
    William Smith and Others v. Richard Daniel.
    The remedies oí' a remainder-man against the tenant for life of real or personal properly. A tenant for life of real or personal property is a trustee for the remainder-man, and the court may take all necessary steps to prevent or restrain an abuse of his trust; as giving security to produce the properly at the end of the life estate, &c. Where a person buys property, with a knowledge that it is subject to a trust, he takes it subject to the trust. But where a person bought without a knowledge, and parted with the property before suit, he will not be compelled to give security, but he would if he still held the specific property. A remainder-man cannot obtain security lrom the tenant for life where there is no danger from the insolvency of the defendant, or where there is no reason to apprehend that lie is about to remove away or to dispose of his property. The bill not favored if filed by a purchaser on speculation for shares in the recovery.
    The bill stated that William Smith, Samuel Hicks, and Lucy, his wife, Owen Hall, and Judith, his wife, were the complainants. That Samuel Smith, of the State of North Carolina, about the 1st of March, 1707, made his last will and testament, wherein was the following provision : “T lend unto my daughter, Nancy James, a negro girl named Nancy, during her natural life; and after her death my desire is, that her surviving children may have and enjoy the said negro girl Nancy, and her increase forever.” That soon after the death of the *said testator the girl went into the possession of Nancy James, and her husband, George James. Some time after, George James sold the negro as his own property to the defendant, and that the complainants had been informed, and believed that one of the executors called on defendant some time after and gave him notice not to remove the girl out of the State, but which he had since done, having removed into South Carolina. George James (the bill stated) departed this life long since, and his widow was then old and infirm, and bad no other children besides Lucy Hicks and Judith Hall, who would be entitled at the old lady’s death to the remainder in the girl and her increase. That Lucy Hicks and her husband, and Judith Hall were very poor, lived at a great distance, and were unable to prosecute their claims; under these circumstances they had made a contract with William Smith, by which they were to give him one-half the negroes when recovered, to prosecute their claim; but that he was not able to file an exhibit of the contract, it having been left with the clerk of the court of W ilkes county, North Carolina, to be recorded. That Nancy had children, Sylvia, Spencer, Gabriel, Rundy and Henry; and it was supposed she had more, whose names they did not know, and also presumed that Nancy’s daughter had had children. The bill stated that complainants were fearful of being put to much trouble and expense in getting possession of the negroes at Nancy James’s death. That they were informed and believed that the defendant had carried off a part of the negroes, if not all, out of the State, expressly for the purpose of putting them out of the reach of complainants; or if he had not done so himself, that he had procured it to be done. So that if complainants were not aided by this court, they were in danger of losing the negroes, inasmuch as they could prove that defendant had said he knew he could not hold the negroes longer than Nancy *James’s lifetime, and that at the death he would give them up; but that some time ago it was reported that she was dead, and immediately the defendant, as complainants heard, was sending off some of his negroes privately to parts unknown to complainants. That the complainants had applied to defendant by their agents, and offered the purchase money for the girl, and f JOO extra if he would give her up and her increase; or, if he would not do this, that he would give bond and security to give up the negroes at Nancy James’s death, which very reasonable request the defendant refused to comply with. The bill prayed specially that Richard Daniel should set forth “whether he did not purchase the negro Nancy from George James, the husband of Nancy James? The price he gave for her? Where she now was? And whether he had not sent her out of the State to keep her out of the way of complainants?” To discover the name and value of each of her children? And as there was danger of complainants losing the testimony by which they expected to establish their claim, they prayed that such testimony be perpetuated by the aid of the court. They prayed, also, that the defendant might be compelled to enter into a bond and security for the negroes to be forthcoming when Nancy James should die, and that he would not part with the negroes, or any part of them, out of his possession.
    The defendant, in his answer, said he knew nothing of Samuel Smith, deceased, nor whether he left a will or not. He admitted that in 1798 he purchased a negro girl, Nanny, from one George James. He did not know if it were the same negro mentioned in Smith’s will or not; he gave seventy-five pounds Virginia currency for the girl to James, who was an entire stranger to him. That sum was as high as the girl could have been sold for anywhere. The defendant positively averred, that he had not the slightest notice of any claim to the girl at *time he purchased her, and that he gave a full, fair and adequate price for her. He set out the price given for negroes in different years, to show that he had given a reasonable price for Nanny. He admitted that some time after the purchase of the girl, one Smith, calling himself the executor of Samuel Smith, informed him that the negro was entertailed; he thereupon offered the girl back to James, from whom he had purchased her, but he refused to pay him his money, and was in fact insolvent. The defendant, in two or three years afterwards, moved to the district of Spartanburg, and resided there ever since, and had no intention of removing. Defendant did not know if Lucy Hicks and Judith Hall were the children of George James or not, though he believed that George James and his wife were still living. Nanny had children, Spencer, Gabriel, Rundy and Henry, who might be still living, but whether or not defendant did not know, as well as Sylvia, Isaac, -, and a girl, who were dead ; none of the children of Nanny had had issue. Defendant having heard that an attempt would be made to get Nanny and her children into the possession of the agents of Hall and Hicks, and being satisfied that the report was true, he, anxious to get rid of a law suit in his old age, by the advice of his friends, some time in April, 1824, sold all the said negroes for 1800; giving the purchaser notice of the pretended claim of Hall and Hicks. And he sold only such estate in them as he had, whatever that estate might be, having claimed no right to the property since 1824. He submitted whether the complainants could be entitled to the security from him they required. He objected, as he was instructed he had a right to do, being an innocent purchaser, without notice, to answer anything more to the premises, and likewise to the perpetuation of the testimony; and denied all unlawful combination of fraud on his part, and prayed that the complainants might be enjoined from harassing *him any further in law or equity, and that lie might be dismissed with the costs, *- &c. He further said that George James pretended to have a good title to the negro, and he bought her without suspicion or cause of suspicion. He had never said he would give up the negro at the old woman’s death, but spoke of the claim of complainants as leaving his right doubtful, and that he might have to give them up. That Smith did ask him to give security for the forthcoming of the negroes, but not till after the bill was filed; that he refused, and still refused, unless ordered by the court to do so. Defendant estimated the true value of the negroes at $950; he sold them to J. Harrison, of Green-ville district, at the time slated.
    No witnesses were sworn in the case, and his honor decided upon the bill and answer.
    Thompson, Chancellor. The bill states that Samuel Smith, of North Carolina, loaned to his daughter Nancy James, during her natural life, a negro girl named Nancy, and at her death he gave Nancy and her increase by his will to her surviving children : the wife of William S. Hicks, and the wife of Owen Hall, two of the complainants, are her children. That George James, the husband of Nancy James, sold the negro girl to the defendant, Richard Daniel. That Richard Daniel has carried oil'or sold the negroes for the purpose of preventing a recovery of them by the complainants. The application to this court now is, that the defendant, Richard Daniel, do give security for the production and delivery of the negro Nancy, together with her increase, to the persons in remainder, upon the determination of the life estate.
    This power is clearly vested in this court; otherwise great inconvenience and trouble would accrue to remainder-men. It is every day’s practice to grant such *orders. As the defendant has already r*j¿}g evinced a determination to place them in a situation where it L would almost amount to an impossibility for the complainants to find them, it is therefore ordered and decreed, that the commissioner do ascertain the value of the said negroes, and that defendant do enter into bond and security in double their value, to have them forthcoming when the life estate shall determine, or that he pay their value on that event and the costs of suit.
    The defendant now moved the court of appeals to reverse the circuit decree on the following grounds :
    
