
    Henry Kirby and Jared Kirby vs. James L. Calhoun.
    A limitation in a deed, by a donor, of slaves to his daughter and the heirs of her body, provided that should his daughter die without heirs of her body, then the slaves with their increase should be the property of his children and grand-children, who should be alive at the time of his daughter’s decease, is, by the act of the legislature of this state, H. & H. 349, s. 26, valid, and at the death of the daughter, without heirs of her body, vests in the children and grand-children of the donor then living, a good title.
    
      Carroll v. Renich, cited and affirmed.
    Error from the circuit court of Panola county ; Hon. Hugh R. Miller, judge.
    This was an action of replevin instituted in the circuit court of Panola county, to the April term, 1846, by James L. Calhoun against Henry Kirby and Jared Kirby, to recover the following named slaves, to wit: “Amand, Sherrod, Harriet, Alley, Maria, Emily, Stephen, Tom, Jim, Julius, and Bob, and also a barouche, one mule, and a gold watch.” At the return term, the defendants filed two pleas. The first, that they were not guilty of the wrongful detention, as plaintiff hath alleged. The second, “ that on the 31st day of December, 1844, the said Henry Kirby was lawfully possessed as of his own property, of the said slaves, Jim, Alley, Emily, Julius, William and Maria, and Julia, a woman slave, who is not mentioned in said declaration, and being so possessed, by deed of the date of the day and year aforesaid, signed with his name, and sealed with his seal, conveyed the said slaves Jim, Alley, Emily, Julius, William and Julia, to Lucinda Grove, the wife of the plaintiff, and the heirs of her body, provided, nevertheless, that should the said Lucinda die without heirs of her body, then, and in that case, the said described property, with their increase, should be the property of the surviving children, who should be alive at the death of the said Lucinda Grove; and the said Maria was afterwards substituted for the said Julia, by the pa-rol agreement of the said Lucinda Grove and the said Henry Kirby. And the said defendants aver that the said Lucinda Grove departed this life heretofore, to wit: Before the commencement of this suit, without heirs of her body, and that defendant, Jared Kirby, and Elizabeth White, the wife of Thomas D. White, are, and were, at the death of the said Lucinda Grove, the sole surviving children of the said Henry Kirby, and that he, by said right, and by consent of the said Elizabeth, holds the possession of the said slaves; and as to the said slaves, Amanda, Sherrod, Harriet, Stephen and Tom, defendants aver that they are, and were, at, and before the commencement of said suit, the property of Lucy Harper, and that defendant, Jared Kirby, holds, and detains possession of the same, by the consent and approbation of the said Lucy Harper, Without this,” &c. The plaintiff took issue on the first plea, and replied to the second; that on the 12th day of September, 1844, he intermarried with the said Lucinda Grove, who, at the time of her intermarriage, was seized and possessed as of her own property, without any limitation, condition, restriction, reversion, or remainder, in fee simple of the said several slaves, and being so seized and possessed thereof, she continued to hold and own the same, without any condition, reversion or remainder, until the time of her death. That at the time of the death of the said Lucinda Grove, she was the wife of the plaintiff, and died without any issue, or descendant or descendants of such issue; wherefore, the said slaves then and there became, and were the property of the plaintiff, and that he is now entitled to the possession thereof. And that on the 31st day of December, 1844, the said Henry Kirby was not lawfully seized and possessed of said slaves, and had no authority to convey the same. The (defendants rejoined, and upon the rejoinder, the plaintiff •took issue. On the trial, which took place in .April, 1846, the plaintiff introduced James Crenshaw, who testified that he was then, and had been the overseer of the plaintiff, since the first day of November, 1845, and he knew all the negroes in controversy, except one boy, that had been in the possession of plaintiff from the time witness commenced'overseeing for him, until the 14th day of January, 1846; that four of the negroes, children, were taken off in a wagon, by a negro man belonging to Henry Kirby, when plaintiff was absent from home; that a few mornings thereafter, the balance of the slaves in dispute were gone from the plantation of plaintiff; witness had seen them the evening before, and he did not know at what precise time they left, nor how, nor who had taken them; that Amanda was worth six hundred dollars, Sherrod, four hundred dollars, Tom, two hundred and fifty dollars, Stephen, two hundred dollars, Harriet, one hundred dollars, Maria, five hundred and fifty dollars, Bob, two hundred dollars, Alley, three hundred dollars, Emily, four hundred and twenty-five dollars, Julius, three hundred and fifty dollars, and Jim, eight hundred dollars; and that their hire was worth from the time they left the plaintiff’s plantation to the time of the trial, about the following sums: for Amanda, twenty-seven dollars, Sherrod, fifteen dollars, Maria, forty dollars, Alley, twenty dollars, Emily, sixteen dollars, Julius, eight dollars, and Jim, sixty dollars. The plaintiff, by several other witnesses, proved, in substance, that the morning after the slaves were missing from the plantation of the plaintiff, he, with others, at his request, went in search of the slaves, and found them at the house of Henry Kirby, and plaintiff demanded them of Jared Kirby, who refused to give them up. That plaintiff married Lucinda G. Kirby, daughter of the defendant, Henry Kirby, about the 12th day of September, 1844; that she died about the 23d day of December, 1845, without leaving any child then living; she had borne a child while she was the wife of the plaintiff, which died before she did. The plaintiff also proved a conversation held between Jared Kirby, and one of his, plaintiff’s, counsel, on the morning this suit was commenced, and also some other matters, none of which need be noticed here, as none of them bear upon the point upon which the case turned in this court. After the plaintiff had closed his evidence, the defendants then introduced and read to the jury the following deed, first proving its execution and delivery to Lucinda Grove, wife of the plaintiff, to wit:
    
