41 N.C. 514 | N.C. | 1850
The bill was filed in March, 1847, by a married woman, by her next friend, against her husband and her brother Samuel H. Ratcliff. It states that in 1838 differences arose between the plaintiff and her husband for causes which obliged her, as she conceived, to separate from *358 him; and that she did so and put herself under the protection of her said brother, who undertook the office of her next friend, and to direct her and maintain and aid her in asserting her rights, and in that capacity he brought a suit in her name against her husband for alimony, and certain slaves of the husband were seized under an order in the (515) cause, and, in order to regain the possession of them, the husband was under the necessity of procuring a bond to be given for $4,000 for the production of them as the court might decree; that friends of the parties then interposed their good offices to arrange the differences and put an end to the controversy with as little expense and scandal as possible; and that, to that end, it was finally agreed between the parties that, in consideration of $200 paid to him by the brother on behalf of his sister, the plaintiff and the said Ratcliff would pay the costs of the suit for alimony and indemnify the husband against the debts and contracts of the plaintiff, while they should live separate, and also that the said bond for the production of the negroes should never be enforced; he, the husband, should convey three slaves, named Mary, Lewis, and Joe, to the sole and separate use of the plaintiff, so that she might possess and enjoy them free from the debts, disposition, or control of the husband; that on 22 May, 1838, in order to perpetuate the said agreement, and bind the parties to its performance, the defendant Ratcliff, with one McColl as his surety, executed a bond to the husband in a parol sum of $3,000, with a condition underwritten as follows: "The condition of this obligation is such that whereas a misunderstanding has taken place between the above mentioned Robert S. Huntly and his wife, Elizabeth, and they separated, and she took legal measures to procure from said Huntly a separate maintenance, and the sheriff seized certain negroes, etc., and took the bond of one Elijah Huntly for the delivery, etc.; and the friends of the said parties, being anxious that the said controversy should be settled with as little expense and delay as possible, and the parties agreed to settle all existing lawsuits on the following conditions, towit: The said Robert S. Huntly has agreed to give to his wife, Elizabeth, a negro woman by the name (516) of Mary and her two children, Lewis and Joe, of which negroes he agrees to awarrant and defend the title forever to her and her heirs, and that she may forever hereafter use, possess, and enjoy said negroes free from any contract or liabilities on his part; and the said James H. Ratcliff agrees, in behalf of his sister, the said Elizabeth, to pay to the said Robert S. Huntly $200 in cash in part consideration of said negroes, and to pay all such costs and expenses as may have accrued or shall accrue in consequence of any suit or suits of the said Elizabeth against the said Robert S., and that the bond given by Elijah Huntly to the sheriff of Anson for the delivery of the said negroes shall forever be *359 null and void, and that the said Robert S. shall never be liable for the debts and contracts of his wife, so long as she may live separate and apart from her husband: Now, if the said James H. Ratcliff shall shall well and truly perform all his part of this agreement, then the above bond to be null and void; otherwise, to remain in full force."
The bill further states that the husband accepted the money and bond, and that, in execution of his part of the agreement, he then delivered the three negros [negroes] to the said Ratcliff, as trustee for the plaintiff, whereby the said Ratcliff became possessed of the slaves in trust for the sole and separate use of the plaintiff, and bound to apply them to her benefit and account to her for their profits, and convey them according to her directions; and that he, Ratcliff, had them in his possesion [possession] ever since.
The bill further states that, in 1840, the plaintiff and her husband became reconciled and again lived together in harmony, and had done so ever since; and that from the period of the reconciliation the defendant Ratcliff had applied the profits of the slaves to his own use and refused to let the plaintiff have any benefit therefrom, and denied any right in her to the slaves. The prayer is that the slaves and their increase may be declared to be in equity the property of the plaintiff, and (517) that the defendant may be decreed to execute a proper declaration of trust for the sole and separate use of the plaintiff, or execute a conveyance to some fit person on such trust, and also account to her for the past profits.
The defendant demurred to the bill for want of equity and many other causes enumerated, and on argument the demurrer was sustained and the bill dismissed with costs, and the plaintiff appealed.
The effect of the transaction between these parties upon the legal title is not an open question; for, in an action of detinue brought by the husband for the slaves, after the reconciliation, the Court held the title at law passed to the brother as upon a sale and delivery. Huntley v.Ratcliff,
PER CURIAM. Decree reversed.
Cited: S. c.,