Opinion
(December Term, 1847.)
1. A. by deed conveyed to his grandchildren a number of articles of small value, such as "old iron, an old horse, two or three hogs, linen wheel," etc., and others, specifically enumerating and describing them, and then the deed says: "and all and every article of property which I own, whether enumerated or mentioned, is herein conveyed": Held, that none of the slaves which A. owned passed by this conveyance.
2. Where a deed of gift is fraudulent against creditors, and the property conveyed by it is sold under executions at the instance of the creditors, the surplus in the hands of the officer remaining after satisfying the executions belongs to the donees.
CAUSE removed from the Court of Equity of HALIFAX, at Spring Term, 1847, by consent of parties.
(50) Bragg for plaintiffs.
Badger and B. F. Moore for defendant.
The bill sets forth that Benjamin Kimball, in 1837, with a view to advancing in life certain of his grandchildren, who were the children of his daughter, the wife of William Sturdevant, one of the plaintiffs, conveyed to the said William, by deed, various articles of personal property in trust for his said children, and who are the above named plaintiffs. In said deed is the following clause: "All and every article of property which I own, whether enumerated or mentioned, is herein conveyed." The bill alleges that the donor, Benjamin Kimball, at that time owned a negro slave named Henry, who was then a runaway. Soon thereafter B. Kimball removed to the west, and Henry came in, and the plaintiff William Sturdevant took him in his possession and held him as guardian for his children. Benjamin Kimball removed (48) to the State of Tennessee and there died; and in 1842 the defendant William Avent was duly appointed his administrator. The bill then charges that, in 1839, an execution was issued from the county court of Halifax against Benjamin Kimball, and was levied on the negro Henry, and at the sale the plaintiff William Sturdevant purchased him, for and on account of his children, for a sum which, after discharging the execution, left, a balance of $482.35, which he claimed to hold for his children; but the sheriff insisted he should either pay it or give his note for it. The latter was done, with the understanding that the sheriff was not to collect it unless compelled. Upon the appointment of Avent as administrator of Benjamin Kimball, the sheriff was induced by him to put the note in suit for his own use, and, a judgment being obtained, the money was paid to the defendant by William Sturdevant.
The bill charges that the conveyance from Benjamin Kimball to the complainants was good and valid, except as to the creditors of the said Benjamin; that they were entitled to the surplus of the money for which the slave Henry was sold, after satisfying the execution, and that the defendant holds it as their trustee, and prays he may be decreed to account for and pay it over to their guardian. All the parties interested are before the court.
The defendant Avent admits the execution of the conveyance under which the plaintiffs claim the slave Henry, but denies that at that time his intestate had more than a life estate in him, or that Henry was included in the conveyance, or was intended to be. He alleges that Benjamin Kimball, in February, 1824, being about to enter into the marriage state a second time, with the knowledge and consent of his intended wife, conveyed a large portion of his estate to his children, reserving to himself a life estate therein. That among other conveyances was one to his son William D. Kimball of this negro Henry; that he retained possession of the property so conveyed, and of Henry, (49) who, being unwilling to remove with the intestate Benjamin, ran away from him a short time before his removal, and came in, in a short time thereafter, and went into the possession of the plaintiff William Sturdivant. He admits the execution, as stated in the bill, and the sale of Henry under it by the sheriff, and the purchase by the plaintiff William Sturdivant, the giving of the note, as stated, by him to the sheriff, but denies that to his knowledge there was any such agreement as alleged between them. He admits he has, by due process of law, recovered from the said William Sturdivant the amount of said note and received the money. The defendant further alleges that after he was appointed to administer the estate of the said Benjamin he brought an action against William Sturdivant and recovered the hires of the slave Henry from him for the time he was in his possession up to the death of his intestate. He also alleges that his intestate owned and had in his possession several negroes, whom he took with him to the west, and that the plaintiffs, under their construction of the conveyance, were as well entitled to all of the latter as to the slave Henry.
Replication was taken to the answer, depositions filed, and the case was set for hearing.
Among the exhibits filed by the parties in the case is the conveyance from Benjamin Kimball to the plaintiff William Sturdivant, in trust for his children, dated 8 May, 1837, under which the bill claims the decree of the court, and also a conveyance from Benjamin Kimball to his son William D. Kimball of a negro man by the name of Henry, together with a considerable amount in land and other negroes, dated 9 February, 1824. Both these deeds were voluntary conveyances. By the latter one Benjamin Kimball reserves to himself a life estate in all the property conveyed.
The testimony sufficiently proves that the negro Henry, claimed by the plaintiffs to have been conveyed to them in the deed of 1837, is the same Henry mentioned in that of 1824. Benjamin Kimball died in 1840, and this bill was filed in 1845.
