
    Hughes vs. Cannon.
    1. The legislature have the power tó pass laws for the purpose oí curing the defective probate and registration of deeds, under previously existing laws; the solemnities which are required to evidence the transfer of property, affecting the remedy and not the rights of the parties. - »
    2; A limitation in remainder of personal chattels by deed is good in Virginia and Tennessee.
    3. The case of Baldwin vst Baldwin, (see ante page 473,) referred to and appro-bated ; also Morgan vs. Elam, 4 Yerg. 375,
    4. Winn loaned by deed and delivered a slave to Hughes and wife, to'be and re^ main in the personal service of the wife during the life of the wife, and alter her death to go to such child or children or heirs surviving tit the death of the wife as might have attained or might attain the age of21 years: Held, that such deed con-'veyfe’d to the wife a valid life bstate, with remainder to her son who attained the tigs of 21 years, the said deed not lulling Within the rule in Shelly’s case.
    William Hughes married Mariah, the daughter of O. Winn, in the county of Lunenburgh, State of Virginia, in the year 1815» In 1817, being ábout to remove to the State of Tennessee, Winn placed in the hands of Hughes and wife a slave named Jack, the subject of the present controversy. At the time of the delivery 6f this sláve a deed was made in reference to him, the contents of which are as follows: “I, the said O. Winn, do hereby deliver to said William Hughes and Mariah, one negro boy named Jack, on the following terms and conditions, namely, that the said negro remain in the personal service of said William Hughes and his wife, not subject to the payment of any debt of said William or Mariah, or to be taken by any contract of said Hughes of whatsoever nature, arid if the said Mariah should die, leaving no heir of her body, then the said negro Jack shall be returned to. the said O. Winn and his heirs; and in case the said Mariah should die leaving an heir or heirs of her body, and the said heir or heirs should die before they come to the age of twenty-one years; and in case they leave no heir of their bodies, then the said negro shall be returned id said Winn or his heirs; but iri cáse the said Mariah shall have a child or children, and die leaving said child - or children surviving after her death, and her child or children shall have no heirs of their bodies or arrive at the age of twenty-one years, then I, the said Orsemus Winn do lend to said William Hughes and Mariah his wife, the said negro during the natural life of said Mariah, and after the death of said Mariah, I, the said O. Winn, do give and bequeath to the said child or children of Mariah, if any should arrive at twe'rfiy-one years of age or leave heirs of their bodies, the aforesaid negro to have and hold forever, and in case the said William and Mariah will receive the said negro on the aforesaid conditions, I, the said O. Winn do hereby warrant and' defend the right of said negro to said William and Mariah during the natural .life of said Mariah,' and then to the supposed heir of said' Mariah on the' above conditions, against the claim of all persons,” &c.
    O’n the' back of this deed was written the following agreement, which was signed by William and Mariah Hughes and sealed by them, to wit:
    “We, the said William and Mariah Hughes, do hereby ácknówl-édgé we have received the above named negro oh the above written conditions, and do bind ourselves and our heirs to comply with the conditions in the sum of one thousand pounds current money of Virginia, i'n witness,” &c.
    The following is the probate of these instruments, to wit: “In Lunenburg clerk’s office, 24th January, 1817, the foregoing writing was proved as to O. Winn by the oath of Édvvard Winn, á subscribing witness thereto"; and the condition thereunder written, signed by W. and M. Hughes was proved by the Oaths of Edward Winn and W. M. White, two of, the subscribing witnesses thereto, which vVere severally ordered- to be recorded,
    W. H. f AVLOR, Clerk.”'
    William Hughes brought the slave to the State of Tennessee and retained possession of him. until about the year 1825, when Hughes sold him to one Townsend for the sum of $400. The possession was delivered and a bill of sale signed by Hughes and wife rrfáde and delivered to Townsend. Townsend died, and in the distribution of his estate the slave was allotted to a son-in-law, Winn, arid hy Winn sold to A. Cannon for a valuable consideration, ivithóüt notice of any oustanding claim to the slave.
    This bilí was filed in the chancery court at Siurfreesborough on the 9th day of July, 1838, by Mariah Hughes and Edward Hughes her son and only child against Cannon.
    The bill ássef ts á right to a life eátate in the slave in behalf of Ma-riah Hughes, with remainder to Edward after the determination of the life estate, under the provisions of the deed made by Ó. Winn in l8l7. The bill prays that Mariah Hughes have a decree for the irfiríiediáté]iciSíiessiottofthe slave, or that Edward (if entitled thereto) have decreed to him the possession as he was now more than twenty-one years of age.
    The complainant Edward alleging that he was entitled to the possession of the slave after the determination of the life estate of his mother, at all events, and that he was apprehensive that the slave would be removed beyond the jurisdiction of the court, prayed that his remainder interest might be secured by the intervention of the court.
    The defendant answered the bill, and the cause'came on to be heard on bill, answer, replication and proof (the complainant Mariah having died in the meantime,) at the July term, 1841, Ridley, chancellor, presiding. He being of opinion that Cannon had no right to take advantage of the non-registration of this deed in this State, not being a purchaser from the grantor, and that the deed conferred a valid life estate on Mariah Hughes, and after her death an absolute estate to her sonEdward, decreed the possession of the slave to said Edward, and hire from the death of Mariah. The defendant appealed.
    
