Foscue vs Foscue ~ 1825
Where slaves were given by deed to A B and C D, to them, their heirs and
assigns forever, "immediately after the death of" the grantor, reserving the
use and profits of the slaves to the grantor during his natural life, and
after his death to the said A B and C D, it was held, that as there could not
be a limitation of a remainder in a personal chattel upon a precedent estate
for life by deed, that the deed operated nothing, but left the property in the
donor as it was before.
DETINUE to recover a negro slave Tom, and came on to be tried before Badger,
J., at CARTERET, when a verdict was given for "the plaintiff, subject to the
opinion of the court on a case stated and reserved; and if the opinion of the
court be for the plaintiff, then Judgment to be rendered for him; if for the
defendant, then the verdict to be set aside and a nonsuit entered. The case
reserved is as follows:
The negro slave belonged to Simon Foscue the elder, who died in possession of
the said slave, having first made and published his last will and testament,
of which he appointed the plaintiff executor. After testator's death the
plaintiff proved the will and took the negro into his possession; afterwards,
and before the bringing of this suit, the defendant obtained possession of the
slave, claiming under a deed executed by the testator in his lifetime, and
retained that possession up to the present time. The deed was in these words:
THIS INDENTURE, made this 20 April, 1809, between Simon Foscue, Sr., of the
county of Jones, North Carolina, of the one part, and Lewis Foscue and Sarah
Foscue, son and daughter of said Simon, of the other part, witnesseth: That
said Simon Foscue, for and in consideration of the natural love and affection
which he has and beareth unto the said Lewis and Sarah Foscue, also for their
better maintenance and preferment, have given, granted, conveyed, and con
Armed unto the said Lewis and Sarah Foscue the lands and negroes hereinafter
mentioned in manner and form following to wit: to Lewis Foscue two negroes,
named Martin and Tom, also one-half of that tract of land whereon I now live
on the upper part of said tract, reserving to my wife Betsy Foscue her dower
right during her life or widowhood; to, Sarah Foscue, four negroes, named
Nero, Charles, Peter and Lucy, which said lands and negroes above mentioned
the said Simon Foscue, Sr., doth hereby give, grant, alien, enfeoff, convey,
and confirm unto the said Lewis aaid Sarah Foscue, to them, their heirs and
assigns forever, immediately after the death of the said Simon Foscue, Sr.,
the said Simon reserving to himself the use and profits arising from the said
land and negroes aforesaid for and during his natural life, and after my death
unto the said Lewis and Sarah Foscue to them, their heirs and assigns forever.
In witness whereof, etc. SIMON FOSCUE, SR. [l. s.]
By the will this negro was bequeathed to one Stephen Foscue who before the
action brought, released to the plaintiff all his interest under the bequest.
Upon these facts the court below was of opinion that as by the terms of the
deed nothing was to vest in the defendant until the death of the donor, and as
by the policy of the law there could not be a his estate in a personal chattel
in one and a remainder limited thereon to another, therefore the deed operated
nothing, but left the property in the donor as it was before.
The defendant's counsel then moved to arrest the judgment for a variance
between the writ or leading process and the declaration, the writ being to
take the body of the defendant to answer - "Simon Foscue executor of Simon
Foscue, deceased," and the declaration upon the plaintiff's own possession, in
the usual form. The motion was overruled and judgment, rendered for the
plaintiff, whereupon defendant appealed to this Court.
Gaston for appellant.
Badger for appellee.
HALL, J. This case, I think, falls within the principle on which Graham, v.
Graham, 9 N. C., 322, was decided. From the words of the deed, the title of
the property in question was not to vest in the donee until after the death of
the donor; a life estate is reserved to the father; after his death a
limitation of it is made to the son. It is cause of regret that a disposition
of property so just and simple in itself cannot be sustained.
The Legislature by an act passed in 1823, have made provision for such cases.
But, unfortunately, this deed is not included in it, having been executed
anterior thereto. The opinion of the Court is that judgment must be entered
for the plaintiff.
PER CURIAM. Affirmed.
Cited: Sutton v. Hollowell, 13 N. C., 186; Morrow v. Williams, 14 N. C., 264;
West v. Ratledge, 15 N. C., 39; Hunt v. Davis, 20 N. C., 37; Newell v. Taylor,
56 N. C., 376.
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