      “ State of Mississippi, Yalobusha, County
    
    “ Be it known that I, Henry Kirby, of said state and county, for, and in consideration of the sura of ten dollars, to me in hand paid, the receipt whereof is hereby acknowledged, and for the further consideration of the love and affection I have and entertain towards my beloved daughter, Lucinda Grove, now the wife of James L. Calhoun, and all of said county, have bargained, sold, alienated, given and delivered unto my said daughter, wife as aforesaid, the following negroes, slaves for life, to wit: Jim, a man aged about twenty years, Alley, a woman aged about forty-five years, Julia, a girl aged about thirteen years, Emily, a girl aged about eleven years, and William, aged about two years; to have and to hold the said described negroes, unto iny said daughter aforesaid, and the heirs of her body; provided, nevertheless, that should my said daughter aforesaid depart this life without heirs of her body, then, and in that case, the said described property, together with their increase, shall be the property of my surviving children and grand-children, who shall be alive at my said daughter, Lucinda G.’s, decease. Now, therefore, I quit-claim, release, and deliver up the said described negroes for the said purposes. In witness whereof, I have hereunto set my hand and affixed my seal, this 81st day of December, 1844.
    
      “ H. KiRby. [l. s.] ”
    The defendants then proved that the slaves mentioned in the foregoing deed, except Julia, are part of the same slaves now in controversy. That Jared Kirby and Mrs. White of Texas, were the son and daughter of Henry Kirby ; that Mrs. White had two children, the grand-children of Henry Kirby, and all were living at the time of the death of Lucinda Grove, wife of plaintiff, and are still living. Defendants also proved that the plaintiff was at the house of defendant, Henry Kirby, when the four negro children arrived, and made no objection to their being brought there; that Jared Kirby remarked to plaintiff, he was sorry the children had been brought up through the cold, and the plaintiff made op reply to him. This being all the evidence offered on either side, the court, at the request of the plaintiff, charged the jury as follows, viz.:
    1. That the deed or bill of sale from Henry Kirby to Lucinda Grove, the wife of plaintiff, vested in her an absolute title to the slaves mentioned in it, and that on her death, without heirs of her body, her title vested in the plaintiff.
    2. That if the jury believe from the evidence, that Mrs. Harper made a conveyance of the slaves, Amanda and her children, to Mrs. Calhoun, and that she delivered the slaves to the plaintiff, as the husband of said Lucinda, under the conveyance, the right to the possession was thereby vested in the plaintiff.
    3. If the plaintiff had possession before the commencement of this suit by the authority, or consent of Mrs. Harper, it was in him the legal right of possession, until contradicted.
    The court also instructed the jury, at the request of the defendants, as follows, to wit:
    1. That if a party to a suit introduces, as evidence,, the statement of the opposite party, the jury must take the whole as evidence in the case. The party introducing such proof makes it testimony, and the jury must weigh the whole of it.
    
