Rainey v. Rainey

35 Ala. 282 | Ala. | 1859

STONE, J.

In this case, the complainant waived a sworn answer, and the defendant put in his answer without affidavit of its truth. In such case, the answer cannot be regarded as evidence, on a motion to dissolve the injunction. — Griffin v. State Bank, 17 Ala. 258. This case, then, must be considered and disposed of on the equities as disclosed by the averments of the bill, without regarding the answer save in the light of pleading.

[2.] If the averments of the bill be true, the slave Joe was purchased by Mrs. Rainey after the woman’s laws of this State became operative; and consequently, Joe is her separate estate by operation of law, and Dr. Rainey, her husband, is her trustee as to the slave Joe. Mr. Olds, he brother and trustee, has no title to Joe, and cannot, under the averments of her bill, defend his possession. — See' Code, § § 1983, 1986, 1993. Under sections 1994-96 of the Code, the bill, as to the slave Joe, contains equity, and authorized an injunction. — Whitman v. Abernathy, 33 Ala. 154.

[3.] As to the other slaves, the equity of complainant’s bill must rest on the construction of the deed of William W. Olds, bearing date Nov. 6th 1847, under which she claims. That deed vests the legal title of the slaves in John J.. Olds, in trust “to manage said slaves, with then-future increase, for the sole and separate use of the said Sarah Ann.” The word manage doubtless confers on the trustee more than a naked, or dry trust. . He has, under the deed, unless Ur. Eainey has a paramount title, the legal right to the custody and management of said slaves, and can defend his possession at law. The further trust or discretion conferred on the trustee, in the language that, “ if it will conduce more to the comfort of the said Sarah Ann for said slaves and their increase to serve about the house of the said Dr. William W. Eainey, orto work on his farm or plantation, they are to serve and be employed, and while so employed or engaged, the said John J. Olds shall not be required to superintend the management of said slaves,” was intended to relieve him from responsibility — not to impair his right, at pleasure, to resume the possession and management; unless, perhaps, Mrs. Eainey, the beneficiary, were complaining of his abuse of the trust confided to him. — See Roper v. Roper, 29 Ala. 247. It evidently confers no powers upon Dr. Eainey. As to these slaves, the bill as framed is without equity.

The decree of the chancellor is reversed as to the slave Joe, and as to him, the injunction is reinstated. Let the costs of this appeal be paid equally by the appellee and by the appellant’s next friend.

In other respects the decree of the chancellor is affirmed.