Lockhart v. Cameron

29 Ala. 355 | Ala. | 1856

STONE, J.

1. Chancery will reform written instruments “only when there is a plain mistake, clearly made out by satisfactory proofs.”- — 1 Story’s Equity Jur. §§ 155, 157. The .proof, if uncertain, will be held insufficient. — Henkle v. Royal Exchange Assurance Co., 1 Vesey, Sr., 317; 1 Story’s Equity, §§ 136, 153, 155. See, also, cases referred to on brief of appellees. The complainants have failed to prove the alleged mistake, by that “certain, clear, and satisfactory” proof, which will justify us in reforming the deed. ' The bill alleges that it was the intention of the grantor to convey the slave to Nancy C.,- “for the sole and separate use and behoof of herself, and of any children she might have, so that said slave should not.be subject to any rights, debts, or engagements of any husband whom, she might marry; and at her death, should be the property of her children.” The testimony of Simeon Clay, the only wdtness who speaks to this point, is contradictory and confused, j'j In one place, he says that his intention was “to bind the property to said Nancy C. Clay and her children forever; never intended the said girl Louisa to be subject to any man’s debts, at all; was his intention and desire, that said Louisa and her children should go to said Nancy’s children at her death.” In another place, he uses this language : “I had given this girl Louisa to Nancy and her heirs.” In.a third place, he employs the language: “My intention was to entail the property on my daughter and her children.” Lastly, he says, “I had made the deed to Nancy, and considered the girl her property.” No chancellor could determine what were the real and exact intentions of the grantor. — Rumbly v. Stainton, 24 Ala. 712.

2. If there were no irreconcilable conflicts in the testimony, still we would feel bound to dismiss the bill, so far as this aspect of it is concerned, because of the variance between the allegations and the proof. — Crabb v. Thomas, 25 Ala. 212.

3. The bill in this case is framed in a double aspect. It alleges, in effect, that the slave Louisa was delivered to, and received by Cameron,' as the sole and separate property of the wife and her children, and at her death to her children. It further alleges, in effect, that Cameron always, during the coverture, held the property in trust for the wife, and that he did not claim the property in his own right, or exercise his marital rights over it. The testimony substantially establishes .this aspect of the bill, except that it proves the understanding to be, that the property should belong exclusively to Mrs. Cameron during life, and at ber death to her children.

It is conceded that a valid oral gift of personal property may be made, to the sole and separate use of a married woman. — Betts v. Betts, 18 Ala. 781; Crabb v. Thomas, 25 Ala. 212; Jennings v. Blocker, ib. 415. But there are two fatal objections to this aspect of the bill: first, the variance between the allegations and the proof; and, secondly, Mr. Clay, by his deed of gift, had parted with all interest in the slave Louisa, as early as 1824, and hence had no power to give a different direction to the property, at the time of the marriage in 1828. — Crabb v. Thomas, supra.

4. It is contended that the testimony in this case shows that Cameron never asserted his marital rights over the slaves during the coverture; that he always disclaimed the ownership, and admitted they belonged exclusively to his wife, Nancy; that before and after the death of Mrs. Cameron, he admitted they belonged to Mrs. Lockhart, in remainder. These admissions must be presumed to have been made in ignorance of his rights. They were doubtless predicated on an erroneous construction of the deed of gift. They do not confer any title on Mrs. Lockhart, the daughter. They are ineffectual as a gift, because unaccompanied by any delivery. Neither do the admissions, made after the marriage, vest any title in Nancy Cameron, the wife. — Machem v. Machem, 15 Ala. 373.

5. But when the husband receives the property as the separate property of the wife; holds it openly and avowedly in the same right during the continuance of the coverture, and never, until after her death, attempts to assert his marital rights — his right to the property never does attach, because he never reduced it to possession as husband. It does not vary the case, though he may all the time have acted in ignorance of his right to assume dominion over it. The inquiry in every such case is, not whether the husband had the right to reduce the property to possession ashusband, but whether he actually reduced it to possession in that capacity. — Betts v. Betts, supra; Machem v. Machem, 28 Ala.

6. This principle can not help the present case. If Mrs, Lockhart has any rights, they descend to her as next of kin and distributee of Mrs. Cameron, her mother. She can receive them-only through administration on her mother’s estate.

Whether in this case, the claim of the Swilleys, or of the administrator of Cameron, will prevail over the rights of the administrator of Mrs. Cameron, we need not now inquire. See Crabb v. Thomas, supra.

The decree of the chancellor is affirmed.