6 N.C. 309 | N.C. | 1818
STATE OF NORTH CAROLINA — Craven County.
This indenture made 25 February, 1799, between Wilson Blount and Anne, his wife, of the one part, and Edward Kean of the other part, witnesseth: that for and in consideration of the sum of £ 6,000, current money of the State aforesaid, to the said Wilson Blount and Anne, his wife, in hand paid, at or before the sealing and delivery of these presents, by the said Edward Kean, the receipt whereof they do hereby acknowledge, and thereof acquit the said Edward Kean, his heirs, executors and administrators, have granted, bargained, sold, aliened, conveyed, enfeoffed and confirmed, and by these presents do grant, bargain, sell, alien, convey, enfeoff and confirm, unto him, the said Edward Kean, his heirs and assigns forever, all that certain tract or parcel of land lying and being in Craven County, on the south side of Neuse River, being all that tract or parcel of land which was granted to John Lovick by patent bearing date 1 November, 1719, which lies to the eastward of a branch which runs into Bachelor's Creek, above the road which leads from New Bern to Kemp's Ferry, and on which Colonel Wilson had a mill, beginning, etc. Also, one other certain tract, etc., etc.: To have and to hold the said several tracts or parcels of land and premises hereby bargained and sold, or intended so to be, unto the said Edward Kean, his heirs and assigns forever, upon trust that the said Edward Kean, his executors, administrators or assigns, shall and will, at any time at the request (311) of John Haslin, Esq., of the colony of Demarara, in South America, or at the request of Catherine H. Haslin, in case she should survive the said John Haslin, Esq., or in case John and Catherine, H. Haslin, his wife, should die without making such request, then at the request of the executors or administrators of the survivor of them, by good and sufficient deeds, such as the counsel of the said John and Catherine, his wife, or the executors or administrators as aforesaid, shall advise, convey in fee simple to such person or persons qualified to acquire, hold and transfer lands and other real estate in the State of North Carolina, as the said John Haslin during his life, or Catherine H. Haslin after his death, in case she should survive, or the executors or administrators of the survivor of them, by writing signed in the presence of one or more credible witnesses, or by last will and testament duly executed, shall direct, limit or appoint. And the said Wilson Blount and Anne, his wife, do hereby covenant with the said Edward Kean, etc., to warrant *225 the said land unto the said Edward, his heirs, etc., from the claim of all manner of persons, etc. In witness whereof, etc.
WILSON BLOUNT. (SEAL.) ANNE BLOUNT. (SEAL.)
Sealed and delivered in the presence of DANIEL CARTHEY.
On 5 April following, John Haslin executed the following instrument in the presence of one credible witness, viz.:
Whereas by a deed of bargain and sale bearing date 25 February, 1799, between Wilson Blount and Anne, his wife, of the one part, and Edward Kean of the other part, two several tracts of land containing about 800 acres, with the buildings and improvements thereon, lying in Craven County, on the south side of Neuse River and on Bachelor's Creek (all which will more fully appear by a reference to said deed), were (312) conveyed to the said Edward Kean and his heirs, upon trust to convey the same to such person or persons qualified to hold lands in the State of North Carolina as I, John Haslin, during my life, by any writing, signed in the presence of one or more credible witnesses, should appoint; and whereas I, the said John Haslin, intend shortly to undertake a voyage to the colony of Demarara, in South America, and am apprehensive of the dangers to which my life will be exposed in the said voyage: Now, therefore, know all men by these presents, that in consideration and in execution of the above power of appointment to be reserved to me, I, the said John Haslin, do hereby direct, limit and appoint that the land and premises above recited and referred to may and shall be conveyed, sold and aliened by the said Edward Kean, at his discretion, to any person or persons qualified to acquire, hold and transfer lands and other real estate in the State of North Carolina. In witness whereof I have hereunto set my hand and seal this 5 April, 1799. JOHN HASLIN. (SEAL.)
Signed, sealed and delivered in presence of WILL. WATSON.
John Haslin departed this life in March, 1804, and Edward Kean in August following, without either the said John Haslin or Edward Kean doing any other or further act in relation to the execution of the power of appointment created by the said deed of Wilson Blount and Anne, his wife. Catherine H. Haslin survived her husband, and by deed duly executed, *226 subsequent to the death of her husband, in the presence of two credible witnesses, directed and appointed the lands in the said deed mentioned to Wilson Blount, to be conveyed to herself; and she produced a record, duly authenticated, of her naturalization in due form of law, in a court of record of the United States.
