
    Nancy R. Crittenden v. Thomas Posey.
    1. Slaves. Dower in, under the law of Virginia. Forfeiture by removal. By the law of Virginia, a widow has a right to dower in'the slaves of her husband. If she remove the slaves of which she is thus endowed, from the State, without or against the consent of those entitled to the reversionary interest, she forfeits her life estate in them. But, the consent of the husband of a reversionary feme covert, is her consent, and will save the forfeiture.
    2. Same. Husband and wife. Assignment of wife’s rever sionary inter est inslaves. Lawof Virginia and Tennessee. ' No assignment, by the husband, of the wife’s reversionary interest in slaves, though it be vested, and though the assignment he for a valuable consideration, will defeat her right of survivorship, if he die in her lifetime and while such interest is reversionary. The rule of law is the same, both in Virginia and Tennessee.
    3. Same. Same. Same. Fraud of the wife. If it be shown, affirmatively, that the wife fraudulently induced the purchase of the slaves, she would be estopped from asserting ,her right to them.
    4. Same. Measure of damages on breach of warranty of title. The measure of damages in a suit for a breach of a covenant of warranty of title in the sale of a slave, is the consideration money and interest.
    5. Same. Same. Interest not computed while title good. "Where the title is good for a certain period, interest is not to be computed until the termination of the time for which the title is good. Thus, if an absolute estate in a slave is conveyed by a person having only an estate pur auter vie, the title being good for a certain period, the ven-dee is entitled to the consideration paid, with interest, only, from the termination of the life estate thus held by the vendor.
    6. Question Reserved. How far the existence of fraud on either side, would affect the question as to the measure of damages, does not, properly, arise, and is not decided.
    PROM WII.S0N.
    The original bill was filed by the complainant to recover certain slaves claimed by her under the law of Virginia. The defendant filed a cross-bill against the representative of her husband’s estate, to recover the value of said slaves, in the event she succeeded in her suit. Posey purchased the slaves of the husband of complainant, who warranted the title to be good. The cause was heard at the July Term, 1858, Ridley, Chancellor, presiding, who pronounced a decree for the complainant on her original bill; and for the complainant in the cross-bill for the value of the negroes. Posey, and the representative of the estate of Pryor Crittenden, both appealed.
    Robert HattoN, for Nancy R. Crittenden, and the representative.
    E. J. Golladay, on the same side,
    said:
    Upon’ this record two questions of law are presented for the judgment of this Court.
    1st. Whether the sale of Pryor Crittenden, in his lifetime, of the slaves to defendant Posey, operates to defeat the reversion of the complainant, Nancy R., who survives her husband; and—
    2. What is the measure of damages upon a breach of warranty of title in the sale of chattel property. Under the laws of Virginia, at the death of John Jackson, his widow, Erancis, took one-third of the land and slaves for natural life, reversion to Nancy R. This creation by operation of law, of a life and reversion interest, clothes the property with all the qualities incident to such estates, when created by deed, will, or other writing. The purchase of the life estate of Fannie Jackson, the dower tenant, by Pryor Crittenden, did not produce a merger of estates, and thus entitle him to the absolute property, defeating the reversion of his wife. Before the husband can become entitled to his wife’s reversionary interests, the life estate must determine, and a reduction into possession obtain. In the case at bar, the husband died before the life-tenant, and he was never capable of reducing the reversion into possession.
    Whatever character of title was impressed upon the slaves by the Virginia laws, was continued by operation of Tennessee law, and the disposition of the property in Tennessee would be governed by the law of this forum.
    The doctrine of the Tennessee Courts we understand to be, that no consolidation can take place of a life and reversion interest, by purchase of one or the other, and we lay down the rule of law, that a husband cannot convey and dispose of a wife’s choses in action, rever-sionary, remainder, or equitable estates, so as to defeat the wife’s right of survivorship. A reduction into possession, or a clear right and power of reduction must exist. The event must take place upon which a reduction can be had. Oaplinger v. Sullivan, 2 Hum., 548; Bugg v. Franldin, 4 Sneed, 142. For the English books upon this question, see Hutchins v. Smith, 9 Sim., 137; Ellison v. Elwin, 13 Sim., 309; Stamper v. Bar-Jeer, 5 Madd., 157, and the well considered case of Horner v. Morton, 3 Con. Eng. Ch. Rep., 298, where the cases are reviewed and passed upon. The modern cases of England hold that, if a woman having the re-versionary interest in personalty, obtain an assignment of the interest of every other person, she will not thereby convert her reversionary interest into an interest in possession, or enable her husband to do indirectly what he could not do directly, assign her original interest so as to bar her right of survivorship. Whittle v. Henning, 2 Ph., 11 Bea., 222.