      2. That the return of the sheriff, upon the writ of replevin in this case, is not proof before the jury for the purpose of identifying the negroes in dispute, or for the purpose of establishing any fact involved in the issue before them, except the fact that the slaves referred to in the return, were in the possession of the defendants, at the time the writ was executed, and were returned to them on the giving of bond by them, and cannot be taken as showing that plaintiff had possession of such negroes, or had a right to the possession.
    3. If Mrs. Calhoun accepted of the negroes in the deed, according to the terms of the deed, she took such title only as the deed conveyed, and a failure on her part to show the deed to plaintiff cannot destroy or impair the rights of others, provided for in the deed.
    To the giving of the first instruction asked for by the plaintiff, the. defendants filed a bill of exceptions. The jury found a verdict in favor of the plaintiff, and judgment was entered accordingly. The defendants then moved for a new trial; and upon their motion being overruled, they filed a second bill of exceptions, and removed the case to this court, by writ of error.
    Watson, for plaintiffs in error.
    1. It is insisted that by the terms of the deed, the limitation over, was to vest, if at all, immediately upon the death of the first taker, Mrs. Calhoun. The language is, “ provided, nevertheless, that should my said daughter depart this life, without heirs of her body, then, and in that case, the said described property, together with their increase, shall be the property of my surviving children and grand-children, who shall be alive at my said daughter, Lucinda Grove’s, decease.” Language of this import has uniformly been held to create a limitation over, upon a definite, and not upon an indefinite failure of issue, and that such a limitation, whether created by deed or will, has always been sustained. See 6 Port. Ala. R. 319; Polk v. Paris, 9 Yerg. 209 ; 5 Humph. 505; 6 Munf. 174, 187, 301, 470; 1 Iredell, 186; Carroll v. Renich, 7 S. & M. 798, and others decided by this court, during its present term. 1 Ired. Law R. 566.
    The case in 9 Yerger, the last one referred to in 6 Munford, the one in Iredell’s Reports, and the case of Carroll v. Renich, all arose on deeds.
    In this state slaves are personal property, and that a limitation of personal property in remainder is good, see 2 Yerger, 582 ; 2 Humph. 589; 1 Leigh, 401; 2 Ibid. 131; 3 Ibid. 64; 5 Ibid. 447 ; 10 Ibid. 628.
    '2. The 26th section of the statute of conveyances, H. & H. page 349, settles this question. The language of this section is general, and that the mischief which it was designed to remedy existed as well in reference to personalty as realty, all of the cases conclusively show. And that the idea of giving this restricted construction to this act has never been countenanced by any respectable authority, see 2 Lomax’s Digest, 222, 223, sec. 9; 3 Lomax’s Digest, 221, sec. 9; 310, sec. 45; 9 Leigh, 53, 257, 259; 1 Iredell’s Law Reports, 183-186; Carroll v. 
      Renich, decided by this court. The third section of the forty-third chapter of the first volume of the Revised Statutes of North Carolina is a copy of our twenty-sixth section relied upon, with a slight addition.
    Waul, for defendant in error.
    This is a summary remedy, modelled by the statute upon the common law; intended to reach cases where a party was entitled to immediate possession, the right of possession can alone be put in issue, together with the unlawful detention of the property. The right of property cannot be decided in the cause. In this case the jury found only as to the right of possession ; and the verdict of the jury and judgment of the court cannot be plead in bar of any remedy which the plaintiffs in error may desire, to investigate the legal title. The special plea puts in issue but the unlawful detention and right of possession.
    There was no error in the instruction of the judge. For the limitation over is void for remoteness. The gift is to Lucinda G. “ and the heirs of her body, provided, nevertheless, that should my said daughter aforesaid depart this life without heirs of her body, then and in that case the said described property, together with their increase, shall be the property of my surviving children and grandchildren who shall be alive at my said daughter Lucinda G.’s decease.”
    The fair construction, on the authority of adjudged cases, is, that the words mean an “ indefinite failure of issue.” The property is first given without limitation of time, but to the heirs of the body generally for an indefinite time.
    The condition of the limitation is that the children and grandchildren of the grantor shall take, if his daughter dies without heirs of her body, which has ever been construed to mean, if she should die, and at any subsequent time her inheritable blood should cease, even at the close of many generations.
    Do the last words change this construction 1 Evidently the construction is, that his children shall take the property who shall be alive when his daughter dies ; not to take in any event, but only if she dies without heirs of her body, indefinitely. The words and construction of the law will not permit it to be confined in time, or added to by the addition of the words “ if living at the time of her death,” to the phrase, heirs of her body. The word surviving in this deed evidently means that the children and grandchildren that may be living at the decease of Lucinda G. without heirs of her body, at any future period, or that the children and grand-children who may be alive at the decease of Lucinda G. may take the estate, and they only, if her inheritable blood becomes extinct, in which case the limitation is too remote, but the property is locked up in the heirs of the body of Lucinda G., and the children and children’s children of the grantor, — none of whom are in esse. Polk v. Paris, 9 Yerg.; Booker v. Booker, 5 Humph. 512, Carroll v. Renich, 7 S & M. 798.
    But does the twenty-sixth section of the statute in regard to conveyances affect the construction of this gift ? Clearly not. The twenty-sixth section was adopted to reverse the construction that grew out of the rule in Shelly’s case, which was adopted by the judges to prevent the tying up of estates for an indefinite period, which was probably intended by the framers of the statute, (see Dwarris,) and which could not be done under the rules of construction before that time adopted by the common law; all of which apply to real estate, and not to personal property.
    By the common law personal property could not be entailed. The decisions upon conditional fees, the statute — see Dwarris — and the rule in Shelly’s case, had application alone to the rule of descents in realty, and the court will not imply that it was meant to reverse a rule of construction, which never had been made or supposed applicable to personalty; which latter estate was not considered of sufficient dignity to limit after a life estate. “ A contingent limitation is a technical term, and applies only to land.”
    Admitting the limitation is not too remote, it vests absolutely in the first taker, because the words would vest an estate tail in real estate in common law, and, according to all authority renders the gift absolute in personalty. 4 Kent; Chandless v. Price, 3 Yesey, 99. And personal having once vested cannot be limited. After the absolute estate, or what amounts to the same thing, an estate tail, is given, the limitation is void, for the property becomes vested instantly, and the power of disposition once attaching, the first taker has the interest. Jackson v. Bull, 10 John. 19; Booker v. Booker, 5 Humph. 512; Jackson v. Robins, 16 John. 537. And under our statute How. <fc Hutch. 348, sect. 24, this estate, which would be a conditional fee, has been released of the conditions at common law, full power of alienation given and the property vested. But in this case the condition has been performed by the birth of issue, and in the absence of the statute the estate would become absolute.
    Again, in all the cases produced, when a limitation is made of personal property, it must be made by way of executory devise or by deed, in which the property is held.by trustees in remainder. This being a deed direct, the remainder must vest with the use. Monroe v. Williams, 3 Dev. 263; Betty v. Moore, 1 Dana, 235; 1 Bay’s R
   Mr. Justice Clayton

