
    *Cleland v. Watson.
    
    July Term, 1853,
    Lewisburg.
    Deed of Personalty-Construction of — Case at Bar. —M, the father of D the wife of 0, executes a deed by which in consideration of natural love and affection for D, and for the further consideration of one dollar paid to him by D and 0, he grants to D for the use of herself and C, and their joint heirs, certain slaves. To have and to hold the said slaves to t> and C, their heirs, &c. And he warrants the title to D and C. This deed is duly recorded. The slaves go into the possession of C and his wife, and are held by them until C and D convey some of them to W; but there is no privy examination of D. G dies leaving D surviving him, who sues W for the slaves. Hisim:
    1. Same — Same—Same.—The deed conveyed to D and C a joint estate in the slaves.
    2. Personalty — Joint Estate In Husband and Wife —Right of ffusband to Dispose of. — The joint estate so conveyed to X> and 0, carried with it the right in the husband 0 to dispose of it absolutely, after the same had been reduced Into possession; and the deed to W was an exercise of the marital right of the husband G to dispose of said slaves; and the title passed by the deed to W.
    This was an action of detinue in the Circuit court of Marion county, brought by Dorothy Cleland against James D. Watson, to recover a number of slaves. On the trial the parties agreed the facts, and submitted the case to the court.
    By deed bearing date the 5th of May 1827, Morgan Morgan the father of the plaintiff, in consideration of natural love and affection for Dorothy Cleland the wife of John Cleland, as well as for the further consideration of one dollar to him in hand paid by the said Dorothy and John Cleland, granted to Dorothy Cleland, for the use of herself and her husband John Cleland, and their joint heirs forever, the following property, viz: Mentioning a number of slaves and other personal property. To have and to hold the said slaves and other property, unto his daughter Dorothy Cleland aforesaid, and her husband John Cleland, their heirs, executors, administrators and *assigns. And the said Morgan Morgan, for himself, his executors and administrators, the said slaves and other property did warrant and defend unto the said Dorothy and John, their heirs, &c. against the claims of him the said Morgan, his executors and administrators, and against the claim of all and every person or persons whatsoever. This deed was acknowledged by Morgan before two justices on the day of its date, and was admitted to record in the clerk’s office of the County court of Monongalia, in which county the parties then lived.
    The slaves conveyed by the foregoing deed went into the possession of Cleland and wife, and remained in their possession until the 17th of February 1831, when by a deed of that date Cleland and wife conveyed them to James D. Watson. Though this deed was executed by Mrs. Cleland she does not appear to have been privily examined. The slaves sued for are either slaves mentioned in this deed or their descendants. Cleland died in January 1849; and after his death this action was instituted by Mrs. Cleland. There were other facts agreed; but they are not important upon_ the question decided by this court.
    The Circuit court rendered a judgment in favor of the defendant; and thereupon the plaintiff applied to this court for a super-sedeas, which was allowed.
    Price, for the appellant, made the following points:
    1st. That the deed from Morgan having been recorded, was notice of its contents to Watson; and his requiring Mrs. Cleland to join in the deed to him shows that he had actual notice. That Watson therefore stood in the same condition as Cleland or his representatives would have stood. He referred to Sugden on Vend. 723, notes C and 2.
    2d. That the purpose and object of the deed was to give to Mrs. Cleland a separate interest in the slaves, free from the marital rights of the husband. And if *the husband had any title, it was as a mere trustee; and such title was not to be set up against the cestuis que trust. Robinson v. Brock, 1 Hen. & Munf. 212; Smith v. Smith, 6 Munf. 581; Goodtitle ex dem. Hart v. Knot, 1 Cowp. R. 43; Scott v. Gibbons, 5 Munf. 86.
    3d. That where there is the intention of the donor to give a separate estate to the wife, the marital rights of the husband will not be allowed to defeat it. Smith v. Smith, 6 Munf. 585; Lewis v. Adams, 6 Leigh 320.
    4th. That the bill of sale from Cleland and wife to Watson was void as to her; a feme covert having the powers of a feme sole only so far as the power is given her by deed or will. Blanton v. Taylor, Gilm. 209; 2 Tuck. Bl. 444, note 21; Elwin v. Williams, 13 Simon’s R. 309; Ashby v. Ashby, 28 Eng. Ch. R. 549; Methodist Church v. Jaques, 3 John. Ch. R. 77.
    5th. That the right of action survived to the wife. Brown on Actions, 176, 20 Law Libr. ; Crossman v. Reade, Croke Eliz. 114; Comyn’s Dig. title Baron & Feme, 218; May v. Boisseau, 12 Leigh 512; Phillish v. Pluckwell, 2 Maul. & Sel. 393 ; 2 Tuck. Com. 213.
    Fry, for the appellee, insisted:
    1st. That the legal effect of the deed from Morgan to Cleland and wife was to vest the property in them jointly. That in the premises of the deed the consideration was stated to move from the husband as well as the wife; and so the use was to him as well as to her. That there was no. difference between the grant of the use of a thing and a grant of the thing itself. Coke Litt. 4 b ; Parker v. Plummer, Croke Eliz. 190; Tothill v. Pitt, 1 Madd. 264, 273. That this is especially so as to chattels; and that the grant of the use to the husband and wife and their joint heirs, is an absolute estate. Haskins v. Coalter, 2 Porter’s R. 471; Deane v. Hansford, 9 Leigh 253; Goodwin v. Taylor, 4 Call 305; 2 Black. Com. 113; Coke Litt. 20; Tothill *v. Pitt, 1 Madd. R. 264, 275; Fearne Cont. Rem. 463, 465; Earl of Chatham v. Tothill, 7 Bro. Par. Cas. 453. So in the habendum of the deed, it is to the wife and her husband and their heirs, &c.: and the habendum, may vary the premises, 2 Black. Com. 298; Coke Litt. 7 a, 21 a, notes 1 and 2; 183 a, 183 b; Wheadon v.- Sugg, Croke Jac. 372; Brooks v. Brooks, Id. 434; Samme’s Case, 13 Coke R. 54, 466: and the warranty is to the husband and wife.
    2d. The grant carried the estate to the husband and wife, and vested the jus dis-ponendi in the husband. This is clearly so if given to the wife alone, and when he takes it into possession it is his; and it cannot be otherwise when given to both. In a grant of chattels to husband and wife, they pass to husband’s executor, and do not survive to the wife. 3 Bac. Abr. 674; 43 Edward 3, 10; Rolle’s Abr. 349. Husband jointly possessed of a leasehold interest or other personal thing may dispose of it in his life time without the consent of his wife. Rolle’s Abr. 343; 5 Bouvier’s Bac. Abr. 244; 3 Wilson’s Bac. Abr. 674. And on similar questions, see Grute v. Locroft, Croke Eliz. 287; Sym’s Case, Id. 33; Siter, Price & Co. v. McClanachan, 2 Gratt. 280.
    3d. If a separate estate was conveyed to the wife, she had the power of a feme sole over it; and by joining in the deed to Watson she parted with her interest in the property. West v. West, 3 Rand. 373; Viz-onneau v. Pegram, 2 Leigh 183; Fittiplacé v. Gorges, 1 Ves. jr. R. 46; S. C. 3 Bro. Ch. Cas. 8; Wagstaff v. Smith, 9 Ves. R.' 520; Sturges v. Corp, 13 Id. 190; Major v/ Lansley, 13 Cond. Eng. Ch. R. 73; Jaques v. Methodist Episcopal Church, 17 John. R. 548; Long v. White, 5 J. J. Marsh. R. 226.
    
