
    Mary C. Bugg vs. William Franklin et al.
    
    1. Husband and Wife. Sale by husband of wife's remainder. Possession. Where a husband, having sold his wife’s remainder or reversionary interest in property, gets possession, by himself or Ms assignee, during his life, upon the termination of the intervening estate, such sale will be good against the right of the wife.
    2. Same. Oase in judgment. The complainant, by the will of a deceased husband, had an estate for life in certain slaves, if her daughter should survive her, to the latter of whom, in that event, the estate was bequeathed in fee; but if the complainant should survive the daughter,, the estate was to be hers in fee. Upon the second marriage of complainant, and the marriage of the daughter, the two, with their husbands, agreed upon an adjustment of their respective interests in the slaves, by which four of said slaves, the whole number being seven, were assigned in fee to the complainant, and three to the daughter. The parties, with their husbands, upon this basis executed to each other reciprocal conveyances of the slaves, which were recorded upon the acknowledgment of the husbands respectively, and they took possession accordingly. The complainant and her husband survived the daughter ; but before the death of the latter, the two husbands claiming under said adjustment had sold the slaves, and regularly conveyed them to purchasers for value, who had adversely held them and their increase up to the filing of this bill, a period of near thirty years. The bill was filed by complainant, claiming under tlie "will, to recover the slaves of the purchasers and those claiming under them. Held, that the title of the purchasers was perfeafi, and the bill was properly dismissed. It seems also that a court of equity would hesitate in such case to disannul in behalf of the feme covei-t an adjustment of a contingent interest so fair and equitable, irrespective of all other questions, and of the effect of subsequent transactions.
    3. Cases Cited. Wilkes vs. Fitzpatrick, 1 I-Iumph., 68; Gaplinger vs. Sullivan, 2 Humph., 660; Dearen vs. Fitzpatrick, Meigs’ R., 566, approved.
    FROM SUMNER.
    The complainant filed her bill in the Chancery Court at Gallatin on the 30th of April, 1853, to recover certain slaves, claimed by her under the will of her deceased husband, Richard B. Taylor. The testator Taylor died in 1801, in the county of Mecklenburg, in the State of Virginia, leaving his last will and testament, which was duly admitted to probate and registration in said county. By the fourth clause of said will, he bequeathed as follows: “ I give to my wife the use of the negro girl Milly during her natural life; and after her death, if my daughter Ann C. Taylor be then living, I give the said negro and her increase to her and her heirs for ever; but should my daughter Ann C. Taylor die before my wife, I then, in that case, give the said negro and her increase to my wife Mary C. and her heirs for ever.” The complainant is the Mary C. Taylor referred to in said will as the wife of the testator. In 1803 she intermarried with Zachariah Bugg, who has died pending this litigation. In 1817, the daughter, Ann C. Taylor, intermarried with William Thrower; and during the following year, the parties, “ being in doubt as to whom the slave Milly and her increase would ultimately belong,” entered into an agreement, by which the slaves were divided between them, said slave Milly having borne six children since the testator’s death. By this agreement, which was reduced to writing, signed by the husbands and their respective wives, and recorded in said county of Mecklenburg upon the acknowledgment of the husbands, four of said slaves were allotted to Bugg and wife, and three to Thrower and wife, and possession was taken accordingly. In 1819, the parties removed to Tennessee, and settled near each other in the counties of Wilson and Sumner, each bringing their respective negroes, claiming them under the division. The defendants, William Franklin and others, from the years 1820 to 1826, and before the death of Ann C. Thrower, which occurred in the latter year, purchased from Thrower for their full value the negroes assigned to him by regular conveyance. The defendants, Thomas and James Davis, purchased of Bugg those assigned to him, some before and some since the death of Ann C. Thrower, but all before the year 1828. The purchasers, and those holding under them, have held said slaves adversely under the respective purchases ever since. This bill seeks to recover the slaves sold by Thrower, and their increase, and those sold by Bugg before the death of Ann 0. Thrower. At the March Term, 1855, Chancellor Ridley dismissed the bill. The complainant appealed.
    John J. White, for the complainant.
    The rights of the parties in this case must be governed by the will. Its true construction is, to give complainant a life-estate in the negroes, and a contingent estate in fee, depending upon her surviving the daughter. Ann 0. Thrower, the daughter, has no interest in them except upon the event of her surviving her mother; hut having died first, she acquired no interest, and her husband William Thrower could convey none. That complainant, then, is entitled to the negroes sold by Thrower, is clear, unless she has parted with her title, or, by her negligence and laches, has lost it.
