the title to the slaves.
1. Did the slaves Sarah and Cassandra (from whom the others are descended) pass to Dupree under the marriage settlement executed by Sarah Brantly (then Sarah Kee)? The words are, "all (337) the estate or property which she now possesses." "Possess" is frequently used in the sense of "own," "entitled to"; and although the word "now," in connection with the fact that Mrs. Brantly's title was subject to a life estate, raises a doubt whether it was not intended to exclude the property to which she was only entitled in remainder; still the fact that there was no motive for not including in the settlement all the property or estate which she owned, inclines us to the conclusion that she did intend to convey all that she owned, inclines us to the conclusion "possesses" was used; so that point will be conceded to the defendant, and we will not enter into evidence as to whether the slaves had not been before that time put into her possession by her mother, the tenant for life, or whether, just before the date of the deed, they had been taken away from her.
2. There are three grounds upon which the defendant, who claims under George Kee, cannot be considered in this Court as the owner of the remainder in these slaves after the death of Mrs. Brantly: *268
(1) By the effect of the deed to Dupree and the marriage, Wyatt Brantly, upon the death of the tenant for life, was entitled to the slaves for the life of his wife. The effect of his deed to Tillar was to give Mrs. Brantly an estate in the slaves for her life, with a limitation over to his two sons. After his death, Mrs. Brantly elected to take under this deed and went into the enjoyment of a life estate. So the matter stands thus: Under the deed to Dupree, Brantly was entitled to the life estate and Mrs. Brantly to the remainder; under the deed to Tillar, Mrs. Brantly was entitled to the life estate and the children of Brantly to the remainder, thus effecting an exchange of the estate which was advantageous to Mrs. Brantly as she had no child. At all events, she so considered it, and after the incapacity of coverture was removed made her election, and it is against conscience and a well-established principle of equity for her or any one claiming under her, after the (338) enjoyment of the life estate derived from her husband, to attempt to set up her title to the remainder under the deed to Dupree, for thereby she would defraud Brantly's children either out of the life estate or of the remainder; and to prevent this, she must abide by her election to take the life estate and let them have the remainder.
(2) Mrs. Brantly was a party to the proceedings had in the court of chancery of Greensville County, Virginia, by which George Kee was substituted as trustee in the place of Tillar. The parties in that proceeding set up title under the deed to Tillar, and it is admitted and acted upon as a fact that Mrs. Brantly was entitled to an estate for life and William and John Kee to the remainder. So the case comes directly within the principle of Armfield v. Moore,
(3) George Kee, by his appointment as trustee in the place of Tillar, by the execution of a bond for the faithful performance of the duties of trustee, according to the provisions of the deed to Tillar and by taking the slaves into his possession, became invested with all the rights and duties of a trustee for Mrs. Brantly and for William and John Brantly, and when he acquired the adverse title of Mrs. Brantly under the deed to Dupree is presumed to have taken up this adverse title for the benefit of hiscestuis qui trust, William and John Brantly, upon the well-settled principle of equity that where a trustee purchases in an outstanding adverse title he is considered as doing so, not for his own, but for the benefit of his cestui qui trust; and the principle applies more strongly where the title is acquired, not by purchase for value, but as a mere volunteer, by his own act, and not by the act of law. The correctness of this principle, and its necessity in order to prevent one who has undertaken to protect the rights of others, and by his fiduciary relation has *269 had the means of knowing the condition of the title, from committing a fraud and betraying his trust, will strike every one's sense of justice without further explanation, and is too plain to require the citation of authorities. The principle is under certain circumstances acted on at law: Tenant for life makes a feoffment to A. for life, (339) remainder to B. in fee; the first feoffor releases to A.; it operates "by way of extinguishment" and inures as well to the benefit of B. as A. So a disseizor makes a feoffment to two; the disseizee releases to one of them; it inures to the benefit of both; taking under the same conveyance, they are privies in estate, and the act of one in getting in the outstanding right is presumed to be for the benefit of his fellow as well as himself.
Our case is a striking instance in illustration of the principle. As soon as Kee gets possession of the slaves he brings them into this State, and thereupon turns "traitor in the camp" and instigates one of his cestuisqui trust to attempt a fraud upon the others by setting up and conveying to him an outstanding adverse title to the remainder after her life estate. This is not simply a constructive fraud, but actual fraud and dishonesty. Can he, or a volunteer under him, ask to be considered, in a court of equity, as having by such means defeated the rights of his cestuis quitrust and become the owner of the absolute legal and beneficial estate?
The sequestration will be continued, to the end that the defendant may give a sufficient bond not to remove the slaves beyond the jurisdiction of this Court and to have them forthcoming at the termination of the life estate.
PER CURIAM. Decree accordingly.
Cited: Dunn v. Oettinger,
(340)