
    
      H. A. Johnson v. Swepston High.
    
    The words of a deed, “ and I do hereby rent and lease unto the said Harman A. Johnson one hundred acres where he now lives, for the unexpired term of the general lease which I now hold, in trust for the use of my said daughter Nancy during her life, and to the said heirs of Harman A. Johnson after her death,” were kti.l to vest such a legal interest of the term in Hannan A. Johnson as to enable him to maintain an action of trespass to try titles, although the “said Haney” had been dead for several years.
    
      Before O’Neall, J. at Spartanburg, September, Extra Term, 1848.
    This was an action of trespass to try titles :
    The plaintiff was in actual possession of the tract of land on which the defendant had entered, cleared, and cultivated the fields constituting the trespass.
    In the adduction of his title, the plaintiff gave in evidence the following deed from Jesse Maberry, to him, dated 22d December, 1832, to wit: “ Know all men by these presents, that I, Jesse Maberry, for and in consideration of the natural love and affection I have and bear to my daughter Nancy Maberry, have bargained, sold and given, and by these presents, do bargain, sell and give unto my said daughter Nancy, one negro woman, named Sucky, and her child William, and one feather bed and furniture, to be held and enjoyed by her during her natural life, and in case of her decease without issue, with remainder to the children and heirs of Harmon A. Johnson, by his wife Susan, to be held and enjoyed by them in equal moieties forever; and I do hereby constitute and appoint the said Harmon A. Johnson a trustee for the person and property of my said daughter Nancy, with legal powers to cary into effect the purposes of this deed; and Ido hereby rent and lease unto the said Harmon A. Johnson one hundred acres where he now lives, for the unexpired term of the general lease, which I hold, in trust for the use,be7iefit and behoof of my said daughter Nancy during her life time, and to the said heirs of Harmon A. Johnson, after her death." The land thus leased, was half of a tract of land leased by the trustees of the Wadsworthville Poor School for 99 or 999 years: the defendant’s land was the other half of the same.
    There was no doubt that the land in dispute was clearly within the limits of the plaintiff’s deed.
    Nancy Maberry, the cestui que trust for life, has been dead for several years.
    Since this suit, the defendant bought from three of the children of Harmon A. Johnson their interests in the land. How many other children the plaintiff has, did not appear. The defendant moved for a non-suit, on the grounds:
    1st. That the deed recited, did not vest such an estate in the plaintiff, as enabled him to maintain this action.
    2d. That the use, on the death of Nancy Maberry, was executed in the children of the plaintiff, and that they alone could maintain an action of trespass to try titles. The motion was overruled. The Circuit Judge said, “ the interest conveyed is a chattel real — to that the statute of uses never applied, and therefore the legal estate is in the plaintiff, as trustee, even if the cestui que trusts in remainder were certain or determinate persons ; but it seems to me, until Mrs. Johnson be dead, it cannot be said who are the heirs of Harmon A. Johnson, by her. This uncertainty also prevents the execution of the trust. The deed, it seems to me, is a perfectly good lease to Harmon A. Johnson, and conveys to hitn clearly the legal interest in the premises for the unexpired term. The possession, too, was prima facie enough. Until defeated by a paramount title, it entitled him to recover.” The jury were told, according to these views, the plaintiff was entitled to recover the whole damages, and that the deeds from his children could not prevent it. In Equity alone could their rights be noticed. Independent of that, without a plea puis darrein continuance, they could not be noticed. The jury found for the plaintiff, the land and f>50 damages. The defendant appealed, on the annexed grounds.
    
      The defendant renewed bis application for a non-suit before the Court of Appeals, on the grounds taken below.
    
      Thomson and Tucker, for the motion.
    
      Bobo and Edioards, contra.
   Wardlaw, J.

delivered the opinion of the Court.

In argument here, the defendant conceding very properly that the statute of uses does not apply to a term for years, has contended that by the deed, which is copied in the report, the legal interest of the term was conveyed to H. A. Johnson (in trust for Nancy Maberry,) only pur auter vie, and that at the death of Nancy, the cestui que vie, it passed to the children of H. A. Johnson, (by his wife Susan,) then living.

Can there be, at law, by deed, any remainder limited of a term after the assignment of an interest for life therein?

If not, the plaintiff to whom the interest for life was assigned, became entire owner of the term.

If yea, however, and “ the said heirs of II. A. Johnson” do (as the defendant contends,) mean “ the children and heirs of H. A. Johnson by his wife Susan” — do not these “ children and heirs” mean children who shall be heirs, and so denote uncertain persons, who cannot be ascertained before the death ofH. A. Johnson?

If this be so, and only an interest pur auter vie was assigned to Johnson (which shall be held at law not to exclude necessarily any subsequent limitation of the term,) who is owner of the term at this time, intermediate between the death of the cestui que vie and Johnson’s death? H.as it passed to Johnson the first taker, like personal goods which have been assigned only for a short time to the first taker, with void limitations but without expectation of reverter; or has it returned to the assignor or his executor ?

If “ the said heirs of H. A. Johnson” can however be made to mean his children merely, and the limitation of the term to them after the life estate be good at law, — are the childien who were meant, the living children at the date of the deed, or those living at the death of Nancy, or all born and to be born of Johnson and his wife Susan ?

These questions have not been argued, and this Court does not find it necessary now to decide them. The statement of them, however, shews the propriety of holding, if possible, that this deed is what the settlement of a term should be — that is, the assignment of the whole chattel to a trustee, to whom the whole legal interest and ownership are transferred,- with the declaration of certain trusts which Equity will enforce.

The words employed in this deed shew that H. A. Johnson was appointed “ trustee to carry into effect the purposes of the deedthat the “unexpired term” was assigned to him; and that the trusts, as to this term, were for Nancy during her life, and after her death for “ the said heirs.” If then the persons be now ascertained, who were intended to enjoy after the death of Nancy, Equity will compel the trustee to admit them to present enjoyment. If they be not ascertained, none of the rules applicable at law to contingent remainders of freehold estates, will prevent Equity from dealing with this assignment of a chattel real, in such manner that the trustee shall be made to recognise the cestui que trusts whensoever they may be ascertained; and that if necessary, even the-shares of those who shall have been admitted to enjoyment,, shall be made to open and receive all who may afterwards become entitled under the deed to shares.

The legál interest of the term being then in the plaintiff, he was properly permitted to maintain this action.

The motion is dismissed. .

The whole Court concurred.

Motion refused.  