    What is the defence ? That they are purchasers for full value without notice. That will not avail them. With regard to the title to personal property, it is a question of right, not of notice. 1 John., 479; 2 Com. Dig., 270 and note.
    They rely upon the division of the negroes in 1818. Now this argument assumes that, at the time of the division, complainant was the owner of the absolute estate in the negroes, and which was only subject to a contingency which never happened; and consequently, by virtue of his marital rights, Zachariah Bugg was entitled to the absolute estate, and could convey to Thrower. But that is not the true construction of the will. Complainant, at that time, was only entitled to a life-estate in the property, with a contingent interest that might never vest in her. Of course the husband, by virtue of the marital right, was vested with nothing but her present interest at the time of the conveyance, and could convey no more. That is all the right which the husband could have reduced into possession at the time of the division, and all that he could have sold.
    Now, it may well be questioned whether a contingent interest of this character is the subject of sale at all. It would be a mere gambling speculation upon each other’s lives. If, as it turns out, tbe mother survives the daughter, the daughter has no interest whatever in the slave Milly or her increase; and yet, under this agreement, Thrower, her husband, gets several of the negroes.
    But suppose it to be the subject of sale: then I ask for some authority that the husband, by virtue of his marital right, is seised of a contingent remainder; that he may be considered as having reduced that to possession, and that he can sell the same, and thus defeat the wife of her interest; and that must be shown before this disposition of it to Thrower can stand good. If it were even a reversionary interest of the wife, which is a vested interest, (4 Kent. Com., 354,) the husband cannot reduce it into possession. 2 Mad., 16; 3 lb., 384; 2 Story’s Eq., sec. 1413; 2 Humph., 448.
    The argument that this was a vested remainder in the mother, and capable of alienation by the husband at the time of the division, is not sustained by the authorities. See 4 Kent, Com., 201-205, et seq.; Eearne on Remainders, 3, et seq.; 1 Preston on Estates,. Tl-74.
    The case referred to in the Virginia Reports, of Up-shaw vs. Upshaw, 2 Hen. & Munf., 381, is that of a remainder, and not a contingent interest.
    The case of Oaplinger vs. Sullivan, 2 Humph., 548, shows there would be no merger of estates; that all the husband either acquired or could sell at the time, was the present interest of the wife at the time of the sale.
    If, however, it should be regarded that, by the death of Ann C. Thrower, the daughter, in the lifetime of the mother, there was a merger of the life-estate in the estate in remainder in fee, (the lesser in the greater estate,) so as to vest the absolute estate in the mother, the complainant, the same result will follow. This extinguishment of the life-estate by the death of the daughter was in 1826: this division of the negroes between Bugg, the husband of complainant, and Thrower, the husband of the daughter, was in 1818. Bugg was then only in possession of the life-estate of his wife in the negroes, with a possible remainder, upon a contingency which might at any time occur, and would extinguish the life-estate. He could, then, have conveyed no other interest than this determinable life-estate of his wife; nor could Thrower, or those claiming under him, have acquired any other. Since that time, 1826, Bugg, the husband of complainant, has never been in possession of these slaves. See 4 Kent, 99; 11 Humph., 140; 2 Swan, 460.
    In this case, complainant has never parted with her title in any way that is recognized by a court of equity.There was no privy examination of the wife, without which it would be void; nor was there any acknowledgment by the wife anywhere. See 1 Humph., 54; 2 Swan, 218.
    The statute of limitations is relied upon. This will not avail, because complainant’s right of action only accrued in 1826, on the death of Ann 0. Thrower. She was then a feme covert, and is yet, and the statute has never commenced running against her. See 5 Yerg., 1; 8 Hayw., 152; 8 Humph., 298, 568; 9 lb., 164; 11 lb., 412; 4 John., 390, 402.
    J. W. Head, for the complainant.
    1. Under the fourth clause of the will of Richard B. Taylor, the complainant took a life-estate and a contingent remainder in fee in the slave Milly and increase. 4 Kent, Com., 206; 2 Jarm. on Wills, 327; Eearne, 3; 2 Bouv. Ins., 285, sec. 1832.
    2. Tbe husband of complainant acquired, virtute mariti, tbe life-estate of tbe wife, subject to a defeasance by merger. He acquired no interest in tbe contingent remainder. He could only convey sucb title as be bad. Tbe agreement entered into by Bugg and Thrower in 1818, vested in tbe latter tbe life-estate of Mrs. Bugg, with the possibility of its defeasance by merger. Tbe contingent remainder of tbe complainant was not affected by tbe acts of her husband. Oaplinger vs. Sullivan, 2 Humph., 584; Story’s Eq., par. 1413; Qabun vs. G-ordon, 1 Hill’s Cb. R., 51; Holloway vs. Connor, 3 B. Mon., 395; Swanson vs. Swanson, 2 Swan, 460; Hall vs. McLain, 11 Humph., 425.
