
    COURT OF APPEALS, JUÑE TÍ3RM, 1821.
    Culver, Ex’r. of Kemp vs. Shriner.
    ai «ties ofI.BIWeimi s, in which SC agrees to coil" oeo^a? Si^rti'ty iii“ihciriíves* k Mid'bicepeiiib'e *th?fumrl X,m"b£ íSm,’ if sume amí not a grant, «nrt doe* ci«i give* S property Sit shell issue,
    Appeal frorii Montgomery county court. Replevin for two slaves. The appellee whs the plaintiff below. The ^ *■ H ^hmdaiit, (the appellant,) pleaded—1. Non cepit, 2. Property in himself as executor of Kcmp% and 3. Proper-in a stranger. The court below, (Bidgely, A. J.) direeled the jiiry, that the plaintiff was entitled to recover, ami on this direction he obtained a verdict and judgment; The defendant appealed to this criurt, The facts sufficiently appear in the court’s opinion. The case was argued at June term last, before Buchanan, EaRle, Johnson, and , r DcfliSKYj J.
    
      Stephth, for tbe appellant,
    relied on Jackson vt. Myehs, 3 Johns. Hep. 388. Jones vs. Barkley* 2 Bough 684^ 680* 690. 2 jVow. on Oo'nt. 2, 32, 40. 2 Johns. Bep. 2.0†. Campbell vs. Jones, 6 ’f. B. 570. Glazebrook vs. Wood-tow, 8 T. B. 370. Goodison vs. Nunn* 4 T. B, 761. 2 Bae. Ah. iü. Covenant, (L,) 92, 93. The Buhe of St. Al-
      
      bans vs. Share, 1 II. Bl!c. 270, 279; and Gallonel vs, Briggs, 1 Salk. 113.
    
      Taney and Schley, for the appellee,
    cited 3 Bac. Mb' tit. Grant, (F,) Ibid. (D,) 384. Grantham v. Hawley, Hobert, 132; and Negro Jack vs. Hopewell, decided in the court of appeals at May term 1784,
    
      Curia Mdv. Yuli.
    
   At this term the opinion of the court was delivered by

Jphnsqn, J.

The presentís an appeal from Montgomery county court, ip which the appellee, (the plaintiff below,) obtained a judgment.

It was an action of replevin, brought to recover two negroes from Henry Culver, who, as, the executor of Kemp, was in the possession of them; and whether that action was sustainable, depends on the true construction o.f certain articles of agreement entered into between Peter Kemp (the defendant’s testator,) and Shriner, the plaintiff below.

By the articles of agreement, bearing date the 4th February 1792, Kemp, who was seized in fee of a tract of land called Kemp’s Luck, containing 164 acres, on which was a valuable grist mill, and another tract called Strife’s Purchase, containing 156 acres, in the whole 320 acres, being indebted to sundry persons to the amount of 4600, and growing old and infirm, and having brought up from her infancy Eve the wife of Shriner, and being desirous to provide for her and her children, and to rid himself from debt, agreed to sell and convey the lands and mill to Shriner ip fee, as soon as Shriner paid to Kemp, or his order, £600. An additional consideration for this conveyance mentioned in the said agreement was, that Shiner should find and provide for Kemp, and his wife, and the longest liver of them, according to the following provisions, and agreements Kemp and wife, and thp survivor, to live in the upper story of the dwelling-house during life, to have the use of one third part of the garden, and to be supplied with necessary fire-wood, Shriner to pay Kemp £50 annually, and to find him and wife 300 weight of good pork, 152 of beef, 6 barrels of flour, 3 of Indian corn, &c, Kemp was also to keep two negroes on the place, one named Tom, the other Nancy, and Kemp also agreed, that all the increase of said Nancy, should she have children, should belong to said Shriner and his heirs.

In the same agreement, Kemp covenants to convey the lands mentioned in said agreement, and Shriner to comply with the stipulations the agreement imposed on him, And for the true performance of each and every of the articles, covenants and agreements, entered into by each party, each bound himself to the other in the penalty of ¡É5000.

, The suit was brought to recover from the possession of Culver, the executor of Kemp, the issue of Nancy, bora subsequent to the date of the above agreement.

The defendant, at the trial of the cause, prayed the court, that the covenant in relation to the increase of Nancy, relating to things not in esse, did not pass to Shriner any right of property, and that therefore the plaintiff was not entitled to recover. This opinion the court refused to give, and gave an opinion that the plaintiff was entitled to recover.