    Bell on Property, page 79, sums up the result of the cases thus: the cases establish this general principle, that as to the wife’s chcses in action, whether presently recoverable, contingent or reversionary, the right of the husband, and of his assignee, are both subject to the same condition for their perfection, viz., reduction of the chose into actual possession during the life of the husband, if the wife survive him; that in this way alone can the wife’s right to take the chose upon the husband’s death, be defeated; and that neither the husband’s assignment by operation of law, as in bankruptcy or insolvency, nor his voluntary assignment, whether with or without consideration, makes any change in this respect, because of any express or presumed intention in the husband thereby, to exercise a right of property in the chose by transferring it to another, which might ground an argument for implied reduction into possession, since nothing short of actual reduction into possession, by the husband or his assignee, will defeat the widow’s right of survivorship.
    And so we apprehend the Virginia Courts think., Moore v. Thornton, 7 Grattan,-99; Browning v. Headly, 2 Rob., 370. The case of Upshaw v. Upshaw, 2 Hen. and Mun., 381, relied upon by defendant, decided in 1808, is certainly repudiated by the later decisions of Virginia, if the doctrine contended for was really laid down. The .points established in that case, and which were directly in judgment, were these, that a husband can not devise such reversionary interest, and that there can be no claiming under and against the will. The dicta of Tuoker, J., was founded upon no authority, and no where occurs in the opinions of the other judges who presided. The true points in the case were, no doubt, properly decided.
    In regard to the forfeiture contended for. in this case, under the Virginia statute, the case of Boster v. Jordan, 2 Swan, 475, has settled the construction of a similar statute, in which it is said, such forfeitures are to be taken strictly, and that a husband is capable of giving the necessary consent, and this consent becomes matter of evidence, and may be implied. The object of such a statute, we apprehend, is the protection of rever-sionary interest, and it could never be used to destroy such estates. The construction contended for here, would operate the sacrifice of both life and reversionary interests; and we take the law to be, that a party is not bound to exact the forfeiture. If the reversioner here has not pressed ber rights, a consent or waiver of forfeiture may safely be presumed. 3 Monroe, 420.
    Upon the question of damages, the second part of our inquiry, the decree of the Court below, as we think, was wrong.
    'l'he measure of damages upon a breach of covenant for title in the sale of real estate, is now well settled to be the price paid and interest. 2 Mass., 433; 4 Mass., 108; 14 Pick., 128; 10 Wend., 83; Rawle on Cov., 70 and 74. In Tennessee: Hopkins v. Yowell, 5 Yer., 305; JElliott v. Thompson, 4 Hum., 99. In the case of Stoals v. Ten Eyck, 3 Carnes, 115, where the subject was ably considered, the reason and philosophy of the rule now elaborately argued; and Kent, Ch. J., lays down the rule, for the measure of damages in real and personal property, as the same. The illustrations put there, apply with the fullest force to the sale of slaves.
    The point in argument has been adjudicated, as we conceive in Curtis v. Eanaivay, 3 Esp. R. 83; Lewis v. Peak, 7 Taunton, and in 5 Wendell, page 535, where the Court say the measure of damages, in an action brought for a breach of implied warranty of title in the sale of a horse, is the price paid, the interest thereon, and the costs recovered.
    The express question is decided in Crlover v. Hut-son, 2 McMullen, S. C., 109, and in Ware v. Weather all, 2 McCord, 413, where the Court held, “where there has been a breach of the warranty of a slave, and the purchaser has been deprived of the paramount title, the measure of damages for the breach of such warranty, is the price paid for the slave.” Such is the doctrine of the Alabama Court. Rowland v. Shelton, 25 Alabama, 217. The Courts of Kentucky hold the same doctrine. Ellis v. Grorney, 7 J. J. Marshall, 110; Johnson v. Sevier, 4 J. J. Mashall, 142. The case of Grarrett v. Graznes, 6 Texas, 444, shows the doctrine in accordance with equitable principles.
    And we insist a deduction should be made of the value of the life estate, from the recovery. Such is the rule in real estate causes. Only in proportion as the title fails should be the recovery. Tanner v. Livingston, 12 Wendell; Thompson v. Hawkins, 1 Dana, 305, and Beaujland v. Keen, 4 Casey, (Penn.,) Rep., 124.
    The defendant has had the use and hire of the slaves, and the interest of the purchase money would be very inadequate hire.
    He was fully advised of the title he was purchasing, and Mrs. 0. refused to confirm the sale or make any conveyance.
    JORDON Stokes, for Posey.
   Caruthers, J.,