    3. Upon tbe death of Ann C. in 1826, tbe two estates met in tbe same person, and there was no intermediate estate. Tbe consequence was, tbe annihilation or extinguishment of tbe less — tbe life-estate — by its merger into tbe greater estate. 2 Bouv. Ins., 375-8; Jones vs. Morey, 2 Cow., 248; 2 Black. Com., 177.
    4. Tbe life-estate in tbe ^laves having been thus terminated by operation of law, tbe rights of Bugg and those claiming under him were likewise terminated. Tbe after-acquired title of tbe wife did not enure to tbe benefit of those claiming under tbe husband, unless tbe husband bad reduced tbe slaves to possession after sucb title was vested in bis wife. See authorities before cited.
    5. Tbe complainant has not lost her right to the slaves by operation of tbe statute of limitations. She was a feme covert at tbe time she acquired an estate in fee to tbe slaves, and no bar of her rights is created by lapse of time and tbe neglect of her husband to enforce her claim. Brown vs. Crawford, 9 Humph., 166 ; Barns-worth vs. Lemons, 11 Humph., 140; Hansford vs. Blliott, 9 Leigh, T9.
    J. 0, G-uild, for the defendants.
    1. It is insisted, as to the Davises, that their right is perfect as to the negroes held by them, for the reason that, Mrs. Thrower having died previous to their purchase, the right of Zachariah Bugg, the husband, by virtue of his marital rights, was made perfect in these slaves previous to his sales. Mrs. Thrower having died, the contingency specified in the will, by which Mrs. Bugg’s 'absolute title to the slaves might be prevented from attaching, never could take effect; consequently, if she had a contingent interest at first, it was made absolute by the death of her daughter.
    2. I maintain, as to the negroes held by the various other defendants, under their respective purchases from the husband, Thrower, that it vested them with the title to those slaves claimed by them. It is true that a feme covert cannot in general be barred by time, nor are they estopped by agreements signed by themselves and husbands. But, in a case like the one under consideration, where the mother and the daughter and their husbands come together, and make a family settlement of doubtful rights, and hold the negroes assigned to each from 1818 to their respective sales to purchasers for full price, who have held them for upwards of thirty-five years, some of them having descended from sire to son, that a court of equity, after this long acquiescence, will not disturb such holders, and will deny the relief sought at this distant day by Mrs. Bugg. This family arrangement in 1818 • was a very fit and natural one. It was uncertain whether the mother or the daughter would survive. The presumption of law was, that the daughter, being younger, would survive the mother. In that event, she would get all the negroes. The mother, desiring the advancement of a young daughter, just married, and to secure herself in the absolute right in the better portion of this property, with the assent of their respective husbands, Bugg and wife received four of those negroes, and Thrower and wife three. The conveyance executed in 1818 conveyed them accordingly. As to the husbands, this conveyance was founded upon a valuable consideration, and is certainly binding upon them. Although these defendants are purchasers under the husband Thrower, they are the assignees, by virtue of the article of 1818, of the husband Bugg. And it is insisted that these defendants, the assignees of Bugg, being in possession of these negroes since the death of Mrs. Thrower, whose contingent right ceased with her death, their possession is the same in law as if the husband Bugg, during the same time, held the possession; in which case, there is no doubt that the marital right of the husband, Bugg, would attach: consequently, that right attaches to his assignees.
    If the wife shall have a vested remainder, and the husband or his assignee, for value, shall get the possession of the property, and hold it after the termination of the life-estate, that vests the title or destroys the right of survivor-ship of the wife or her equity to a settlement. See 2 Kent, Com., 139. This principle, though not directly decided, is strongly shadowed forth in the case of Vaden vs. Qaplinger, 2 Humph., 550. The point there decided is, that the husband who had married a wife having a remainder in a slave, Laving purchased the life-estate, the tenant for life still living, did not merge the two estates, and prevent the right of survivorship on the part of his wife. Why ? for the reason that the husband never did have the possession of the slave after the falling in of the life-estate. If he had, his title would have been perfect. The Court, in that case, says, “If the husband, having assigned, had continued to live until the lifetime estate had terminated, then, indeed, as a Court of Chancery views such assignment as an agreement to assign when in his power, and considers that as done which ought to have been done, the assignee for a valuable consideration would in equity have been entitled to the property.” Such is the case now under consideration.
    3. By the laws of Virginia, which govern this ease, a husband may for a valuable consideration sell the remainder-interest or title of his wife in negroes; and such sale, being valid, will destroy the wife’s right of survivorship or equity to a settlement. Upshaw vs. Upshaw, 2 Hen. & Munf., 381.
   CaRUTHERS, J.,

