38 Ala. 115 | Ala. | 1861
We think the testimony of the witnesses ‘Reaves and McCreary .fully establishes the fact, that the •copy-deed attached to their depositions is a substantial •copy of the title to the slave Pickens, as the same was ex■ecuted by McCreary and wife -to Mrs. Williams. But we •do not concur with .the solicitor of appellee, in the opinion ■that, under that deed, -the title vested in Mr. Williams, the husband of appellant. Mrs. Williams was then a married woman; and the language of the -conveyance is, “We, .John McCreary, and Rebecca McCreary, his wife, abovesnamed, have relinquished, and do by these presents relin-quish to the .said Ruthy Williams, wife of William Williams, and her bodily heirs, to their exclusive use, benefit .and behoof, -all the right, title,” &c. The word exclusive is sufficient to exclude the marital rights .of Mr. Williams. Gould v. Hill, 18 Ala. 84.
We suppose the argument against the sufficiency of the language to exclude Mr. Williams’ marital rights, rests on the supposition, that the words “to their exclusive use’” .give the use and enjoyment of the property jointly to Mr, ,and Mrs. Williams. Such is not its import. The word tihevr refers to Mrs. Williams and her bodily heirs j and the
It does not- vary this- question* that the phrase, bodily heirs is- one of mere limitation. We arfe not inquiring whether any persons could claim this property- as purehasers, under that- designation. Wé are in: search of the meaning which the grantor attached to the language he employed ; and, however much he may have mistaken the legal import of his own language,^still he believed he was describing, a definite class of persons ; and when he added, that the slave was conveyed to their exclusive use”, his meaning was, that the slave shouldgo exclusively “ to Euthy Williams and her bodily heirs”. — See Johnson v. Johnson, 82 Ala. 642.
If it be objected that this defense was not insisted on in the answer, and therefore cannot be allowed, the answer is found in the fact, that the. equity of ■ this feature of complainant’s bill does .not rest ¡on the-separate estate created by the act of Mr. -Williams,, the .husband. It goes beyond that, as we have.-shown, and claims that the. property was secured against Mr.. .Williams’, marital.rights, by the terms of Mrs. Sunday’s gift. : Under these circumstances, even if the variance between the .-averments and.the proof do not defeat the present bill — a question we need not and do not decide — still the complainant,is in no. condition to invoke the-rnle of practice above • supposed. The complainant does not, in 'her bill, rely on the .title created by her bus«
-It being shown that', the'slave Pickens-never was the property ©f Mrs. Williams, it follows that the money for which he was sold was -not hers •; and hence' her- claim <of ¡the- slave Nancy has n© foundation to rest van.
Decree .of'.the. chancellor affirmed.