
    Bush v. Martins.
    March, 1836,
    Richmond.
    (Absent, Brooke, J.)
    Chancery Jurisdiction — Right to Resort to Equity to Settle Title to Slaves. — A party in possession of slaves, and claiming them by the former owner’s absolute gift in his lifetime, cannot come into equity to be quieted in his title against the donor’s executory legatee, to whom the slaves are bequeathed in the event of the claimant’s death without leaving issue.
    Appeal from a decree of the superiour court of chancery of Staunton. The bill was exhibited by John Bush; and it set forth, that in June 1821 he married Elizabeth the daughter of Azariah Martin of Nelson county; that, in August following, Martin made an absolute gift to the plaintiffs wife of five slaves, and sent them to the plaintiff’s house in Augusta; that the plaintiff received them as an absolute gift, otherwise he would not have received them ; that Martin died in 1824, leaving a will which was proved and recorded in the same year, and by *which he bequeathed the same slaves and their future increase to the plaintiff’s' wife, if she should leave a natural heir of her body, then to her and her natural heirs, but if she should leave no issue at her death, then that the slaves and their increase should be sold, and the proceeds divided equally among the testator’s sons and daughters; that the plaintiff could now prove, by living witnesses, the absolute gift of the slaves by Martin to his wife, in August 1821, when they were put into the plaintiff’s possession ; and that, therefore, Martin had no Tight to make any such disposition of them, as he had made, by his will. The bill, therefore, made the sons and daughters of the testator Martin (the executory legatees to whom the slaves in question were given by his will, in the event of the plaintiff’s wife dying without leaving issue) defendants ; and prayed, that the plaintiff might be quieted in his title to the slaves; or, if that was not proper, that his testimony should be perpetuated.
    One only of the children of Martin answered, disclaiming all knowledge of the alleged absolute gift of the slaves, by Martin to the plaintiff’s wife, in August 1821; and objecting, that even if the plaintiff should prove the gift, he was not entitled to the relief he prayed ; namely, to be quieted in the absolute title he claimed. As to all the other defendants, the bill was taken pro confesso.
    The plaintiff took and filed the depositions of three witnesses, to prove the gift by Martin to his wife, in August 1821, under which he claimed the absolute title to the slaves.
    The chancellor decreed, that the bill, so far as it sought relief, should be dismissed; and declaring, that so far as the bill sought to perpetuate testimony, it was proper to entertain it, but as the defendants had examined no witnesses on their part, the plaintiff must bear the whole costs of the proceedings, he decreed, *that the testimony of the plaintiff’s three witnesses should be perpetuated, as evidence in relation to the title claimed by the plaintiff in the bill; and that the plaintiff should pay the defendant who answered, his costs. The plaintiff appealed from the decree to this court.
    Johnson, for the appellant,
    endeavoured to distinguish this case from the case of Randolph v. Randolph, 2 Leigh 540. There was no counsel for the appellees.
    
      
      Chancery Jurisdiction — Settlement of Legal Claims. —On this question the principal case is cited in foot-note to Lange v. Jones, 5 Leigh 192.
    
   CARR, J.

I think there can be no sound distinction taken between this case and that of Randolph v. Randolph. The principle there decided, is, that the court has no jurisdiction to call before it a remainder-man whose right may never coihe in esse, at the instance of a person in possession, and claiming a right adverse to his. Here, the husband in possession of certain slaves, insists that they were given absolutely to his wife by her father. The father made a will, by which he gave the slaves to this daughter for life, but if she should die with out leaving issue at her death, that they be sold and the money divided among his other children. The husband files this bill (his wife being still alive), making her brothers and sisters defendants, and calling on them to discuss the question, whether these slaves passed by the alleged gift, or by the will? Is not this calling on them to discuss a title which may never come in esse? Suppose the wife should leave issue, do not all agree that the title of the husband will become perfect, and all interest in the remainder-men at an end?

I have again examined the cases on which this court relied in the former decision ; and they seem to me decisive. In Devonsher | v. Newenham, 2 Scho. & Lef. 197, lord Redesdale reviewed all the cases, and shewed with great strength the reasons against entertaining such suits. After stating the circumstances of the case before him, and the purpose of the suit, he said—"Now, no such suit has ever been entertained as far as I can *find; and it would be most dangerous to give the example of entertaining' such a suit. Wherever one person claims title against another who is in possession, and the enjoyment of that person is disturbed, and he is put into a situation where he cannot have that enjoyment, as he ought in conscience to have it, — these are cases, where, for the purpose of quieting the possession, a suit is entertained. For example, where several ejectments have been brought in succession, and a bill is filed to quiet the possession, a suit is entertained. But when the question is merely whether A. or B. is entitled to the property, and there has been no actual suit between them, there is no instance where a bill has been entertained.” He cites Pelham v. Gregory, 3 Bro. P. C. 204, where lord Northington dismissed the bill, giving this as a reason, “that they (the defendants) being remaindermen after the death of the duke of Newcastle, if he should die without issue, their claims were not within his cognizance to determine, and the plaintiff had no right to bring them into discussion in a court of equity.” This decision was affirmed in parliament; that house agreeing with the chancellor (says lord Redesdale) that a party has no right to bring remaindermen before the court to bind their rights &c. merely to clear the plaintiff’s title. And lord Redesdale proceeds— “I take this to be decisive authority; and if the books were searched, I have no doubt many other cases might be found, where bills have been dismissed on this ground. I apprehend the court is bound to see that the parties before it are parties whom it ought to bind by its decree: but on what ground could the court put the remainder-man in this case to litigate his title? — The plaintiffs in this suit, have no right to make this defendant litigate a title with them, which may never be beneficial to him.”

I am for affirming the decree.

BRO CKENB ROUGH and CABELL, J., concurred.

*TUCKER, P.

The case of Randolph v. Randolph is, I think, conclusive of this; and it was decided, not only upon express authority, but in strict conformity with the general principles of the court of chancery, which disclaims any interference with legal titles. In this case, though the interest of the remaindermen is but contingent, yet their title, such as it is, is a legal title, and cannot be drawn in question in equity. The decision of that court upon the naked question of title, in a case where there is not, and never may be, a subsisting dispute with respect to the right of property, would indeed be an anomaly. If Mrs. Bush should leave a child, then her estate will be absolute, under the will, and her husband will be invested with her title; so that it is very possible, that the question, whether he is the owner of the property independently of the will, never may arise.

I do not perceive that the case is materially different, because there is . an executor of Martin, who might contest the claim set up by Bush. The question between Bush and Martin’s estate is a purely legal question. Martin’s executor may never choose to raise it. At any rate, he is not bound to submit to its decision in equity. It is no ground to come into equity to settle a land title, that there is another party claiming a legal title who holds back and will not sue. Abbott v. Allen, 2 Johns. Ch. Rep. 519; Stuart’s heirs v. Coalter, 4 Rand. 74, and Lange v. Jones, 5 Leigh 192. Upon the principle of those cases, it is equally clear, that a party in possession of a slave cannot bring into equity an adverse claimant of the legal title, to have the question of title settled there. If an action of detinue cannot be sustained in equity, against the party in possession, it is not perceived upon what principle the party in possession can maintain a corresponding action to try the title against the party out of possession. The decree is to be affirmed.

Decree affirmed.  