delivered the opinion of the Court. '

On the 4th of July 1838, Pryor Crittenden sold to Thomas Posey two slaves, Martha and Eveline, for $566.50, and made him a bill of sale in the ordinary form. These, with the child of Martha named Sam, are the objects of this suit. The vendor is dead, and his widow, the complainant, claims the slaves as tenant in remainder, under the laws of Virginia.

John Jackson died intestate, in Virginia, about the beginning of the present century, leaving a widow, Francis Jackson, and the complainant, his only child, who married Pryor Crittenden. They came to this State and settled in Wilson county, about 1831 or 1832. By a proceeding in the Court of Nottoway county, Virginia, in 1803, there was assigned to the widow, among others, as her dower in the slaves, a negro woman named Bridget. The slaves in controversy are her issue. It seems that Crittenden mortgaged the remainder interest of his wife in these slaves to Worsham, in 1830, by whom they were bought under a decree for sale there, and afterwards, perhaps in 1835 or 6, redeemed, and the life estate of the widow purchased, and the slaves brought to this State by Crittenden; and the two in question .sold to Posey at the time stated, 1838. It appears that the complainant objected to the sale at the time it was made, insisting upon her right at the death of her mother, which did not occur until after the filing of this bill, when an amended bill was filed. The original bill was filed in November, 1854, the said Pryor having died the year before.

1. By the law of Virginia the life estate is forfeited if the slaves are removed from the State without or against the consent of those entitled in reversion. But this case presents no difficulty on that ground as they were removed by the husband, and his consent would be that of his wife in this respect, and save the forfeiture. Foster v. Jordan, 2 Swan, 476. So her right, whatever it was, would not be affected by the removal, nor would the life estate be forfeited, but inure to the husband as purchaser; and at the termination of that by the death of the widow Jackson, the complainant’s right to assert her title in reversion would accrue, unless something else has occurred to defeat it.

2. This, it is insisted is the case, by the sale of the slaves by the husband. And whether that can be done by the husband, so as to bind the wife, is the next question. It certainly cannot by the laws of this State, so as to exclude her right, if she survives her husband, as was decided in the case of Ann Sullivan v. Samuel Caplinger, 2 Hum., 548. In that ease, as in this, the husband, had purchased in the life estate, and sold the whole to Caplinger. But it is contended that the law of Virginia is different, and that such. a sale there would bind her rights. This becomes an important question in the case, because of the sale under the trust deed there, and perhaps the sale to Posey here. This question seems to have been the subject of some conflict of decision, or at least of judicial and professional opinion in Virginia. The whole subject is presented in the text and notes, 1 Lomax on Ex., 312. His conclusion as to the Virginia decisions, conforms to the law as settled in this State, and refers to the same authorities relied upon in Sullivan v. Caplinger. His conclusion is, that no assignment by the husband of his “wife’s reversionary choses in action,” and this is held by cases cited in the note to include reversionary interests in slaves, though it be vested, and though the assignment be for a valuable consideration, will defeat her right of survi-vorship, if he die in her lifetime, and while such interest is reversionary.” If the life estate had fallen in while the husband lived, his right to reduce the rever-sionary interest to possession, would inure to his assignee and defeat tbe wife’s right by survivorship. But that is not this case. The purchase of the 'life estate does not help or strengthen the husband’s right to the reversion. The two estates were as distinct as before. The husband could not, by that or any other mode, obtain power over that while it was reversionary. In this respect, there is no distinction between the laws of Virginia and Tennessee.