The principle upon which the plaintiffs' claim rests is that by the deed of 1837 the slave Henry was conveyed to them by the clause, "and all and every article of property which I own, whether enumerated or mentioned, is herein conveyed"; that this deed, being voluntary, was void as to the creditors of Benjamin Kimball, but valid as to him and those representing him; that therefore the surplus in the sheriff's hands, and that now in hands of defendant Avent, was their property, and received by him as their trustee, and he is bound to account for it to them. The money would belong to them if, under the conveyance of 1837, the plaintiffs acquired any interest in Henry which was subsisting at the time the defendant Avent received the money. Taylor v. Williams, 23 N.C. 249; Jones v. Thomas, 26 N.C. 12. We are not prepared to say that by that deed the slave Henry was conveyed to the plaintiffs, or was intended to be. He is not named in the instrument, while a variety of the most minute and trifling articles are enumerated, as (among other things) a "parcel of old iron in the shop, an old horse, five wheel boxes, two large white hogs, a barrow, and a sow of my mark, a spotted sow of my mark uses about where William Sawlin's family lives, the two white hogs uses in the old field in the bend of the creek above the mill, and are shy," etc. Of the same character are the other articles enumerated. It is very difficult to conceive why the only property of any value, intended to be conveyed, should be omitted, when the donor is so very careful in designating the other property as to tell us that two of the hogs were shy, and where they ranged. In addition (51) to this, William Sturdivant, a witness for the plaintiff, tells us that the conveyance was made twelve or eighteen months before Benjamin Kimball left the State, and that, some time after its execution, he asked him why he had not named Henry in that deed; he answered, because he had before given him to him, William Sturdivant, for his children. This is strong evidence that although the words used in the deed might be sufficient to embrace Henry, yet that such was not the intention of the donor. There is no evidence of any gifts to the plaintiffs prior to the deed of 1837, nor do they, in their bill, allege there was.
If, however, it be conceded that under the deed of 1837 an interest in the slave Henry was conveyed to the plaintiffs, it becomes important to inquire its nature and extent.
Benjamin Kimball was the original owner of the slave, and a wealthy man. Being about to enter into a second marriage, and desirous to advance his children, with the knowledge and consent of the lady whom he was about to marry, he divided among them a large portion of his estate, both real and personal. To his son William D. Kimball he gave, by deed bearing date in February, 1824, the portion of his property intended for him, including this slave Henry, but reserved to himself a life estate in him as well as the rest of the property so conveyed. There can be no question that under the act of 1823, ch. 1211, Rev. St., ch. 37, sec. 22, the limitation to the son, after the life estate to the father, is good. It is enacted "that every limitation by deed or writing, of a slave, which limitation, if contained in a last will and testament, would be good and effectual as an executory devise or bequest, shall be and is hereby declared to be a good and effectual limitation in remainder of such slave, and any limitation made or reserved to the grantor, vendor, or donor, in any such deed or writing, shall be good and effectual in law," etc. If the gift we are considering had been contained in a last will and testament, it would have been good, as an executory (52) devise, and it is such gifts contained in a deed the act provides for. All legislative acts, by the common law, refer back to the first day of the session, without any reference to the actual time when passed, unless otherwise directed. In this State, by statute, all acts go into effect thirty days after the rise of the session at which they are passed, unless expressly otherwise directed. 1799, ch. 527, Rev. St., ch. 52, sec. 36. The session of the Legislature was closed on 28 December, 1823, and the act went into operation 28 January, 1824; and the deed from Benjamin Kimball to William D. Kimball was executed 9 February, 1824, after the act of 1823 had gone into operation, and that act gives full operation to the deed and sustains the interest both of the donor and donee. The life estate reserved to the donor was, then, a good reservation, and when he made the deed of 1837, under which the plaintiffs claim, if Henry was included, he conveyed to them, and could convey, no larger estate than he possessed, which was for his life. It is in evidence that Benjamin Kimball retained the possession of Henry until a short time before his removal, when, to avoid going with him, he ran away, but returned, and went into the possession of William Sturdivant, one of the plaintiffs, by agreement between him and Benjamin Kimball, and in whose possession he remained until October, 1839, when he was taken by the sheriff of Halifax and sold to satisfy an execution in his hands against Benjamin Kimball. William Sturdivant became the purchaser, at a price which paid off the execution and left a surplus of $482.35, for the payment of which he gave his note to the sheriff. The money due upon this note was subsequently, towit, between May and August, 1844, received by the defendant on an execution which issued for his benefit or that of the estate of Benjamin Kimball. The money did not belong to the plaintiffs, either in law or in equity, as they are volunteers under a deed subsequent to that to William D. (53) Kimball, who may recover the money from the defendant. To the plaintiff, Benjamin Kimball could, legally, convey nothing but an interest for his life, an interest which ceased with his life, and at the time the defendant received the money he had been dead nearly four years.
The plaintiffs are not entitled to the relief they seek, and the bill must be
PER CURIAM. Dismissed with costs.