delivered the opinion of the Court.

This bill is filed to recover several slaves in the hands of the various defendants, vendees of the husband of complainant, and one Thrower, her son-in-law, or those claiming under such sales.

These are the facts: Richard B. Taylor, the first husband of complainant, died in Mecklenburg ■ county, Virginia, in 1801, leaving a will containing this clause: “Fourthly, I give to my wife the use of one negro girl named Milly, during her life. After her death, should my daughter Ann 0. Taylor be then living, I give the said negro and ber increase to her and her heirs for ever; but should my daughter Ann C. Taylor die before my wife, I then, in that case, give the said negro and her increase to my wife Mary C. and her heirs for ever.”

The slaves in controversy are all the children of Milly, and their increase. In 1803, the widow married Zachariah Bugg, who was living at the filing of this bill, but has died since the appeal to this Court. In 1817, the daughter, Ann C., married William Thrower. The next year, 1818, the slaves were divided by agreement in writing, the number having then increased to seven. Milly and three of her children were assigned to complainant, and the other three children to Thrower and wife, and a deed made, conveying and relinquishing title to each other, which was signed by the husbands and their wives and duly recorded, but only acknowledged by the husbands. Each party took possession accordingly. In 1820, they all moved to Tennessee, and claimed and sold the negroes as their own according to said division. Thrower sold all that fell to him before the death of his' wife, which occurred in 1826. Bugg sold some before and some after the death of Mrs. Thrower. To the latter no claim is urged in the argument, it being conceded that the purchasers of them got a valid title. The purchasers of the negroes, and those claiming under them, have held adversely and unmolested ever since the date of their respective bills of sale.

Upon this state of facts the question arises whether the defendants have a good title against the complainant.

