Opinion
(June Term, 1857.)
Where a bill sets up a title in remainder to slaves, under a deed made in another State, there not being any allegation that the common law does not prevail in such State, the presumption is that it does prevail, and therefore, that there can be no limitation in remainder of personal property.
An answer filed to a bill after there has been a demurrer, or at the time of demurring, over-rules the demurrer as to such answering defendant; but if he be a merely formal party, against whom no relief is prayed, the cause will not be retained on his account, if the demurrer of the others were sufficient to overthrow the equity of the bill.
CAUSE removed from the Court of Equity of Orange County.
Phillips, for plaintiffs.
Graham, for defendants.
The bill alleges, that one James Brown of Virginia, gave to his daughter Stacy, wife of Reuben Carden, two slaves, Asa and Rebecca (or Becky) for life, remainder to her four daughters, to wit, Patsey, Sarah, Polly and Nancy. Patsey intermarried with one Harris Woods; Sarah intermarried with Benjamin Johnson; Polly with Person Chisenhall; and Nancy with James L. Brown, the plaintiff; that the two slaves were brought from the State of Virginia to the county of Orange by Carden and his wife; that they also brought with them a bill of sale from the said James Brown to Reuben Carden and wife, with a limitation over as above stated. The bill states that Carden and his wife retained possession of the slaves many years, until Becky was stolen from them by their daughter Patsey; that after several ineffectual attempts to get the negro Becky away by the said Patsey and Harris Woods, whom she afterwards married, the said Reuben Carden sold the slaves absolutely to one John Lockhart, who sold Rebecca and three of her children, to Calvin, alias Carter, Waller, of Granville county, who claims, not the life-estate only, but the absolute title, either from John Lockhart or from some one to whom John Lockhart has sold them, and he expresses a fear that the said Waller will run the slaves out of the State. The prayer is for a writ of sequestration and for general relief.
The defendant Carden filed an answer, and he and the other defendants, at the same term, filed a demurrer to the bill for the want of equity. There was a joinder in demurrer, and the cause being set down for argument, was sent to this Court.
It is very clear that the plaintiffs have not, by their bill, shown any title to the slaves, with respect to whom they seek relief. They claim under a bill of sale which they allege was executed in Virginia, by which the female slave, of whom the others are the children, was limited to the defendant Mrs. Carden for life, with remainder to her four daughters, of whom the feme plaintiff is one. There is no allegation that the common law, by which a limitation over, by deed, of personal property, after a life-estate, is void, does not prevail in that State. We must, therefore, presume that it does, and that, consequently, the plaintiffs have no title under the limitation. In support of this conclusion, the case of Griffin v. Carter, 5 Ire. Eq. Rep. 413, is a direct authority.
The only difficulty which the case presents arises from the state of the pleadings. All the defendants have joined in a demurrer, and at the same time one of them has filed an answer. The answer certainly overrules the demurrer as to the party who put it in; Cooper's Eq. Pl. 113, citing 3 P. Williams, 80, 2 Atk. 282; but we think it does not affect the demurrer as to the other defendants, for the reason that if several join in one demurrer to a bill, it may be good as to one defendant and bad as to the others. Cooper's Eq. Pl. 113; 8 Ves. jun. 403; Stor. Eq. Pl. sec. 443. In this respect a demurrer in Equity differs from one at Law. Stor. Eq. Pl. ubi supra. If the answering defendant, in the present case, were any other than a mere formal party, the result would be that, upon the demurrer upon which the cause is set down for argument, the bill would be dismissed as to all but him, leaving it to be decided as to him upon the hearing; but as he is a mere formal party, against whom no relief is prayed, it would be useless to retain the cause, and the bill must, therefore, be dismissed altogether. As the plaintiffs sue in forma pauperis, no costs are given.
PER CURIAM, Decree accordingly.