
    McCall v. White.
    A father in the State of Mississippi, in consideration of natural lore and affection executed a deed to a slave in favor of his daughter, a married woman. The deed contained the following clause u To have and to hold the said negro to her [the daughter] and heirs and assigns forever, preserv ing to myself, however, and it is hereby expressly understood, as a part and parcel of the present that the said negro shall be and remain with me and subject to my control during the term Of my natural life, without subjecting myself, my heirs, &c., on account of services or hire of the said slave.” The daughter died. The father and his son-in-law removed to Louisiana and lived together, until the death of the father, some years after. The son-in-law then, sold the slave which had been conveyed to his wife, and her children set up their claim, as heirs of their mother against the purchaser. Held: At the instant of the execution of the deed the title and possession in the slave vested in the daughter, whose husband, in virtue of such transfer of the title and possession to his wife during marriage, became the owner of the slave, subject to the loan for service to the father during his natural life, and after the death of his wife and his father-in-law, the husband had a right to sell the slave.
    from the District Court of Caddo, Land, J.
    Looney, for plaintiff and appellant:
    Fee simple must be vested in some person. If in the wife, upon the execution of the act, it could not be in the husband until actual possession. The wife died leaving plaintiff heir of her body in 1836. The husband could do no act either as husband or as administrator until 1846, in order to vest title in him.
    Then in whom was the title vested in fee simple from the death of the wife in 1836, until the possession of the husband personally in 1846 ? It cannot have been in the husband without possession or even a right of possession. It then must have fallen to the heirs of the wife at her death by regular descent, according to the law of Mississippi. See Hutchinson’s Miss. Code 623, 624.
    
      Grain & Nutt, for defendant:
    The husband had an absolute power over any personal estate or interest accruing to the wife by gift, devise or otherwise. Bacon’s Abridgment (Baron & Eemme D.) And after her death his right was not only to administer but to enjoy exclusively the personal effects of the deceased wife Jure marito, 2 Blackstone’s Com. 516. Mr. Justice Spenser, in the case of Whitaker v. Whitaker, 6 Johnson 118, says “that there is not an authority to be met with contradicting these well and clearly established principles.” These principles have been recognized in Mississippi — 1 Howard. 558, Lowery v. Hits-ion, 3 Howard 349, and 4 Howard 214 — and in every common law State, where the question has been discussed.
    If it were true, as the plaintiffs contend, that the interest of their mother its the slaves was merely a chose in action, and would have survived to her in case her husband had died first, it would not avail the plaintiffs. The right of survivorship in ehoses in action which have not been reduced into possession by the husband, is personal to the wife and cannot be invoked in this case, 2 Kent 136, 411, 412, notes and authorities cited.
    In Knight v. LeaLe, 2 Dev. & Battle, N. 0., it was held that “ that the huS' band Jure maritali has such a dominion over the vested legal interest of a wife in a chattel, real or personal, of which a particular estate is outstanding,, that he can sell such interest.” See also Merriwether v. Booker, 4 Littel 25.6,, in which it was ruled that the husband could sell any vested reversionary interest, and in Pinlcerd v. Smith, 1 Lit. Select Oases, that a vested remainder in slaves accruing to the wife during coverture vests in the husband as mush as a right in possession. See also Badev. Alexander, 1 Wash. 30. JaeJcsonv. Sublett, 16 Munroe 467. The husband by survivorship was entitled to the negroes to the exclusion of the children, even if they had been the separate-property of the wife.
   Buchanan, J.

Plaintiffs claim two undivided sixth portions in ten slaves as heirs of their mother, deceased.

Defendant sets up his title to the slaves by purchase from Thomas MeGall, the father of plaintiffs. And he pleads that the said Thomas MeGall became the owner of said slaves, by virtue of a deed of gift from Isaac Souneeval to the wife of said Thomas MeGall, on the 18th day of June, 1885.

The evidence shows that Thomas MeGall and Ga/roline Souneeval were married in Franklin county, Mississippi, in the year 1816. They lived together as man and wife in the same county until 1886, when Mrs. MeGall died.

There were born several children of this marriage, of whom the plaintiffs were two. During this marriage, to wit, the 18th June, 1835, Isaac Rounci-val, father of Mrs. MeGall, made a writing under seal, acknowledged before a Justice of the Peace, of Franklin county, and recorded, by which he gave, granted and sold to his said daughter, in consideration of natural love and affection, a certain negro woman named Many, about twenty-four years of age, “ to have and to hold the said negro unto her and heirs and assigns forever, preserving to myself, however, and it is hereby expressly understood, as a part and parcel of this present, that the said negro shall be and remain with me, and subject to my control, during the term of my natural life, without subjecting myself, my heirs, &c., on account of services or hire of the said negro.”