delivered the opinion of the court.

This cause comes by writ of error from the circuit court of Panola. It was an action of replevin, and the charge of the court complained of involves the construction tobe placed upon the words of the deed. The words which give rise to the controversy are ; “to have and to hold the said negroes to my said daughter and the heirs of her body, provided, nevertheless, that should my said daughter depart this life without heirs of her body, then the said slaves, with their increase, shall be the property of my children and grand-children who shall be alive at my said daughter’s decease.” The court below was of opinion, that these words vested the absolute title in the first taker, and that upon her death, without issue, the title vested in her husband, Calhoun.

We need not consider the first point made by the counsel of the plaintiff in error, that this disposition to the children and grandchildren was good by the common law, We prefer to put the case exclusively upon our statute. Its provisions are, that “ every contingent limitation in any deed or will, made to depend upon the dying of any person without heirs, or heirs of the body, or without issue, or issue of the body, or without children, or offspring, or descendant or other relative, shall be held and interpreted a limitation, to take effect when such person shall die, not having.such heir or issue, or child, or offspring, or descendant, or other relative, (as the case may be,) living at the time of his death, or born to him within ten months thereafter, unless the intention of such limitation be otherwise expressly and' plainly declared on the face of the deed or will creating it.” H. & H. sec. 26, p. 343.

In the case of Carroll v. Renich, recently decided, we expressed a strong belief that the effect of this statute was to put an end to the numerous diátinctions and almost endless, refinements of the English law on this subject, and to furnish a rule of construction at once simple, obvious and intelligible. The point was not necessarily involved in that case, as the deed was made, and the rights accrued under it, in another state. But we need scarcely do more than say, that we deliberately adhere to that opinion.

In Virginia we find the original of this statute, word for word. A late learned commentator on the laws of that state, shows that this provision extends equally to deeds and to wills, to personal and to real estate, except where the use of the personalty involves its consumption as a consequence. He concludes by saying, “ under this rule of construction it will be difficult to conceive a case of limitation after the failure of issue, which can be construed now to be an estate tail. 3 Lomax’s Digest, 212, 296.

In New York there is a similar statute, of which Chancellor Kent thus speaks. “ These provisions sweep away at once the whole mass of English and American adjudications on the meaning, force and effect of such limitations. The statute speaks so peremptorily as to the construction which it prescribes, that the courts may not, perhaps, hereafter feel themselves at liberty to disregard its direction. It is impossible not to feel relief at the final settlement, in any way, of this litigious question by legislative enactment.” 4 Com. 280.

They have an identical statute, in North Carolina, which has received a judicial construction in accordance with that which we place upon ours. Tillman v. Sinclair, 1 Iredell Law Rep. 185.

We conclude, therefore, that the limitation over in this case comes within the bounds prescribed by the statute, and was valid.

But the counsel for the defendant in error insist that the action of replevin, under the statute of 1842, relates solely to the right of possession, and that the charge of the court was therefore unnecessary and could not influence the verdict. To this we reply, that granting his construction of that statute to be corrects-as to which we give no opinion — this charge was given at his request, and its direct tendency was to mislead the jury; for if the absolute title to the property were in the defendant in error, the right of possession was likewise in him, unless there were some special right in the plaintiff in error; about which there was no proof.

For the error in this charge the judgment is reversed and the cause remanded for a new trial.

Judgment reversed.  