From that opinion the present appeal is made. From every part of the articles entered into between the parties, it is most eviden*, that each relied on the instrument of writing to compel a compliance with their respective stipulations. The one could force, or supposed 'he could force, a conveyance of the land on the payment of the stipulated sum; the other that he could compel the payment of the money for the land in case of refusal to pay; and Kemp thought he could resort to an action on the case for damages, in case any or every of the stipulations on the part of Shriner were not complied with. There can be no doubt that such was the obvious meaning of the parties, and that the agreement was expressed in appropriate terms to carry that meaning into effect as to every part of the instrument, except so far as relates to the claim respecting the two negroes now in dispute. For a violation, on the part of either, of any other part of the agreement, the remedy at law was either an action of debt for the penalty, or covenant.’ This is most clear and evident; and no satisfactory reason lias been given why, for such violation, a different; remedy exists.

The opinion of the court below can only be sustained on the principle, that instantly on the execution of the articles, the issuq that Nancy might have, potentially passed to Shriner? no matter whether an individual act was subse* quently done by either of them; that such issue mitst be the property of Shriner, no matter where or under what circumstances it might have been born. One would suppose that a clause of such import would not have been in - serted in an agreement so cautiously expressed to insure the mutual interest of the parties.

It is evident to a majority of the court,. that such was pot the intention, but that the right to claim the negroes depended on the fulfilment of the engagements by Shriner,

Let us suppose Shriner never did pay the money, and that Kemp remained in his original possession—nay further, that he did not and could not pay the money, and that he released himself from his engagement uipler the insolvent laws—would the negroes belong to him or his trustee? Sur.ely not. Let us suppose he did pay, and that Kemp and his wife took their station in the house, and that Shriner then refused to furnish the articles, and to permit them to keep Nancy on the place, and the issue was born off the land, could it be contended the issue belonged to Shriner? And yet to this extent must the articles be extended to sustain the opinion of the court below; for, from the bill of exceptions, not aii individual act stipulated to be done, appears to have taken place; from anything before the court, the transaction rested on the mere execution of the instrument.

"The clause in the instrument respecting the negroes is, t'Kemp is to keep”—that is, - (in connexion with the prior and subsequent parts of the articles,) agrees to keep. Again—“Kemp doth hereby agree that the issue (if any,) shall belong”—that is, shall, (other agreements having all been fulfilled,) become the property of Shriner; and such acts shall be done, as will make them his property.

But in support of the decision it has been contended, that as the unborn issue of female slaves can pass over by grant, and as the word? in the articles are sufficiently extensive to operate as a grant, although potentially only, yet on the birth of the issue, the complete property was in Shriner.

It appears to a majority .of the court, that that was never designed to be its effect by the parties, and that it ought ' not to have that operation, unless the court are compelled to say they passed as granted, and were not comprehended in the respective covenants.

The only case relied op as shewing that the property passed, is Grantham vs. Hawley, Hobert, 132. That case was this:—One Sutton being seized of land, leased it for 21 years to Richard Sankee by indenture, and did covenant% grant to and with Sankee, his executors and assigns, that it should be lawful for him to take and carry away to his own use such corn as should be growing on the ground at the end of the term. The lessor, Sutton, then conveyed the reversion to. the plaintiff, Grantham. The executor of the lessee, after the end of the term,, took the corn that wa,s growing on the land at the expiration of the term, and. sold it to Hawley, who gave his bond in the sum of £4.0, conditioned to pay ¿620, if the corn o.f right belonged to the plaintiff. In this case the plaintiff failed; and how was it possible for him to have succeeded? If the lessor, Sutton, could not, against his covenant and grant, claim the corn,’ neither could the person to whom he transferred the reversion, whether the right of the lessee to the com rested on the covenant or the grant. It would be extraordinary indeed, if when the lessee was by deed expressly authorised to carry away the corn to his use, that the lessor should still have had right to it, merely because it was not carried a~ way during the term.

There might be some analogy between the casern Hobert% and the one before the court, if it appeared that the contract had been complied with on the part of Shriner, that Nancy had been kept on the place, when the childi-en were born, and that Shriner had got a possession which Hemp’s executor sought to disturb. Then, in the language of the judges in that case, it might be said that the “property, and every right” to the issue, passed, for it was “both a covenant and grant. ” But as such a case is not before the court, the decision in Hobert is not an authority in point.

J>uch¿\nan, J. dissented.

JUDGMENT REVERSED.  