In the following year, 1836, Mrs. MeGall died, and her surviving husband, with his family, immediately thereafter, moved into Louisiana, where they have resided ever since. Mr. Isaac Souneeval, the father of Mrs. MeGall, also moved into Louisiana, with his slaves, (those claimed in this suit included,) and lived with his son-in-law and grandchildren until his death, which took place in 1846.

The slaves claimed herein are Mary, who is mentioned in the above recited deed of gift, and her increase, being nine children, ranging from 21 to 3 years of age.

The deed signed by Souneeval, under which both parties claim, having been made in Mississippi, where all the parties lived, must have effect according to the law of Mississippi.

The counsel for defendant argues, that this deed creates what in the common law of Mississippi is called a life estate in the grantor, with a remainder over to Mrs. MeGall; and that as slaves are chattel property in Mississippi, and this estate in remainder was a vested right in Mrs. MeGall from the moment of the grant, the remainder in the slave inured at once to the benefit, and became the property of Mrs. Me Gall's husband, under the general principles of the common law. To this the counsel of plaintiffs reply, that the right of Mrs. MeGall in the slave Mary, under the deed was a chose in action, and that marriage is only a qualified gift to the husband of the wife’s choses in action. viz: on the conditon that he reduce them to possession during the continuance of the marriage, or if he survive his wife, that he administer on her effects, (Marcenaro v. Bertoli, 2 An. 981.): neither of which has been done in this case.

We have been much assisted in the investigation of the law in this case- by the learned opinion of our brother of the District Bench. Still, as the case arises under a system of laws with which we are not very familial', we cannot express our opinion upon it except with hesitancy.

We recognize the principle contended for by the plaintiffs’ counsel, that at common law the husband has, by virtue of the marriage, only a qualified right to the dioses in action of his wife, and that as a general rule this principle extends also to reversionary interests in things personal.

But we understand the principle to apply only to those cases in which the wife has not been vested with the legal ownership and possession at anjr time during the marriage: as where the legal title to personal property, to which the wife may be entitled by distribution, has remained in the executors and administrators after the death of the testator or intestate; or where the personal property has been conveyed directly to one for life, and remainder over to the wife. In this last case we suppose (in some of the States at least,) that the person taking the life estate would be decreed by the Court to act as trustee, in order to protect such remainder; for in a personal chattel the absolute conveyance of a life estate would, we think, so far vest the legal title and possession in the first taker, as to make him the proper person to protect such residuary interest of any other party, as might lawfully be limited by the vendor or donor.

An examination of the instrument in this case, however, leads us to think that by its execution, eo instanti, the title and possession in said slave Mary, vested in Mrs. Caroline Me Gall, the mother of the plaintiffs ; that the husband by virtue of such transfer of the title and possession to his wife during the marriage became the owner of said slave, subject to the loan for service to Isaae Sounceval during his natural life.

The words used in the instrument are: “ In consideration of the natural love and affection I have for my daughter, Caroline McCall, wife of Thomas McCall, I have given, granted and sold and by these presents do give, grant and sell unto her, the said Caroline, a certain negro woman named Ma/ry, &c., to have and to hold the said negro unto her and heirs and assigns forever, preserving” &c.

This deed having been executed under seal, by the law of Mississippi operated as an absolute bar and estoppel to Isaac Sounceval, and to all persons claiming through him, to controvert or gainsay anything contained in it, and precludes them from saying that all the consequences which flow from a sale, and particularly the transfer of property and possession, was not a consequence of said act.

We think, therefore, that the sale of the negress clearly resulted from the instrument, notwithstanding the reservation of the services and hire of the slave to Isaac Sounceval, and that Thomas McCall was authorized, at least after the death of his wife, and the termination of the lease or loan for service, to take possession of the slave Mary, and her increase, as owner, and convey them to whomsoever he pleased.

We think that had Isaac Sounceval abused his right as bailee or lessee of the slave, (even during the life-time of Caroline Me Call), that Thomas McCall could have caused the lease to be declared at an end.

So, if any third party had killed said slave or removed her beyond the jurisdiction of the Courts, Thomas McCall could, as the legal owner, have brought his action to recover damages for such injury.

It is therefore ordered, adjudged and decreed by the Court, that the judgment of the lower Court be affirmed, with costs.  