
    CONSTITUTIONAL COURT,
    COLUMBIA,
    APRIL, 1802.
    Stockton v. Martin.
    Deed of a gift to a married woman in these words: “ The said Harden lends to his said daughter, during her natural life,” certain slaves. “ and, after her death, to the heirs of her body, equally to be divided.” Held, that the limitation Over was void, and the whole vested in the first taker; and that the .husband having acquired possession of the slaves, the jus mdriti attached, \yide 2 Bay, 471, S. C. Hinson and wife v. Pickett, 1 Hills Ch. 55.]
    The minute books of a county court are sufficient evidence of a judg. ment, under the act of 1800, without producing the record. 6b diet.
    
    Where the defendant in an attachment has appeared, and pleaded, and judgment is recovered against him, he cannot afterwards avoid the judgment, on the ground that the attachment was irregular. 6b diet.
    
    This was an action of detinue for certain negro slaves, tried in Union district, before Gkimke, J. The plaintiff, a widow, claimed the slaves in dispute, by virtue of a deed of gift from her father, William Hax’den. The deed appeared to have been made to her while under coverture. The consideration stated-in the deed, is “natural love and affection.” The gift is expressed in the deed after this manner : “ The said Harden lends to his said daughter, during her natural life (the negroes in the said deed mentioned ;) and af. ter her death,-¿o the heirs of her body, equally to he divided: to hold the same, to the only use and behoof of her, and her heirs : and warrants the same to her and the heirs of her body only” David Stockton, the plaintiff’s husband, had"possession of the negroes thus given, several years, and until they were siczcd and taken, by the sheriff, (in the life lime of David Stockton,) to satisfy a judgment recovered against him. The defendant was the purchaser at the sheriff’s sale, and claimed under a bill of sale made to him by the sheriff. The defendant at the trial, offered in evidence the minute book, or journal of the judicial proceedings of the county court of Union, to prove that a judgment had been obtained hi the case against David Stockton ; and produced an original war. rant of attachment, being the leading process in the case, issued by a justice of peacé, pursuant to the act of 1785, P. L. 367, but' which, it appeared, had been levied on land. It appeared, however,' that upon the return of this attachment, an attorney had entered a pica for the defendant, upon the warrant of attachment,* and that some friend of the defendant had entered himself as bail to the ac,' tion, in order tó dissolve the attachment'. There were no proceed, ings prodüced, by way of declaration, plea, <Ssc., nor any postea, or judgment entered up ; but merely the entry on the minutes, of a trial by a jury, and a verdict for the plaintiff against Stockton.'
    The evidence offered to prove that there was a judgment, upon which the execution issued, under which the negroes in dispute’ were sold by the sheriff, was objected to as insufficient: and the objection was supported in the district court.
    The defendant submitted a motion in ibis court, for á new trial," upon two grounds :
    1. That the plaintiff had proved so property in herself, nor any right to maintain the action. 2. That the evidence of the judgment/ given upon the trial, was admissible, and sufficient.
    It was argued by the counsel for the defendant, 1st That the gift of the negroes in dispute, being to the plaintiff, while she was covert of her husband, David Stockton/ enured to the benefit of tho husband, and that the property vested absolutely in him, and became liable to satisfy his debts. That being so vested in him, in his hfo lime, they passed at his death into the hands of his personal representatives, and were assets in their hands for the payment of debts. 2 Bl. Com. 433. Bac. Abr. Baron and Feme. D. 2 Rol. 49. Com. Dig. Baron and Feme. E. 3.
    SFáust, 359.
    2d. That the sheriff had authority to sell, if the property was liable to David Stockton’s debts ; and that the evidence offered of a judgment against Stockton, was sufficient, aided by the act of assembly of 1800, which enacts, “ that a transcript from the minute books of the county courts, shall bo good and legal evidencein all trials in any of the courts of lavs* or equity in this State, if certified by the keeper of the records of such courts.” That if a transcript of those proceedings would have been sufficient to shew, or prove a judgment, the original proceedings ia'anselves, could not be less effectual: and that the act of assembly «•as intended to cure the want of formality, and other deficients in the proceedings of the county courts. And although the original proceedings were irregular, the attachment being levied on land ; yet the defendant having appeared, the irregularity was waived, and he was bound by the judgment.
    The plaintiff’s counsel contended, that, as it appeared evident from the language of the deed of gift, that the negroes were only intended to be loaned to the plaintiff, during.her life, no absolute properly vested in her ; and, therefore, none could vest in her husband. That the donor intended a gift of the negroes to the plaintiff’s children ; and that she should enjoy the mere use of the negroes during her life, which was meant for her sole and separate . use. (Vid. Fearne, Ex. Dev. 174, 347.) That in the case of, a chattel real, a gift to the wife vests an estate in the husband sub modo only. And so also of choses in action. 2 Bk Com. 434., That in this case an absolute property ought not to vest in the plaintiff, because it was not intended by the deed ; and that the intention of the party in making a deed, if it can be clearly discovered by the whole scope and tendency of the instrument, ought to prevail, notwithstanding any technical difficulty in the way, as Well. as in the case of a will. That the gift might be construed, to be other than a gift in tail, and ought to be supported. 1 P. Wms. 125.
    And as to the evidence offered of a judgment, it was insufficient to shew that any judgment was ever rendered in the case. That there did not appear any record of a judgment, nor any proceedings, to warrant a judgment. That the attachment having been issued by a justice of peace, by virtue of the áct of 1784, it did not authorise a levy on land ; and being levied on land, the execution was Unlawful and void, and no legal proceedings could be founded on such a service."...
   The judges delivered their opinions seriatim:

Brevard, J.,

was of opinion that the donor did intend to give the slaves in dispute, to his daughter, only during her life ; and that at her death they should go to her children, to be divided among them equally. And if the gift had been of land, some difficulty might, occur in the construction of the words used in making the dona, liou ; but being of personal chattels, the limitation by deed of gift, being inconsistent with the rules of law, was void, and the whole property vested absolutely in the donee, the plaintiff; or rather, it vested in her husband, she being at the time of the gift a married woman. 2 Woodes. 239. Fearne, Ex. Dev. 161. 2 Atk. 308. But even admitting that she"took only a life estate, o?; had an interest in the negroes during her life, that estate, or interest, vested' in her husband, and might be sold for satisfaction of his debts ; f°r the property was-not settled on her, or the interest secured to her, for her separate use. Com. Dig. Baron and Feme. E. 3. 4 Vin. Abr. 116. Com. Dig. Chancery. 2 M. 9. Co. Litt. 351. And although in the case of a chattel real, as a term given to one and the heirs of his body, it shall endure no longer than he lias heirs of his body; yet in case of a chattel personal, the absolute nature of the gift will not depend on any such contingency. But admit that the cases are to be governed by the same rules, and that the plaintiff has no heirs of her body, the property must revert to the donor at her death, as there is no ulterior limitation over, upon that event expressed in the deed : and, therefore, quacunque via data, the plaintiff could have no right to recover.

As to tlic evidence offered to prove the judgment in question, ho thought it was sufficient for that purpose ; the act of 1800, having, helped all defects of form, and omissions,-and) in effect, said, that every thing which was intended to be done fairly, and'which, through ignorance, or carelessness, has been defectively done,-shall be considered as done in due form. The service of- the attachment’ must be out of the question, as the defendant in attachment had appeared by attorney, and the suit went on, upon his appearance,after the attachment was dissolved ; but it was not necessary to consider this objection, since' the other ground was sufficient to induce him to think that a new trial ought to be granted.

Trezevant, J.,

also thought a new trial should be allowed for-the same reasons.- Chattels personal, which vest in baron andfeme, do not survive to the feme. See 4 Vin. Abr. 110. It is otherwise as to chattels real, as a lease for years made to baron and feme ; for, la sucli cáse, the feme shall have it by survivorship. lb. 116. So the husband may dispose of his wife’s interest in a chattel real, in his life time, by grant, or demise. Co. Litt. 46, 351 ; but he cannot devise if, or charge it beyond tlie. coverture. Ib. Com. Dig. Baron and Feme. E. 2. In this case the property given to the wife, instantly vested in the husband ; and whether the sheriff had, or had not, authority to soil, the plaintiff' had no right to recover in this action in her own right. But he also thought the evidence offered to prove the county court judgment, was suffi. cient proof of the same, under the act of 1800; the appearance of the defendant, after dissolving the attachment, having cured the illegality of the service, or rather made that service immaterial.

Johnson, J.,

thought that the limitation over to thp heirs of the do-1•nee’s body in such a case as this, could not be supported by legal rprinciples. The remainder could not vest, as in the case of land, at the time of the gift, which is necessary to constitute a good remainder over: 1 Salk. 225. And a contingent remainder of , , ’ \ , , , O chattels cannot be created by a common law conveyance, See Fearne, Ex. Dev. 306, 50, 54. The property, therefore, vested in the husband, immediately upon the execution of the deed of gift to the wife. The donor, he thought, intended to entail the property, which •cannot be done. 1 P. Wms. 290, 534. 2 Bl. Rep. 398. Co. Litt. 20. Hargr. note. Com. Dig. Chancery. 2 M. 9. 1 Bay, 453. 1 P. Wms. 125. 2 P. Wms. 78. 3 Atk. 393. He also said that it did not- appear, that the donor intended the donation for the sole use of his daughter, but for her children; but if that was his intention, it could not be made effectual in such case as this, where the deed was made to her, and not to trustees. And further, that the intention could not be effectuated to the same .extent by a deed, as in the case of a last will;' and that the limitation could not, at any rate, in this case, take effect, though it should be construed to have been intended to take effect by way of designatio personae. He also thought the evidence offered to prove the judgment, was suffi,cient under the act of assembly of 1800.

Bay, J.

E contra. Thought the donor’s intention ought to prevail. The words, I lendimported an intention of giving to his daughter only the use of the property for life ; arid the property itself was intended to- be given to others. The husband was never entitled to more than the use of the property for his life; and upon his decease the use reverted to her. He therefore thought that the plaintiff was entitled to maintain the action. And inaspiuch as it appeared that the attachment, which was the foundation of the action upon which the judgment was had, and to satisfy which, the negroes were sold, was levied on land, which could not be lawfully done, he thought the judgment was radically wrong. He said the appearance of the defendant in the action could not be interpreted into a waiver of the illegality of the service of the attachment; for that the defendant could not, by his consent, give the court a jurisdiction which it had not. Upon the whole, he thought the verdict was right, and that a new frial ought not to be granted.

Waties, J.,

was of opinion that the deed ought to be construed with the same liberality as if it were the last will and testament of the donor; and that “ heirs of the body,” might be construed, to mean the children of the first donee, the plaintiff, living at the donee’s death, who might take by way of descriptio persones. Also, that 1136 01 ^oan ^le pln-intiff, might be considered as fov her sc» parale use ; and that such a donation might be effectual without the intervention of trustees. Amb. 72. Com. Dig. Chancery. 2 M. 3. 2 Vesey, 191. 1 Pow. on Con. 67. 1 Pow. on Con. 104. 3 Atk. 712. He concurred, however, with the other judges, w'10 were °f opinion that the appearance, &c. of Stockton, amounted to a waiver of all exceptions to the attachment.

Nott, for defendant. Smith, for plaintiff.

Grhike, J.,

presided at the trial, and, therefore, gave no opinion here.

New trial granted.  