This clause is more than half a century old, and all doubt and contingency in relation to it were removed in 1826 — thirty years since — by the death of Mrs. Thrower. The complainant has slumbered upon whatever rights she may have had, for the time allotted for one generation to pass off and another to come upon the stage. These slaves have been sold and resold, and some of them more than once distributed as a part of dead men’s estates. All this time men have been allowed with confidence to vest their money in them and repose quietly upon their title. Under such circumstances, a right should be made very clear, to authorize the Courts to sustain it. Such suits are certainly not entitled to very great favor in a court of equity. If they succeed at all, it must be by force of the rigid rules of law. It is true, however, that time is not a witness against a feme covert, nor does it often raise presumptions against her for the destruction of her rights.

This case has been elaborately argued for the complainant, and a great many principles discussed, when it must at last turn upon a few simple rules, as we will see.

1. By virtue of the will, the complainant and her husband had a clear and unquestionable life-estate in all the slaves up to 1818, which was at any time liable to be augmented into an absolute estate by the death of her daughter. But then, if her daughter should outlive her — which was most likely, as one was young and the other more advanced — the remainder would pass from her and her heirs, and vest in the daughter and her young-husband. Now, in view of these chances, the two husbands, with the concurrence of their wives, concluded to make a division of the slaves, by which the mother, probably on account of her life-estate, was allowed the advantage of four to three. This was certainly a most judicious arrangement for the benefit of complainant, under the circumstances before them, as, by any correct calculation of chances, they were greatly in favor of the daughter outliving her, and in that event she would have lost the remainder in all, whereas, by it, she secured one more than the half in fee. The terms were liberal to her and against the daughter; still, all acquiesced in them, and should in good conscience be held to them, unless there is some rule of law which forbids it. It is true, as has been held in many of our own reported cases, to which we have been referred, that a married woman is not bound by a conveyance of her personal estate jointly with her husband, no matter under what solemnities, except in some eases, by privy examination in Court. Wilks vs. Fitzpatrick, 1 Humph., 58; Caplinger vs. Sullivan, 2 Humph., 550. Nor can any sale of his before possession, either with or without her concurrence, in writing or otherwise, stand against her right by survivor-ship, nothing else occurring to take the case out of that rule. But this was not the ordinary case of selling the property of the wife not yet reduced to possession, or disposing of her reversionary vested rights. It was a fair and equitable adjustment between the husbands of two married women of the contingent interest of both in the same property. In view of the chances in favor of each for the whole property in fee to the exclusion of the other, the arrangement was certainly most favorable to the complainant. So she and her husband, acting for her best interest, thought, and jointly made a deed with warranty of title to Thrower for the three that fell to him, and received the same sort of deed from Thrower and wife for tire four allotted to them. Under these acts and writings possession was taken on both sides, and has been held for forty years. It was not therefore the case of a sale of a present chose in action of the wife, or a certain remainder or reversionary interest, but the adjustment of a contingent claim, upon which an uncertain and doubtful right to the whole was reduced to certainty as to half, and possession given and taken, accordingly, of the parts assigned to each. We are not prepared to admit that this would not, under all the circumstances, bind the wives of both, and fix the right of property in their respective husbands, without regard to after-events. If Mrs. Thrower had been the longest liver, could she have repudiated the division and set up her claim successfully for the whole property against Bugg or his vendees ? That would certainly be as strong a case as the other. But let that be as it may, there is another ground upon which the complainant must fail,

, according to the decided current of authority here and elsewhere.