      
       For monographic note on Husband and Wife, see end of case.
    
    
      
       The principal case was cited in Graham v. Graham, 10 W. Va. 382; Coatney v. Hopkins, 14 W. Va. 361.
    
   ALLEN, J.,

delivered the opinion of the court.

The court is of opinion, that according to the legal effect and true construction of the deed of Morgan ^Morgan,dated the 5th May 1827, a joint estate was conveyed to John Cleland and Dorothy his wife. There is nothing on the face of the deed to show that the husband was not the object of the grantor’s bounty, as well as the wife. The property is granted to his use as well as to hers; and by the habendum the said Dorothy and her husband were to hold the property to them, their heirs, executors, administrators and assigns forever; and the warranty of title was to the said Dorothy and her husband, their heirs, executors and assigns; thus showing an intention by the premises, the habendum and warranty, to vest in both a joint benefit, to be held by a joint title, secured by a warranty to both jointly.

The court is further of opinion, that the joint estate so conveyed to the wife and her husband, carried with it the right in the husband to dispose of it absolutely after the same had been reduced into his possession ; and it appearing from the facts agreed that the slaves named in the deed from Morgan Morgan to said Cleland and wife, passed into the i)ossession of said Cleland and wife, according to said deed of the 5th May 1827, where they remained until the execution of the deed from Cleland and wife to the defendant in error, when those named in the deed to the defendant in error of the 17th February 1831, passed into his possession according to the deed to him.

The court is of opinion, that the conveyance of the 17th February 1831 was an exercise of the marital right of the said John Cleland to dispose of said slaves; and the title thereto for the interest conveyed by said last mentioned deed, passed to and vested in the defendant in error.

The court is therefore of opinion, that there is no error in said judgment, and the same is affirmed, with thirty dollars damages and costs.

Judgment affirmed.  