
    Chisholm v. Starke and Others.
    [Tuesday, April 28, 1901.]
    Life Interest in Slaves — Sale by Life Tenants — Bona Fide Purchaser — Security for Return — Case at Bar.— A. devises slaves to his wife for life, remainder to his children. The wife marries B. who empowers C. to sell the slaves. C. does sell them to D. who was ignorant of the right of those in remainder; and D. sells them to E. If the remainder-men bring a bill of quia timet against B. D. and E., the Court will decree B. to give security for the forthcoming of the slaves, [and their increase,] at the death, of his wife; bnt, as D. was a purchaser without notice, he will not he compelled to give such security.
    This was an appeal from the High Court of Chancery. The bill states, that James Underwood, the father of the plaintiffs Ann Starke and Martha Underwood, who live in the City of Richmond, died in 1773, having first made his will, and thereby devised, as follows: “I lend to my loving wife Ann, the use, labour, and profits of one third of my slaves, during her natural life ; my will and desire is that the dower slaves of my loving wife Ann (meaning the third lent to her as aforesaid) may be equally divided at her decease amongst all my children.” That the said Ann took possession of a third part of the slaves, which have greatly increased; but, through the severity of her, and her second husband, William Richardson, (of Hanover county,) they are reduced to three: That the said Ann is consumptive, and Richardson in danger of insolvency; and that, conscious thereof, he has frequently endeavored to sell the slaves as his absolute property. In pursuance of which, he empowered Burnett to sell one, by the name of Judy. That Burnett sold her to Chisholm, who lives át a great distance up the country, for SOI. the estimated value of the full property of such a slave. That Richardson has attempted to sell others; and pretends, that the increase of the slaves is his. The bill, therefore, *prays, that Richardson and Chisholm may give security for the forthcoming of the slaves, at the death of the said Ann; and for general relief.
    The answer of Richardson and wife, admits the will, but denies the severity; states, that the defendants thought, until now, that the increase was their’s, as part of the profits of the slaves; but submits the construction of the will to the Court. Admits the sale of Judy; but it was only meant to sell the right of the defendants; and, if more was done through mistake, the plaintiffs cannot complain, as-after this discovery, they may recover of Chisholm : Insists, that no security ought to be decreed.
    The answer of Chisholm states, That, in April, 1796, Burnett came into the defendant’s neighborhood, (about 40 miles from Richardson’s,) and sold the slave Judy for SOI. (which is her full value,) to the defendant, under a power from Richardson; whom, the defendant then supposed to be the true owner. That afterwards, and before the defendant had the least intimation of the suit, (if it were then commenced,) he sold the said slave to Peebles, for 601.
    There are in the record, Richardson’s power of attorney; Burnett’s bill of sale; and a copy of Underwood’s will, which contains the above recited clause exactly, but in a latter part thereof, the testator devises the slaves to be equally divided, at his wife’s death, among all his children, and Anna Underwood. The cause was heard, by consent, on the bill, answers, and exhibits; but the replication does not appear to have been withdrawn.
    The Chancellor decreed, thar. Richardson should give bond in the .penalty of S001. ; conditioned for delivering to the plaintiffs, the slaves in his possession, and their increase, living at the death of the defendant, Ann his wife. And that Richardson and Chisholm should give bond, in the penalty of 5001. for delivering Judy and her increase.
    *Rrom this decree, Chisholm appealed to this Court.
    Call, for the appellant.
    Peebles ought to have been a party; because his title was drawn into question, and it -was in his power to have produced the slave, but Chisholm could not. Chisholm acted innocently, and committed no fault; for he did not know of the plaintiff’s claim at the time of his own purchase, or of the sale, which he afterwards made to Peebles; and, therefore, he ought not to be put to unreasonable inconvenience. Under the circumstances, he is liable for nothing; but, at most, it can only be for the value at the time of the sale.
    Randolph, contra.
    There was danger that the property might be eloigned; and, therefore, the bill was proper. The notice is not positively denied ; and the will was recorded, which was constructive notice. If a man once had possession of another’s property, he is liable to detinue. Burnley v. Lambert, 1 Wash. 308: And, therefore, equity, where detinue cannot be immediately brought, will oblige him to give security for the forthcoming of the property. The argument on the other side, would lead to an infinity of suits.
    
      
       Life Interest in Slaves — Security for Return. — See principal case cited in Frazer v. Bevill, 11 Gratt. 18, 19; and note; Amiss v. Williamson, 17 W. Va. 679; Houser v. Ruffner, 18 W. Va. 252, 253; Bartlett v. Patton, 33 W. Va. 74, 10 S. E. Rep. 22.
    
   PER CÜR.

The Court is of opinion, that there is error in so much of the said decree as orders the said William Richardson, and the appellant, to seal and deliver an obligation for the delivery to the appellees of the slave Judy named in the answers, and the increase of the said Judy, of such of them as shall survive' the said Ann Richardson, the appellant having stated in his answer, which is not disproved, that he was a fair purchaser for a valuable consideration, without notice of the title of the ap-pellees, and had sold the said slave Judy before suit brought, or any notice of the appellees’ claim to, or interest in, the said slave. Therefore, it is ' decreed and ordered, that so much of the ^decree aforesaid as is herein stated to be erroneous, be reversed and annulled; that the said William Richardson do with surety seal and deliver an obligation in the penalty of five hundred pounds, payable to the appellees, their executors, administrators, or assigns, with condition that the said slave Judy and her increase, or such of them as shall survive the said Ann Richardson, shall be delivered to the appellees, or their executors, administrators, or assigns; that the appellees’ bill be dismissed as to the appellant; that the residue of the decree aforesaid be affirmed; and that the appellees pay to the appellant his costs.  