2. A sale made by a husband of his wife’s remainder or reversionary interest in property will be good against her right of survivorship in case the husband or his as-signee gets possession upon the termination of the intervening life or contingent estate before his death. The case of Caplinger vs. Sullivan, 2 Humph., 548, so much relied upon in the argument for complainant, settles this question against her. The main point in that case was, •that where the husband, who had bought in the life-estate, sold the fee, such sale would only be good for the life-estate which he had bought, and could not affect the remainder-interest in his wife, so as to defeat her right by survivorship in favor of the husband’s vendee. But it is further held in that case that if the tenant for life had died before Sullivan, the husband, so that a right to the present possession of the property had devolved upon the husband, the actual possession in his assignee, Caplinger, would have made his title perfect. But as Sullivan died before Mrs. Eelts, the life-owner, there never was a time when he could have reduced the remainder-interest of the wife to possession, and therefore no sale of it by him could defeat her right. The Court expressly say in that case, “If the husband, having assigned, had continued to live till the lifetime-estate had terminated, then indeed, as a Court of Chancery views such assignment as an agreement to assign when in his power, and considers that also as done which ought to have been done, the assignee for a valuable consideration would, in equity, have been entitled to the property.”

To sustain the doctrine of this case, reference is made to the leading English cases of Purdew vs. Jachson, 1 Russ., 1, and Manner vs. Morton, 3 Russ., 65. The proposition cited above is fully sustained by those authorities; but the point is very much controverted in the books, and cannot be regarded, probably, as a settled question, except where possession is obtained by the assignee, after the falling in of the life-estate, his assignor, the husband, still surviving, or, which would be the same, having actual possession before the event, retains it afterwards by himself or some other holding under him.

The case of Dearen vs. Fitzpatrick, Meigs, 559, had before clearly settled the principle, that “after the property of the wife (and that was a legacy) has been reduced into possession by tHe husband or his assignee,” the wife’s right to a settlement, the much-favored “wife’s equity,” is gone. It would have been otherwise where the right was asserted before the reduction to actual possession by the husband or his vendee. 2 Story Eq., §§ 1413, 1403. Clancy on Eights, 471. In this same case, coming before the Court again the next year, and reported in 1 Humph., 58, it was held that the assignee of the husband could not resist the wife’s equity in any portion of the property not reduced to possession previous to her application. But this distinction is palpable and well settled. In a case like that of Dearen vs. Fitzpatrick, where there is a present right of possession when the husband sells, he stands on higher ground than the wife, if he has obtained actual possession before she makes her application to the Court for a settlement, or before she becomes entitled by surviving her husband. And in the other class of cases of which Caplinger vs. Sullivan is an example, the right depends upon the same fact, that is, whether the husband while he lived was entitled to immediate possession of the wife’s remainder by the termination of the life-estate, and such possession was actually obtained by him or his assignee before his death.

Now, is not this principle, so well established, decisive of the case under consideration? The deed made by the husband Bugg, at the division in 1818, to say the least of it, is a conveyance absolutely by him and with warranty to Thrower of three negroes, who sold them all to others, as charged in the bill. Here, then, was actual possession by the assignees of the husband; and was there ever a time when Bugg bad a present right as husband to recover or enjoy the possession? This was certainly the case after the death of Mrs. Thrower in 1826. After that contingency had happened, if the division of 1818 had not affected her title to the whole of the negroes, it was from that time a perfect and absolute title — the previous life-estate was merged in the fee. Is it not clear that, on the principle stated, the title derived from the husband of complainant, being then accompanied by actual possession, would be paramount to that of the wife ? If the husband had not sold until that period, and held possession himself or had afterwards obtained it, there would be no question as to the attachment of the marital right and the perfection of his title against her and all others. But his assignees stand in his shoes, having all his rights, and the fact of possession produces the same results.

Can there be any doubt, then, independent of the obligatory force of the contract of division in 1818, that the complainant’s rights are gone to these negroes ? It will be at once seen that the same principle which defeats her right to the Thrower negroes must apply with equal force to those which were sold by Bugg to others, whether before or after the death of Mrs. Thrower. If after the contingency, it is conceded there is no doubtand if before, it must be held that the same result is produced, because, upon the happening of the event which made the title perfect, the right of Bugg to take possession, and thereby perfect his marital right, would pass at once to his assignees.

In this view, it becomes unnecessary to notice the statute of limitations, the effect of the Virginia laws, and other questions made in the ease and argued by counsel.

The decree dismissing the bill must therefore be affirmed.  