      First. Because there was no evidence of the identity of the negroes, of the complainants being the persons entitled to them.
    
      Second. The defendant was an innocent purchaser, without notice from the person rightfully in possession, and was not bound to give the security required.
    
      Third. That the negroes being out of defendant’s possession long-before the bill was filed, he was not answerable for them either in law' or equity.
    
      Fourth. That the complainants were bound to sue for the specific negroes, no matter in whose hands they were, without charging an intermediate purchaser.
    
      Fifth. That the decree decided upon the right of property, when the bill was only filed to procure security until the right could be tried.
    ITenry and Earle, for the appellants.
    A. W. Thompson, contra.
   Curia, per

Nott, J.

I have no doubt of the power of the court or equity to restrain a tenant for life from committing waste, or to require him to give security to have personal property forthcoming at the termination *of the life estate. A tenant for life is considered in the nature of a trustee for those in remainder, and the court rnay therefore take all the necessary steps to prevent or restrain an abuse of his trust. And when a person purchases, with a knowledge of the situation of the property, he takes it coupled with the trust, and will be considered as standing in the same relation to the party. But it is not even alleged in this case that the defendant, at the time he made the purchase, knew that the vendor had only a life estate : and he positively denies in his answer that he had any such knowledge But nevertheless if he had the specific property now in his possession and there was no reason to apprehend that he was about to remove it out of the limits of the State, I have no doubt that, even in that case, the court would subject the defendant to such terms as would render the complainant secure : but the defendant, in his answer, swears that he had parted with the property long before the bill was filed ; he cannot therefore be required to give security to produce the property itself and that is all the complainant requires. The decree therefore goes beyond the prayer of the bill, in giving to the complainant what he does not ask. But it does not appear to me, that if they had specifically prayed for the relief which has now been granted, that it ought to have been allowed. A person who has purchased a life estate may sell it again, unless restrained, while the property is in his actual possession; and he cannot be made answerable for the act of another over whom he has no control. And it docs not appear to me, that he can be made liable for property which thus passes through his hands, But even admitting that he may be ultimately liable, still I do not think that the complainants have made out a case which entitles them to the relief that is sought for. They do not pretend that they are in danger of suffering by the insolvency of the defendant, or otherwise. *0n the contrary, they state that ho is wealthy. There is no reason to apprehend, that he is about to remove away or dispose of his property. If he is responsible at all, he will continue to be so when their right accrues. Besides I do not see anything in this case to entitle the complainants to any particular favor. Their ancestor, in the first place, fraudulently imposed upon this defendant in the sale of the property. Thirty years have elapsed, and no steps have been taken to compel him to perform his trust : and now an attempt is made to make this defendant liable for his fraud. And it is further to be remarked that the bill is now filed by one who admits that he has purchased upon speculation, and has undertaken to maintain the suit for one half of what he can recover. I do not think therefore that he comes with very strong claims upon the discretion of this court, to afford him this extraordinary remedy, which should be allowed in any case with extreme caution. I am of opinion therefore that the decree ought to be reversed.

I observe that the bill also claims a discovery, and prays for the perpetuation of testimony. And it is stated that there is an amended answer which is not before us. Whether those matters furnish any ground for retaining the bill I do not know. Of that the chancellor must judge, if they do, let the bill he retained until those questions shall be disposed off; if not, let it be dismissed with costs.

Decree reversed.  