There is no such affirmative fraud on the part of the wife, by inducing the purchase by Posey, as to preclude her from the assertion of her right. The proof that she said a few days before the sale, under excitement, that these slaves should be sold, does not connect itself with this sale, as the testimony is clear by Col. Price and others, that she opposed it at the time it was made. We conclude that there is no legal obstacle in the way of her right to a decree for these slaves, as held by the Chancellor.

3. The next question is upon the measure of damages to be recovered by Posey from the estate of his vendor, on account of the breach of warranty of title. Whether this should be the purchase money and interest, or the value of the slaves at the time of recovery. The Chancellor allowed the latter, amounting to $2200, and charged $250 for the hire since the termination of the life estate by the death of Mrs. Jackson, in 1856.

In relation to land, this question has perplexed the Courts of the different States, but has been most generally settled as in Tennessee, that the true rule is, upon failure of title, that the measure of damages upon covenant of warranty, is the consideration and interest. 4 Hum., 101; 8 Hum., 653. In a suit upon covenants to convey the value of the land at the time it should have been conveyed, is the rule. But when the subject is slaves, or other personal property, we are not aware that any rule has been settled in this State, in' any adjudicated case.

It would seem to be most convenient in practice to make the rule the same in breaches of warranty of title to slaves, as for land, on account of uniformity. In Rowland v. Shelton, 25 Alabama Rep., 220, it was so held. So, in South Carolina, in 2 McMullin’s Rep., 109, and previously in Nott & McCord, 198. In that case it is said such is the common law rule, 199. We can see no sufficient reason for a distinction as to the measure of damages in the two kinds of property. Either rule-would work hard in some cases. If the value at the time of recovery under a better title be adopted as the-rule, it would work unjustly upon the purchaser in a-case where the property had fallen one-half from the-time of his purchase, or where the value had been much reduced by age or disease. And, it would be hard upon a bona fide vendor to be bound to pay five times the amount received by him, in consequence of a great increase in number or value at the time of the successful' assertion- of the superior title';

On the other hand, if the rule be, that the price paid with interest, be the measure, that will likewise be productive of hard cases in some instances. Upon the vendor, when the slaves by depreciation from change of times or other causes, at the time they are lost, are not worth half so much, and still he would have to-pay the full amount received; and upon the vendee, in case of great enhancement of value, as in the present* case. The same reasons, with nearly, if not quite equal force, exist, and bare been urged, upon the same question in relation to land. In some instances, in both cases, either rule works with apparent, if not real injustice, but in general, it is, perhaps, the most just and equitable that can he adopted. Yet some fixed rule must exist, notwithstanding the variety in the results of its operation in the different cases to which it may apply in practice. These difficulties were felt in relation to real estate, and the books. are full of conflicting reasoning, as well as decisions on that subject. The result has been, that each State has settled the rule as best comported with the views of their respective tribunals. And perhaps it has generally been made uniform in its application to real and personal property in the same State. And as our Courts have adopted the principle in application to land, that the price paid with interest, shall be the measure of damages, we think it most fit and proper, that the same rule should govern in actions upon covenants for the failure of title to slaves. How far the existence of fraud on either side would affect the question, we need not- now consider, as we think it did not exist in this case, but that the vendor thought he was selling, and the vendee considered that he was buying a good title.

We hold, then, that the measure of damages upon covenants of warranty for failure of title to slaves, is the consideration money paid and interest, as in the case of land. But in a case where the title was good for_ a certain period, as in this case for the life of Mrs. Jackson, interest should not be counted until the termination of the life estate, by her death, in 1856. Before that time, no hire can be charged, and it would be inequitable to allow interest.’ ' Since that event, the title failed, and the right to hire on the one side, as well as interest on the other, accrues. Some cases are to be found, in' which the consideration paid originally, was reduced in the proportion of the value of the life estate, for which the title was good, to the absolute estate, to which the warranty extended. But we are not prepared to adopt that principle, and allow the full consideration paid, as aforesaid.

The decree will be reversed, as to the rule of damages, and the decree for Posey, upon his cross-bill, will be only for his purchase money and interest from the death of the tenant for life; and the decree against him, will be - for the slaves and the hire up to the time they are delivered to the complainant. The cost will be equally divided.  