
    Ingram vs. Porter.
    A father by deed of gift gave to his daughter a slave “ to hold &c. after his death.” Held that the right of property vested immediately in the daughter, and her right barred by the statute of limitations, during the life of the father.
    A future interest in a chattel, opposed to the present interest in the grantor, cannot be created.
    Where the habendum of a deed is wholly inconsistent with the premises, so that they cannot stand together, the habendum must be considered as void.
    The doctrine of covenants to stand seized stated.
    A paper sometimes in form of a deed, may be considered a will.
    Delivery of a deed to a proper officer to record, is such a delivery as consummates the deed.
    This was an action of deblinue for a negro slave. The plaintiff claimed under a bill of sale from Jos. Ingram, who purchased the negro in Dec. 1809, in North Carolina, from Daniel Porter, and sold to thei plaintiff 10th April, 1810, who had possession until March 1820. Daniel Porter died in 1820. This suit was commenqed soon after. The defendants claimed under a deed of gift from Daniel Porter to his daughter, the wife of defendant. This deed was executed the 20th Feb. 1802, and recorded in the Register’s Office of North Carolina. The witnesses to this deed were dead, the original' had been destroyed and an office copy was given in evidence; but no proof of the delivery of the deed was made out. Daniel Porters’ daughter at the time was quite a child living with her father. This deed was in the following words:
    “ To all to whom these presents may come, I, Daniel Porter, of the state of North Carolina, and county of An-son, send greeting. Know ye, that I the said Daniel Porter, for and in consideration of the natural love and affection, which I have and bear unto my beloved daughter Phoebe Porter, of the state and county aforesaid, and divers other good causes and considerations me thereunto moving, have given and granted, and by these presents do give and grant unto tbe said Pboebe Porter, rall and singular, one negro girl named Rose, to have hold and enjoy all and singular the said negro girl, Rose, after my death to the said Phoebe Porter, her heirs, executors, and assigns, to the only proper use and behoof of her the said Phoebe Porter, her heirs and assigns forever, and I the said Daniel Porter all and singular the said negro girl Rose to the said Phoebe Porter her heirs, executors, and assigns, against all persons whatever shall and will warrant and forever defend by these presents. In witness whereof I the said Daniel Porter, have hereunto set my hand and seal this 26th February, 1802.”
    The defendant contended that the deed gave only a life estate to Porter, remainder in fee to his daughter, and that the deed was valid.
    The plaintiff replied that the deed was fraudulent, that it was also void from the nature of it, and that if it were valid that the plaintiff had a legal right under the statute of limitations.
    The case was tried before Huger, J. who charged the jury in favor of the deed, and for the defendant on all the grounds. The jury found a verdict for the defendant, and the plaintiff appealed.
    
      Brickell and M’ Cord.,for the appeal.
    This paper may be regarded as a testamentary paper; if so, it was revocable, and actually revoked by the subsequent sale. 1 Phil-limore 242. There was no proof of the delivery of the deed. Nothing to consummate the contract. 2 Black. Com. 306, 441. As to the statute of limitations they cited 1 Brev. 170. 2 Seh. and Lif. 628. The limitation in the deed was also void under the authority of the cases of Vernon vs. Inabnet, 3 Brev. MS. R. 380, and Cooper vs. Cooper lb. 320.
    The deed was also fraudulent and void against a purchaser without notice from the donor.
    
      
      Bauskett and Gregg, in reply.
    The deed was recorded. That was sufficient evidence to raise the presumption of a delivery. They contended that the deed was valid, and that the verdict should be supported.
   Curia, per

Cojdcock, J.

This case has been detained by the court for a long time, in the hope that a decision which is said to have been made by the constitutional court, on a case bearing a strong analogy to this, would have been procured. But as it cannot be had, we must decide the case.

In the former opinion the court did not determine how the daughter would take under the deed, but only generally that they were of opinion she had an interest under the deed, and from all the circumstances of the case we entertain the same opinion. Where the habendum of a deed is so wholly inconsistent with and repugnant to the premises, so that they cannot stand together, the habendum must be considered as void, and if the premises pass any thing the grantee shall hold. Now in the first part of this deed the property is given absolutely and in presentí.— The habendum after the death of the father is utterly inconsistent with the present interest, and therefore cannot take effect. Delivery is indispensable to the completion of a deed, and in this case the delivery to the officer to be recorded for the benefit of the daughter, may be considered as a sufficient delivery. And thus an absolute right in the negro may be considered as passed to the daughter. But under the circumstances such an interest would not benefit the defendant, and therefore it was contended that this deed may be considered as conveying a future interests to the daughter, the property to be held in the mean time by the father. It was urged that the obvious intention of the party ought to be effectuated if possible, and that it had been held in cases like the one before us, that such a deed of real property though not good as a bargain .awl sale for the want of a consideration, nor as a release for the want of a lease for a year, nor as a feoffment for the want of livery, yet should be held good as a covenant to stand seized, and that by analogy this might be considered as giving the right to the daughter and making the father trustee for life, or to the daughter as trustee for the father for his life. But this cannot be done, for the rules of law in relation to the alienation of real property, are essentially different from those which relate to personal. When it is said the deed must operate if it can, it is meant if it can consistently with the meaning of the parties, as regulated by the rules of law. It is not intended that the plain and obvious meaning of words are to be entirely changed, and that those wills which are peculiarly applicable to one subject are to be applied to another, for this would in effect be making a deed and not construing one. Now such a deed conveying land has been held to operate as a covenant to stand seized, by the operation of rules exclusively applicable to real estate. The grantor conveys an interest reserving a use, and by the statute of uses that use is converted into possession, and he is in holding for the grantee. 4 Mass. 135. But this statute relates entirely to lands, and cOuld not in the nature of things be applied to personal property, for the possession of that is always prima facie evidence of ownership; whereas in those days in which these rules of law, as applicable to real property, had their origin, the possession of it was for the most part in those who did not own it, and those who possessed as well as those who owned it, were subject to a great many services and duties which it was the object of the statute to secure. But even in relation to land, where one has a personal right in it, such a deed would pass a present and absolute right to the grantee. That is, all the right of the grantor. Coke says, if Termor grant the unexpired term, habendum after his death, it passeth : for one cannot be tenant to a dead man. The idea is clearly-expressed that a future interest in a chattel, opposed to-the present in the grantor, cannot be created. If given it passes at once. If not given, of course it cannot pass, but must depend on the future will of the grantor. Such á deed as this found among a man’s papers, who died in the possession of the property given, might perhapsunder circumstances be considered a will.

If it were possible to consider this as á covenant between the parties,, the father by a sale has broken his covenant, and that might give the daughter a right of action, but could not give her a right- to the property in opposition to that of the purchaser.

The case must be considered as at an end, for the property being absolutely vested in the daughter by the deed, she is barred by the statute of limitations, and this renders it unnecessary' to say any thing on the other grounds taken in the brief; and the same result would follow if the daughter took nothing by the deed. The plaintiff must recover. From my best recollection of the case of M’Michael and Inabnet, álluded to in the first part of this opinion, it was in some respects like the case before us, except as to the delivery.

New Trial granted. 
      
      
         See Harper’s L. R. 492.
     