      H. M. Burton, for the complainant..
    The grounds of defence relied ón are, 1. That the bill of sale from O. Winn has not been proven and registered according to “our law”(the law of Tén.) To this it is answered that the lex loci governs as well in relation to the authentication of contracts as in regard to their construction and effect. Story’s Com. on Conflict of Laws, (2nd Ed.) page 524-26: 4th Kent’s Com. Nor does the fact that the bill of sale was made in contemplation of a removal to this State alter the case. Crenshaw vs. Anthony, Mar. & Yer.-page 102: Loving vs. Hunter, 8 Yerger, page 4. The laws of Virginia, (the bill of sale having been executed there,) then govern in regard to the registration. And by our act of 1839-40, this court may take notice of them judicially. By the act of 1792, of Virginia, which appears to have been in force at the date of the execution of the deed, a deed of gift of slaves was required to be registered only in cases where the donor retained the possession. Rev. Stat. ofVa. vol. 1, page 269: Moore vs. Ducaney, 3d Henning & Munford’s Rep. page 139. It is then sufficient that the execution of the deed is proven as at common law, which is done by the witness, William Hughes. But the deed of gift is registered in Lunenburg county, Virginia, and has endorsed upon it the certificate of the clerk that it was duly proved. And the objection that the clerk does not give a copy of the order admitting it to probate, bat merely certifies that it was duly proven,cannot now avail. That defect is now cured by our act of 1839-40, on the subject of registration.
    2. It is objected that the limitation amounts to a perpetuity. A perpetuity is defined by Sir Ed. Sugden to be such a limitation of an estate as renders it unalienable beyond the period allowed by law. And property may be, by our'law, rendered unalienable for any number of lives in being, and twenty-one years and a fraction of a year thereafter. 4th Kent’s Com. page 267.
    3. That the sale by Wm. and Mariah Hughes, purporting to convey a greater estate than they possessed, operated as a forfeiture, and there then being no particular estate to support the remainder, it was gone. • This would have been so at common law, but our statutory deeds do not operate, as an ancient foefiment, to pass the fee simple into rights of entry or action. But they operate only gs grants to convey what the bargainor may lawfully sell. Miller vs. Miller, Meigs’ Rep. page 484.
    4. Adverse possession and the statutes of limitation are relied on. But this would involve the absurdity that the statute began to run before the right of action accrued. Edward Hughes, the present complainant, could hove commenced no action to recover the possession of the slave in question before the death of his mo, ther in the month of September, 1838. And the bill was not filed on behalf of the present complainant, to obtain the immediate possession of the slave; but to protect his right as remainderman, ■which he might well do, he then having such an interest as-a court of equity will protect, Henderson vs. Vaulz, 10th Yerger’sRep, And the court, once having jurisdiction of the cause, would not drive him into a court of law after the death of his mother, but would proceed to do justice between the parties.
    5. That there was-no delivery of possession to Edward Hughes or to any one for him. The possession of the tenant for life is the possession of the remainderman. Coke onLjtt, And moreover where the gift is evidenced by writing, possession is not essential to its validity. Caines vs. Marley, 2 Yérger’s Reports, page 182.
    6. That Cannon was a bona fide purchaser without notice. Whatever Cannon’s equity may be, that of Hughes is at least equal to it; and in addition he has the legal title and could successfully prosecute his action of detinue or trover for the recovery of the slave, but that this court retains jurisdiction,of the case to prevent circuity of action.
