15 N.C. 172 | N.C. | 1833
In June 1828, this suit was commenced by original attachment which was returned by the sheriff levied on several of the slaves by name, that were mentioned in the deed; but he did not take them into possession, and left them with the persons who had hired them as hereafter stated. In 1829, Joel Williams, the trustee, was summoned as garnishee; and in his garnishment he stated, that immediately after the execution of the deed, he took the negroes into possession, and hired them out for 1828, and took bonds for the hire, which he still held, and again for 1829; that a daughter of the donor's brother Samuel (who had three other children, all living when the deed was executed), married the defendant, McKay; that no division of the slaves had been made, and that he did not know all the persons who were entitled, as the families were numerous, and there were conflicting claims, under assignments from some of the children of one of the donor's brothers; that he had never paid to the defendant anything on account of his wife's share, or done any act to recognize his right to that share; but that he held the whole property for the purpose of having it properly and effectually divided according to the trusts. And he submitted, whether the interest of the wife was subject to attachment for the debt of the husband.
His Honor, Judge Norwood, at Cumberland, on the Spring Circuit of 1832, refused to condemn either the notes or slaves, to the satisfaction of the plaintiff's debt, upon which he appealed.
The words of the act of 1777 (Rev., c. 115, sec. 25) (174) are "estate and effects." But from the nature of the jurisdiction of courts of law, they have been understood in a modified sense. In relation to specific property, attachment is analogous to execution; and in respect to choses, not in possession, it is substantially an action at law by the defendant in attachment. (Peace v.Jones,
Such an interest as a cestui que trust has under this deed, if a legal one, would certainly be subject to execution; for the law makes all rights to property in possession, which are known to it, liable to creditors, however detrimental to the debtor it may be to have it sold in that State, or however inconvenient to joint owners. It is a question in this case, whether the act of 1812 (Rev. c. 830) brings within the same rule, equitable interests held in conjunction with a great many other persons, entitled to unequal shares, and liable to account with each other, in respect of the property, and the profits? In Brown v.Graves,
But this case does not directly require the Court to say that a trust for two or more is in every case out of the act. The point therefore may be left undecided, though I cannot but say, that I have a strong impression as to the proper construction. This deed conveys the slaves in trust to be divided among the descendants of the donor's three deceased brothers, in the *146 proportions and after the manner, as if her brothers had died intestate, and the negroes had been of their estates respectively, and in the meantime to be hired out by the trustee, and the profits to be appropriated in like manner. Admit that ordinarily a cestui que trust having a joint interest with others, may call for a conveyance of so much of the legal estate, as is commensurate with the trust for him, so as to make him tenant in common with the trustee; yet the purposes of this trust forbid that. The legal estate would have been conveyed at once to the presentcestui que trust, if it had been intended that they should have it undivided. The trust was created to prevent that. The property (178) is in trust, to be divided. Division then is the object, and that could not be effected at law, especially as there may be deaths and infancy in the case, which would prevent a division by contract. Besides that, the very inconveniences we have been considering were in the way; for if legal interests had been given to these numerous donees, the share of each might be seized for his or her debt, whatever detriment it caused to the others. The nature of the trust then requires that the trustee should not convey the undivided legal estate to any one or all of the cestuis quetrust, but should after a division, made either by agreement or by decree, convey to each in severalty, the particular slaves allotted to them respectively. This is especially to be inferred from the manner in which the interests are given; not in any certain proportions expressed in the deed, but according to the statute of distributions, as if the slaves had come by succession from the brothers. This provision would probably make it necessary to take accounts of the estates of the brothers, and of advancements by them to their children, and almost render it impossible for the trustee to convey to each an undivided share of the legal title precisely corresponding with their portion of the trust. There could be no object in creating the trust but to keep the legal estate in one person, until a division could be made. Before a division the enjoyment of thecestuis que trust was not to be the ordinary one of having the possession, but that is to remain with the trustee, who is required to hire out the slaves. If the cestui que trust is not to have the possession of the thing by the express terms of the trust, it is conclusive that he cannot ask for the legal title from this trustee, because that would enable him to get the possession in spite of the others teeth. Until the division, one of the parties then cannot call for a conveyance; and by consequence, a purchaser at execution sale cannot divest the title of the trustee according to the statute. *147
I am also of opinion that the defendant has not, as husband, such an interest as can be taken in execution, or as could be recovered by him by suit. He has not reduced any part of the property into possession, so as to defeat the wife's (179) right of survivorship. It is not necessary to say how, for he has power over this interest, to dispose of it by contract. The inquiry is, what estate has he in it in the present state of the case, without any act done by him? It is not like the case of guardian and ward, where both the legal and equitable estate is in the female infant, and the guardian does not to any purpose hold against the ward, but is merely curator and holds for her. Here the trustee not only has the legal estate, but is bound to use it and does for the present use it, both against the husband and the wife. But if he did so against the husband alone, it would have the same effect in the case before us. The right of the wife is but an equitable chose in action, which the husband cannot recover without joining the wife, and which upon his death before recovery, would survive to her. The case does not indeed state whether the deed was made before or during coverture. If that make a difference, it must be taken against the plaintiff, who must show affirmatively every fact necessary to subject the property, because without that the defendant is not in Court. But I do not think the time material, because however it may be at law with respect to rights purely legal, this must be treated, even at law, as a court of equity treats the same subject as between the husband and wife, and the modern decisions conclusively establish, that the husband cannot recover an equitable interest of the wife, without uniting her with himself in the suit. This is the stronger here, if she be not entitled to a provision out of her equities; for that should make us more careful to preserve for her the right of survivorship. As the husband could not alone sue for this interest, it cannot be attached for his debt; and the judgment must be affirmed.
PER CURIAM. Judgment affirmed.
Cited: McKay v. Williams,
(180)