(313) Upon these facts it was submitted to this court to decide, 1. Whether the deed of 5 April, 1799, is of itself such an execution of the power of appointment created by the deed of Wilson Blount and wife that on the death of the said John Haslin no power to appoint remained in his wife, who survived him. 2. Whether it be competent for the defendant to deny the ability of the complainant to hold land, notwithstanding the record of naturalization, by adducing proof that she had not such residence in the United States as entitled her to be naturalized; and that the facts set forth in the affidavit, upon which she was permitted to be naturalized, were not true. 3. Whether it be competent for either of the parties to give in evidence any other deed executed by John Haslin in this lifetime, or his last will and testament, having relation to the deed of 5 April, 1799, to prove the intention of the said John in said deed. The main question in this case is whether John Haslin, by the deed which he executed to Kean, completely and in due form executed his power. If he did, there is an end to the wife's power; if he did not, she was entitled to appoint. The present controversy is between volunteers, and the wife is entitled, unless there has been not only an intention to appoint, but an actual appointment, and that made in the precise form required by the power. This position is proved by many authorities. Dormer v. Thurland, 2 P. Wms., 506; Darlingtonv. Pulteney, Cowp., 260; Powell on Powers, 150, 163, and the cases there referred to. It is, then, necessary to inquire in what manner Blount, the donor of this power, declared it should be exercised, so as to defeat the right of the wife. He required that it should be by deed, executed in the presence of a witness or witnesses, and that by this deed Haslin, the husband, should limit and appoint to whom Kean should convey, provided (314) such person should be qualified to take, hold, and transfer lands in North Carolina. Has the husband appointed, andin the manner prescribed? Does his deed to Kean appoint towhom Kean shall convey? No; it authorizes Kean to convey to whom he pleases in his discretion. This is a confidence *227 which Blount did not confer on Kean, nor did he vest Haslin with a power to confer it. However, it is said that Haslin took a beneficial interest under the power; for as he might appoint whom he pleased, he could consequently have appointed himself. That will depend upon a fact which does not appear in this case, namely, whether he was qualified to take, hold and transfer lands in North Carolina. If he were qualified, then he has a beneficial interest; but it is indispensable for those who claim the execution of a power to show every circumstance necessary therefor.
But assuming it as a fact that the husband was qualified, and could appoint himself, and that, having a beneficial interest, he could delegate this power, has Kean exercised it? He has not. But then it is said that, having the legal estate, with Haslin's power, he might appoint himself. Does Haslin's deed say so? It only authorizes him to bargain, sell, alien and convey to any person in his discretion, who should be qualified to take, hold and transfer lands in North Carolina. In substance, the deed is that Haslin authorizes him to sell to any person, being, as the deed declares, about to take a voyage to South America, when, as the purchaser was to be looked for, it was not in the nature of things that Haslin could be present. And though Haslin declares in the deed that he transfers that authorityin execution of the power, it is only by reference to his power, and is tantamount to saying, "in virtue of his power." It seems impossible to collect from this deed an intention in Haslin to effect any other object than a bare substitution; there is nothing in it which even implies that he had surrendered or released to Kean the right of appointing, nor anything which prevented Haslin from revoking it the next moment. The substitute must, then, necessarily stand in the shoes (315) of his principal; and until he had bargained and sold the lands, as he was entrusted in his discretion to do, the power of the wife remained undefeated. To consider the deed as an execution of the power, and consequently as a destruction of the power limited to the wife, could only be by a far-fetched presumption, which we are not authorized to make in favor of a stranger and a pure volunteer; especially when by so doing we are defeating the wife, who was an object of the donor's bounty; we say donor's bounty, for if it was the husband's bounty, she has still a stronger claim. And according to the view of the case which we have taken, it seems clear that the release or other act of the husband, since the appointment either by himself or the substitute (if he had a right to delegate his power), could not defeat the power of the wife, though he might expressly *228 have declared it in extinction of the wife's power. In favor of purchasers courts of equity, on account of the consideration, will effectuate appointments wherever defective, and will consider as done what the parties have agreed to do. But it comes to the same thing at last, and is an appointment in equity.
The result of the whole seems to be that by this deed, if it operated at all, the power of the wife was placed at the mercy of Kean, instead of the husband; and that thereby he acquired the power, and nothing more, of defeating by his own act the claim of the wife, which he could not before; but that in both cases it required the exercise of this power. The consequence is that the wife, having become qualified to take, hold and transfer lands in North Carolina, and having appointed herself, the heirs of Kean, who hold the legal estate, must convey to her.
Many points were made in this case upon the difference in powers, and the effect of a release; but from the view we have taken of it this has become unnecessary to be examined, (316) considering the manifest intention of the deed to be only a substitution of power. But if it were necessary, we should say that those who claim an execution of the power must show it; they must, of course, show themselves qualified to be appointed. Aliens can take; so they can transfer, but they cannot hold lands; that, therefore, it does not appear the husband had any beneficial interest; if he had not, that it was then a mere personal confidence, which could not be delegated. And as to a release, it would have no effect, if the husband had no interest to give up. But if he had an interest, as the power of the wife was limited to her by the original donor, to be exercised in default of the appointment of the husband, both being strangers and upon an equal footing, the husband by release could only relinquish to the legal owner what he had; and that the only effect would be to lop off one power, in like manner as if it was spent by death. For Blount, who created both powers, and who, as the case appears, is to be considered the benefactor of both, has appointed Kean to hold the estate subject to the appointment of the wife, in default of any appointment by the husband. And as the release could only destroy what the husband had, as between volunteers, it gave Kean no ground in equity to oppose the wife's claim; for that must be founded either in regular title, according to the prescribed form, or upon moral obligation, which in equity dispenses with form. So long, therefore, as Kean continued to hold the lands, without any appointment being made by the husband, the power of the wife remained alive. *229
It is admitted that the execution of a power limited to a stranger is to be fairly construed; and this is what the books mean when they use the phrase, "liberally construed"; and that it is to be supported, if there appear an intention, and the manner employed is within the fair and liberal exposition of that prescribed by the donor. And had the husband clearly evinced such intention, by limiting in this deed that Kean should have, hold and enjoy the estate, or words to that effect, (317) such appointment would have been sufficiently formal, and enabled him to resist the wife's power. But according to the clear intent of the parties, he stood in no other condition than one with a general power of attorney to sell the lands to any person in his discretion, except such as could not hold them under the laws of North Carolina.