    7. The counsel for the defendant relies with much confidence on the position, “that a contingent remainder cannot be created by deed;” and the cases in 3 Dev. N. C. Rep. page 262, and in 2 Mur-phey, are relied on in support of the position. This was true at an early period of the Common Law, but it is not so at this day. 4th Kent, page 352. The North Carolina decisions followed the old common law doctrine, until corrected by statute, (see Rev. S. of-N, C. ch. 37, sec. 22,) and by the decisions of that State neither a vested or contingent remainder could be created by deed. Graham vs. Graham, 2 Hawks’ Rep. 322, and Foscue vs. Foscue, 3 Hawks, 358. And the reason of the rule stated in the argument of the first of these cases by Mr. Ruffin, (now one of the judges of the supreme court of North Carolina,) and upon ' which the court seems to have decided the case, applies with equal force to either a vested or contingent remainder created by deed.
    But, by the decisions of our own State, a vested remainder may be created by deed. Johnson vs. Mitchell, 1st Humphreys’ Rep. 173: Gaines vs. Marley, 2 Yerger, 5S2. And why not a contingent remainder? It is not the uncertainty of the enjoyment of an estate in future, but the uncertainty.of the right to that enjoyment which constitutes the difference between a vested and contingent remainder. 4th Kent, page 206: Fearne on Rem. page 3. Now if there be any sound reason in the common law rule in either case, it is in the perishable nature of personal property, and not in the right of enjoyment, and it would apply with equal force to both. If it applies not to a vested, then it cannot apply to a contingent remainder.
    The decisions of the supreme court-of Virginia, are of the highest authority in this case, the deed of gift having been executed in that State, and the lex loci governing in its construction and effect. The case of Higgenbotham vs. Rucker, 2 Call’s V. R. p. 313, is directly in point, and decides that a contingent remainder may be created by deed. The same principle is also directly decided in the case of Keen vs. Macey, 2 Bibb’s Ken. Rep. page 39, and on the authority of the decision of the former case. It may here be remarked that the decisions of the supreme court of Kentucky, in any case governed by the laws of Virginia are of scarcely less authority than the decisions of the latter State themselves, having, when she ceased to be part of her territory and became an independent State, adopted the laws of Virginia for her government.
    ■8. It is further argued that the limitation falls within the rule in Shelly’s case. The word “heirs,” though technically used as a word of limitation, may be so restricted as to be descriptive of particular persons, and therefore words of purchase. Law Lib. Ancestor & Heir, page 3,6-7, and annexed table of cases. They are frequently so used. 6 Yerger, 103.
    Where it appears to be the intention that the first taker should have a life estate only, the word “heirs” is construed to be a word of purchase. Hodgson vs. Bussey, 2 Atkins: Hickman vs. Ellison, 2 Vernon, 195: Archer’s case,l Coke’s Rep: Peacock vs. Spooner, 2 Vernon, 362: Fearne on Rem. 149, 210. In the case of Hick-manys. Quinn, the words “loan to my daughter during her natural life” seem to have taken the case out of the rule. In Loving vs. Hunter, the words “loaned to my daughters during their natural lives, and then to the heirs,” áre., was determined not to fall within the rule.
    The intention of the grantor, (Orsemus Winn,) as is apparent from the face of the instrument, is clearly that Wm- and Mariah Hughes should have a life estate for the life of the latter in the slave in question, with remainder over to the child or children, if any there should be of the said Mariah surviving her, when they should arrive at twenty-one years of age, or if dying before that time to such children as they should have remaining. This intention is apparent, first, from the use of the words loan for the life of the said Mariah; second, by exempting the slave in the deed from any debt the said Wm. or Mariah might contract; third, by the super-added words, child or children. And where the intention is apparent, the courts will carry out that intention unless it contravene some positive rule of law. Smith vs. Bell, 6 Peters’ Rep. 68.
    Mr. E. A. Keeble argued this case for the defendant at length. The reporter was not furnished with his brief.
   Reese, J.

