23 Ala. 609 | Ala. | 1853
Lead Opinion
When this case was last here, 5 Ala. 578, it was held, that the legal effect of the deed set out in the record was, to give Drury Woods but a life estate in the slaves conveyed by it, with a contingent remainder to the heirs of Polly Woods, which vested upon her death before the determination of the particular estate. It is unnecessary to inquire into the correctness of this decision upon the point which relates to the
If Drury Woods took but a life interest in the slaves, it follows necessarily that the decision was correct as to the interest conveyed by the deed to the heirs of Polly Woods. The rule of the English courts, that personal property cannot be limited by deed after an estate for life, has not been followed in relation to slaves in several of the States, (Horne v. Gartman, 1 Branch 63; Duke v. Dyches, 2 Strobh. Eq. 353; Robinson v. Schley, 6 Geo. 515; Greene v. Boone, 5 B. Monroe 554;) and was recognized as the law in this court in Catterlin v. Hardy, 10 Ala. 511, Gill v. Tittle, 14 Ala. 528; and at the present term of this court in the case of Mason v. Williamson, it was expressly decided that a contingent remainder may be created in slaves.
The only remaining question left open upon the record before us is, whether the sale made on the 27th March, 1826, to the defendant’s intestate, had the effect of destroying the remainder. What was said by the judge who delivered the opinion in this case in 5 Ala., supra, as it was not presented by the record, or necessary togthe decision of the case as then presented, must be regarded as dictum merely. It is certain that in remainders proper of real estate dependent upon a contingency, the disposition of the particular estate, to annihilate the remainder, must be of a character which destroys the former. Thus the particular estate in the tenant for tail, or for life, might be destroyed by a feoffment or line; for these conveyances gain a fee by disseizin, and leave no particular estate in ewe, or insight, to support the contingent remainder, (Archer’s ease, 1 Co. 66; Cliudlcigh’s case, 1 Co. 120, 137 b; Purifoy v. Rogers, 2 Len. 39; 4 Kent 253;) but a bargain and sale, or lease and release, could not bar a contingent remainder, for the reason that they passed no greater estate than the grantor might lawfully have conveyed.- — Fearne on Rem. 321; 4 Kent 255. Here the sale of the slaves was made by the party holding the life interest, and its effect was simply to convey to the purchaser the life in
The charge of the court below was in conflict with our views upon the last point, and for this error the judgment is reversed, and the cause remanded.
Concurrence Opinion
I concur in the conclusion above attained. The rule that a particular estate is requiredto support a contingent remainder is founded upon feudal reasons, which have no application to personal property, and no such estate is necessary to support such remainder in chattels.
