
    
      Mrs. S. Wilson vs. A. J. Pyron.
    
    1. Trover for a slave. C. S., in 1829, by a post-nuptial conveyance conveyed the slave in dispute, with others, to one R., in trust, to permit C. S. and wife, to receive the interest and emoluments arising from the property during their joint lives, and the life of the survivor, and from and immediately after the death of the survivor, then in trust to and for the “use, benefit and behoof of the issue of the marriage, if inore than one, as tenants in common and not as joint tenants, their heirs, executors, administrators and assigns, free, clear and absolutely discharged from all and any further trusts whatsoever.” .Deed recorded in the Secretary of State’s office the next day. C. S., in 1835, conveyed the slave to one P. J., through whom plaintiff derived her title: Defendant had married one of the chil'dren of C. S. and wife, both of whom were dead before the conversion. It was held, by 'the court, that on the death of C. S., who survived his wife, the property vested in the issue of the marriage, and that defendant was entitled to hold the slave in dispute as against the plaintiff.
    2. The question whether the deed of1829, was void, because not recorded in the office of the Register of mesne conveyance, not having been made on the circuit, nor contained in the grounds of appeal, nor admitted, the court refused to express any opinion on 'that point.
    
      Before Evans, J., Charleston, Spring Term, 1843.
    This was an action of trover for a negro, named Polly, taken from the plaintiff’s possession by the defendant. The slave was originally the property of one Charles Simons. On the 8th October, 1829, Simons, by a post-nuptial conveyance, conveyed this slave, and others, to oneRedheimer, in trust, to permit Simons and Rachael, his wife, to receive the interest and emoluments arising from the property, during their joint lives and the life of the survivor, “ and from and immediately after the death of the survivor, then in trust, to and for the use, benefit and behoof of the issue of the marriage if more than one, as tenants in common, and not as joint tenants, their heirs, executors, administrators and assigns, free, clear and absolutely discharged from all, and any further trusts, whatsoever.” This settlement was recorded in the Secretary of State’s office, the next day.— Simons and wife were both dead before the conversion, and Pyron, the defendant, had married one of the children of Simons and his wife. There were other children, all of whom were infants. There was another deed made by Simons, dated the 29th October, 1836, conveying his life interest in the property. After the deed of October, 1829, to wit: in 1835, Simons conveyed the slave to one Peter Joshua, through whom the plaintiff derived her title. Simons died in November, 1836. His wife died before. The presiding Judge was of opinion, and so charged the jury, that on the death of Simons, this negro became the property of the children of the marriage, by the limitation of the trust contained in the deed; that the defendant having married one of the joint owners, and having the possession of the slave, was entitled to keep the same as against the plaintiff, who had no title; unless the deed of 1829 was fraudulent as to the plaintiff, who was a subsequent purchaser. The action was trover, and by adopting that form of action, the plaintiff could not recover, unless she had a right of property, or a right of possession. The jury found a verdict for defendant, and the plaintiff’s counsel appealed on the following grounds:
    1. Thát the legal estate to the negro was in the plaintiff.
    2. That if the legal estate was not in the plaintiff, she still had the right to the negro Polly, by virtue of her possession against all persons but the rightful owners, and that A. G. Pyron, having no right to the negro, she was entitled to recover against him.
    
      Kunhardt, for the motion.
    The defendant claims title under the deed of 1829, against the conveyance (bill of sale,) made by Charles Simons, in his life time, to Peter Joshua, through whom the plaintiff claims. If the deed of 1829, is good, the plaintiff is admitted to have no title as against Redheimer, the trustee, under said deed. But it is contended that the deed of 1829 is void, as not having been recorded in the office of the Register of mesne conveyance, in pursuance of the Acts of the Legislature. If, however, the court should be of opinion, that, notwithstanding the Acts above referred to, the plaintiff’s title is not perfect, still it is contended, that she is entitled to recover against all parties, as being in possession of said negro, except Redheimer, the trustee under the deed of 1829. A party having the possession of a chattel, may maintain trover for its conversion against all persons but the lawful owner.— Cited Bone et al. vs. Hillen, 1 Con. Rep. Mill., 197 ; Vance vs. Reardon, 2 Nott & McCord, 299; 12 J. R., 406. Pyron had no property in the negro, as the trustee, Redheimer, had never consented to the delivery, which was necessary. Pyron vs. Mood, 2 McMull., 281, like an executor, he must consent to the delivery of the chattel to the legatee before the legatee has any property. Wilson vs. Riñe, 1 Harris & Johnson’s Rep., 139. Cited also, Carolina Law Journal, 297 ; 2 Hill’s Ch. Rep., 565; 1 Bailey’s Equity, 479.
    J. B. Thompson, contra,
    cited 1 Bailey, 230 ; 2 Hill, 597 • 1 T. R., 55, 7 lb., 9; 2Esp., 46; 1 Chitty’s Pleadings, 150.
   Oaria, per

Evans, J.

It will be perceived from the deed of Simons to Redheimer, that on the death of the survivor of Simons and wife, the negroes were to be held in trust, tó and “ for the use, benefit and behoof of the issue of the marriage, if more than one, as tenants in common and not as joint tenants, their heirs, executors, administrators and assigns, free, clear and absolutely discharged from all and any further trusts whatsoever.” If there could be any doubt arising on the first part of this clause as to who was the owner of the estate, after the death of Simons and wife, the latter words, “ free, clear and discharged” (fee., would settle the controversy. It seems to me, therefore, too clear to admit of any question, that on the death of Simons, the survivor, the negroes vested in the issue of the marriage, of whom Pyron’s wife was one. The question in the case of Pyron vs. Mood, 2 McMull., 281, arising on the same deed, involved' an entirely different question. In that case, Redheimer, the trustee, in the life time of Simons, and whilst the trust clearly existed, conveyed to Mood, and the question was whether this was an execution of a power given him in the deed by which he was created trustee.

During the life of Simons and wife, the legal estate was in the trustee, Redheimer. - The objects of the trust could not be obtained in any other way than by vesting the legal estate in him. The plaintiff claims under a deed from Charles Simons, and at most, could acquire no greater interest than was vested in Simons, who was only a cestui que trust for life. After his death she had no title whatever. But it is alleged in the second ground of appeal, that her possession, without title, was sufficient to maintain this action against the defendant Pyron. The authorities certainly sustain the position, that possession is prima facie title against all the world but the rightful owner, and for a disturbance of possession, whether of real or personal property, an action of trespass-will lie against all except the owner, but as against him no action will lie. 1 Const. Rep., 197: 2 N. & McC., 301.

In this case, Pyron, in right of his wife, was tenant in common, (to use the words of the deed,) with the other children of Simons and wife. He had, therefore, a right of property, which carries along with- it a right of possession, and is a higher title than a naked possession. In this court, it was contended that the deed of 8th October, 1829, was void, because it was not recorded in the office of the register of mesne conveyance. No such question was made on the circuit. It is not contained in the grounds of appeal, and the existence of the fact is not admitted on the other side. Under these circumstances, we think it improper to- express any opinion on that point. The case is decided as if no such fact existed.

The motion for a new trial is dismissed.

Richardson, O’Neall, Butler, and Wardlaw, JJ., concurred.  