delivered the opinion of the court.

In 1817, William Hughes and Mariah Hughes his wife, were about to remove from the State of Virginia to this State. The father-in-law of Hughes, one Orsemus Winn, placed in their possession a negro boy Jack, the subject of this controversy. At that time the document exhibited with the bill, was executed by Winn. As to that document two considerations arise, first, is it before us as evidence? secondly, what is its legal operation? It is not admitted in the answer, yet it is not strongly put in issue. And William Hughes, a witness in the cause says, that upon the names of the witnesses being read to him, he remembers that he signed the paper; he was ignorant however of its contents. The paper is recorded in the county of Lunenburgh, Va., and the clerk of. that county, not giving a copy of the record of probate, certifies that it was duly proved according to law. This probate, before our registration act of 1839-40, would have been held insufficient. It is good by the terms of that statute. But it is said that a certificate of probate, which before that statute could not have been registered, cannot now be received; that to permit it, would give to the act an operation violative of the constitution. To this proposition we are unable to yield our assent. Registration laws are founded Upon reasons of public policy. By them it is intended that certain instruments, evidencing a transfer of property shall be made known and be subject to public inspection, and also, that the proof of their existence shall be perpetuated. The solemnities of their execution and authentication, may be as many, or as few, and of that precise character, which the legislature may prescribe. The subject is within their competency. And whether their provisions relate to the future or the past, they affect the remedy and not the right.

Upon this ground then, if it were necessary to resort to it, we think the instrument in question is before us in evidence? 2nd. What is its legal effect? The instrument is most inartificially drawn. It states, that “the said O. Winn doth hereby deliver to the said William and Mariah his wife, one negro boy named Jack, on the following conditions, namely, that the said negro remain in the personal possession of the said Wm. Hughes and Mariah his wife, not subject to the payment of any debt of the said Wm. Hughes or Mariah, nor to be taken by any contract of said Wm. Hughes, of what nature or kind soever; and if the aforesaid Mariah shall die leaving no heir or heirs of her body, then the said negro shall be returned to the said O. Winn and his heirs, and in case the said Mariah shall die, leaving an heir or heirs of her body, and the said heir or heirs, shall die before they come to the age of twenty-one, and in case they leave no heir of their body, then the said negro shall be returned to the saidO. Winn or his heirs. “But in cash the said Mariah shall have a child or children and die leaving said child or children surviving after herdeath, and her child or children should have heirs of their body or arrive to the age of twenty-one years, then I, the said O. Winn, doth lend to the said Wm.- Hughes and Mariah his wife, the said negro during the natural life of the said Mariah, and after the death of the said Mariah-, I, the said O. Winn, do give and bequeath to the said child or children of the said Mariah, (if any of them should arrive to the age of twenty-one years of age, or leave heirs of their body) the aforesaid negro to have and to hold forever.”

Stripping this document of the clauses inserted with stich solicitude by the grantor to create a reversion in himself, and it imports that Winn had delivered and loaned to Hughes and wife, the negro to be and remain in their service, for and during the natural life of the wife, and that then and after the death of the' wife, that he gave him to such child or children of hers surviving at the time of the death of the wife as might have attáined or might attain the age of twenty-one years, &c.

The very statement shows that it does not fall within the rule of Shelly’s case. The general intent is not to limit the reversion even upon an indefinite failure of issue. The particular intent is to give to the first taker only a life estate; this is manifested by the terms “deliver” and “lend” for her natural life. The remainder is given by different terms, and as a separate, and as it were, independent donation to the child or children of the wife surviving at her death. These are the very terms appropriate to exclude a case from the operation of the rule in Shelly’s case. The remainder is vested in the child or children, living at the death of the wife, contingent, however, upon their arrival at the age of twenty-one years, or if dying, before that time, upon their leaving children then surviving.

In the case before the court, the tenant for life, had one child born, the complainant, and he reached the age of twenty-one before the termination of the life estate.

As to whether a limitation in remainder of a personal chattel, can take effect, it is not an open question.

It is now, in despite of contrary opinions early entertained, á well settled point that such limitation is good. As to the other question,-relating to the nonregistration of the deed in this State, the ease of Morgan and Elam, and the case determined at the present term of Baldwin vs. Baldwin, and other cases and decisions, settle, that in Virginia as well as in this State, under the statutes applying to this instrument, the want of registration avoids the deed- as to creditors of, and the purchasers from, the grantor only. Upon the whole case we are of opinion, that the decree of the chancellor ought to be affirmed.  