40 N.C. 413 | N.C. | 1848
The bill alleges that the defendant, in the county of Surry and State of Virginia, where he then resided, during the year 1818, executed a deed of gift to Nancy, one of the plaintiffs, who was his reputed daughter, by which he conveyed to her a negro woman, to take effect at the death of the defendant, which said deed was properly attested and delivered, and afterwards proven by the subscribing witnesses, and registered *288 in the said county of Surry; a copy is filed and prayed to be taken as part of the bill; that in 1825 the defendant removed to the county of Northampton in this State, where he now resides; that in 1842 the plaintiff Griffin intermarried with the other plaintiff, Nancy, and both reside in the said county of Northampton; that in 1843 the said (414) deed of gift was exhibited in the court of pleas and quarter sessions of Northampton County, and ordered to be certified and registered; and that the negro woman has now six children.
The bill further alleges that the defendant intends to remove to some of the western States, and to carry the negroes with him, and the plaintiffs fear, from the bad feeling which the defendant now has towards them, that if he is allowed to take the negroes out of the State he will so manage as to deprive them of the use and enjoyment of the property after his death.
The prayer is that the defendant may be enjoined from removing the negroes beyond the limits of this State, and that they may be secured so as to be forthcoming to abide the final decree.
The defendant, in his answer, admits that he did sign and seal a paper-writing in the presence of witnesses in the county of Surry, State of Virginia, purporting to be a gift of the negro woman to the plaintiff Nancy, after his death, and that the copy, made part of the bill, he believes to be correct. But he denies that the paper was ever delivered as his deed, and avers that the plaintiff Nancy was, in 1818, an infant, not over 4 or 5 years of age. He regarded her as his daughter, though not born in wedlock, and felt desirous to provide for her in case of his death, for which reason he had the paper-writing drawn, and signed and sealed it; but he stated to the subscribing witnesses that he did not intend to part with it, but would keep it in his possession, believing that if he should die it would be effectual to pass the title after his death; and he avers that he never did deliver the paper as his deed, or consent to part with the possession; that in 1825 he removed to Northampton County, in this State, bringing with him the plaintiff Nancy, who continued to reside with him until 1830, when she married one John Carstophen; that he had kept the said paper all the time in his possession, and (415) continued so to keep it until some time in 1832, when he had a severe spell of sickness, and during his sickness the said Carstophen procured access to his papers and purloined the said paper-writing and carried it to Virginia, without his knowledge or consent, and procured it to be registered in the county of Surry; that upon his recovery he instituted suit in Virginia against the said Carstophen to have the paper canceled, but, being outlawed for not appearing in that State to answer a charge for a misdemeanor, his suit was dismissed; and the said Carstophen having soon after fled the country and died in Alabama, *289 his suit was again instituted; that the said Nancy, after the death of her husband, came and lived with the defendant for some years, when she married the plaintiff Griffin, who in 1843 procured a copy of the said paper to be spread upon the register's book of Northampton County.
The answer admits the defendant intends to remove the negroes to the south, as he claims the entire estate.
The paper-writing filed as a part of the bill is a copy in the usual form of a deed of gift, in consideration of natural love and of $1. It appears, by an entry on the back of the copy, that the paper was proved in the county court of Surry County, State of Virginia, as the deed of the defendant, by the two subscribing witnesses, and ordered to be recorded in 1832. It appears from another entry that a copy of the said paper was exhibited in the county court of Northampton and ordered to be registered in 1843.
At Fall Term, 1848, upon the coming in of the answer, the defendant moved to remove the sequestration hitherto granted, which motion was refused, and the sequestration continued until the final hearing; and the defendant was allowed to appeal. It was held in McDaniel v. Stoker, ante, 274, that a motion to remove or discharge a sequestration does not stand upon the footing of a motion to dissolve an injunction, in the ordinary case of an injunction to stay execution upon a judgment at law. The court having secured the fund, will keep it secured pending the litigation, unless the application was improvidently granted, or unless, upon the coming in of the answer, it appears, taking the whole together, that the claim of the plaintiff is unfounded, or that the security was unnecessary. The security in this case was admittedly necessary; and the only question is whether the claim of the plaintiffs is unfounded.
The plaintiffs' title rests entirely upon the delivery of the alleged deed of gift. If it was not delivered, the plaintiffs have not title. The answer denies the delivery directly and positively, and the denial is accompanied with such a detail of circumstances as is well calculated to recommend it to belief.
The fact that the supposed donee was an infant of "very tender years," unfit to take charge of a valuable paper; that the paper was not registered for fourteen years, and the absence of any suggestion in the bill as to the person to whom the paper was delivered for the benefit of the infant, especially as the plaintiffs were notified from the bill filed in Virginia that the delivery was denied, and were thus apprised of the *290 necessity for stating all circumstances and putting all interrogatories calculated to support the allegation that a delivery had been made, or to extract an admission to that effect: these facts, combined, carry to the mind no slight confirmation of the truth of the denial by the defendant, and a very strong doubt of the truth of the allegation of the plaintiffs.
Another circumstance is that the plaintiffs do not allege that (417) they have the original deed of gift, so as to have it in their power to proceed with the trial of the feigned action necessary to obtain the relief prayed for; but proceed upon the idea that they are entitled to have the property tied up during the life of the defendant, without taking any steps to have their right adjudicated — contenting themselves with a general statement that the deed was properly attested and delivered, and registered in Virginia and in this State, and cautiously concealing the fact that the deed was procured to be registered in Virginia by the first husband of the plaintiff Nancy, and that they did not have theoriginal registered in this State, but caused to be registered a copy taken from the register's office in Virginia. This want of candor is in striking contrast with the open assertion of title by the defendant, and his frank admission of an intention to remove the property.
But the most conclusive circumstance is that the plaintiffs have not a legal title in the remainder, by their own showing; and, although a court of equity will not adjudicate upon a legal title, yet it will take notice of what is necessary to constitute a valid legal title, when its aid is asked for upon the ground of the legal title, and will require that the party should come forward with fairness and set out a title which, primafacie, is a good one.
There is no allegation that by the law of Virginia, where the deed was made, a limitation over by deed, after a life estate in slaves, is valid.
By the common law such a limitation of a chattel by deed is void, for the life estate consumes the entire interest. We presume the common law prevails in that State, until the contrary appears.
So that the plaintiffs do not show a prima facie valid title, and have not entitled themselves to ask the extraordinary aid of this Court.
The interlocutory order disallowing the motion to remove the (418) sequestration and continuing the sequestration until the hearing must be reversed, with costs in both courts.
PER CURIAM. Reversed.
Cited: Lloyd v. Heath,