Gaston, Judge, after stating the case as above, proceeded : — Doubts have recently been entertained and expressed, whether a remainder in a chattel, can be sold on a fi. fa. These doubts arise because of the difficulty of making such a seizure of interests of-this kind, as the law requires of sheriffs, in a levy of personal property, consistently with the right of possession in the present holder ; and because of the necessity of actually exhibiting, at the time of sale, the chattel which is offered, or any interest in which is offered by the sheriff for sale. They are rendered *135 more imposing, by a consideration of the sacrifices, almost unavoidable, in a sale of the right to a future enjoyment of a chattel, not only perishable in its nature, but so liable to be eloigned before the period of enjoyment arrives. These last suggestions would, no doubt, have great weight in interpreting the enactments of our act of 1812, (Rev. c. 830,) in relation to the sale, under execution, of equitable interests, where the words of the statute do not clearly embrace them. But we believe that the rule of law is, that all vested legal interests of the debtor, which he himself can legally sell, in things which are themselves liable to be sold, under a fi. fa., may also be so sold.
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UpLaw has not yet analyzed Knight v. . Leak. The absence of a flag is not a finding that it is good law.
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KNIGHTv. LEAK,19 N.C. 133(1836)
JOHN A. KNIGHT et. al.v. FRANCIS T. LEAK.
Supreme Court of North Carolina
A vested remainder in slaves may be sold during the life of the tenant for life, under afi. fa. against the person entitled to such remainder.
Upon an execution against A. and B., if the sheriff levies upon and sells a certain slave, who was in the possession of A., as the absolute property of A., and in the bill of sale describes the slave as the property of A., the interest of B. in such slave, will not pass by such sale, though, in fact, A. had only a limited interest in the slave, and B. was entitled to the absolute property in remainder.
DETINUE for a slave named Bob, brought by the same persons who were plaintiffs in the preceding case ofKnightet al. v.Wall, and tried at the same time. One question was presented in this case, arising upon an exception to the charge of the Judge, by the defendant, besides those that were raised in that case.
William Hicks, by his last will, bequeathed a negro girl, Grace, to his daughter Frances, for life; and after the death of the said Frances, to her children. Frances, the legatee for life, was the wife of Moses Knight, who, by the assent and delivery of the executors of Hicks, took possession of Grace; and Bob, the slave in controversy, was born of Grace, while thus in his possession. A judgment was rendered against the said Moses Knight, and also Caleb Curtis and Daniel McIntosh, and afi. fa. duly issued thereon, to the sheriff of Richmond county. At this time Mrs. Knight was yet alive, and the persons having a vested interest in remainder in the slave Bob, were her four children, and the representatives of two children, who were dead. Anna McIntosh, one of the plaintiffs and one of these children, was the wife of the said Daniel McIntosh; and Elizabeth Curtis, another plaintiff, and also one of these children, was the wife of the said Caleb Curtis. This suit, upon the death of Mrs. Knight, was brought by all the living, and the representatives of the deceased children, and the defendant set up a title to Bob, under a purchase from the sheriff, at a sale under the said execution, and exhibited as evidence of his purchase, the bill of sale of the sheriff. The defendant insisted that under this billPage 134of sale, he had acquired, not only the temporary interest of Moses Knight, but the interests in remainder of Mrs. McIntosh and Mrs. Curtis, and therefore the present action could not be maintained against him. The bill of sale recited the execution, and that, by virtue thereof, the sheriff "did levy on a certain negro boy by the name of Bob, about fourteen years old, the property of Moses Knight, and having advertised, according to law, did expose the same to sale at the Court-house to the highest bidder, when Francis T. Leak became the highest and last bidder, at the sum of three hundred and thirteen dollars, twenty-five cents;" and then the sheriff's deed proceeded to declare that "in consideration of the said sum paid by the said Leak, I hereby sell and convey the said boy to the said Leak." There was no other evidence given of the levy, but the defendant introduced testimony to show, that John A. Knight, one of the plaintiffs, was present at the sale, and advised the defendant to purchase the boy Robert, saying that he was a fine boy, and that the title of Moses Knight was good; that the said boy was then sold absolutely, and that Curtis and McIntosh were present at the sale, making no objection, but assenting thereto. His Honor was of opinion, and charged the jury, that nothing passed under this sale but the interest of Moses Knight, "which alone was sold, as appeared from the sheriff's bill of sale." To this opinion and instruction the defendant excepted.
Badger, for the defendant.Devereux, for the plaintiffs.
GASTON, Judge, after stating the case as above, proceeded:
— Doubts have recently been entertained and expressed, whether a remainder in a chattel, can be sold on afi. fa. These doubts arise because of the difficulty of making such a seizure of interests of this kind, as the law requires of sheriffs, in a levy of personal property, consistently with the right of possession in the present holder; and because of the necessity of actually exhibiting, at the time of sale, the chattel which is offered, or any interest in which is offered by the sheriff for sale. They are renderedPage 135more imposing, by a consideration of the sacrifices, almost unavoidable, in a sale of the right to a future enjoyment of a chattel, not only perishable in its nature, but so liable to be eloigned before the period of enjoyment arrives. These last suggestions would, no doubt, have great weight in interpreting the enactments of our act of 1812, (Rev. c. 830,) in relation to the sale, under execution, of equitable interests, where the words of the statute do not clearly embrace them. But we believe that the rule of law is, that all vested legal interest of the debtor, which he himself can legally sell, in things which are themselves liable to be sold, under afi.fa., may also be so sold. Thus the goods of a pawner, or of a lessor, in the hands of a pawnee or lessee, may be sold by the sheriff, subject to the present right of possession of the pawnee or lessee. 2 Tidd's Prac. 8th ed. 1042. Such has been the common practice in our state, and although we are not a ware of any express adjudication affirming it, we have never heard of any judicial disapprobation of it, and we are not at liberty to hold it as against law. How the sheriff is to cause the possessor and temporary owner to produce the property at the day of sale, is an inquiry with which we need not now embarrass ourselves, as in this case the negro was actually present. We also understand the law to be, that the husband,jure mariti, has such a dominion over the vested legal interest of his wife, in a chattel, real or personal, of which a particular estate is outstanding, that he can sell such interest, so as to transfer it completely to the purchaser, and that the law can transfer it for his debts. We understand the effect of an assignment by the husband, of his wife's equitable interest in a chattel, in which she has not the right of immediate enjoyment, to be different, for such assignment will not prejudice her right, should he die before her, and before the period allotted for such enjoyment to take effect.Hornsbyv.Lee, 2 Mad. 16.Purdenv.Jackson, 1 Russel, 1.Bonnerv.Martin, 3 Russel, 65. It is perfectly established in this state, that a vested remainder in a slave dependent on a life estate in another, is a legal interest. We are therefore of opinion, that these interest of Mrs.Page 136McIntosh and Mrs. Curtis might have been sold under the execution against their husbands.
But we agree in opinion with the Judge, that these interests were not sold by the sheriff. The deed of the sheriff professes to transfer property, in execution of an authority confided to him by law, and is not to be construed with the same favor to the vendee, as the deed of an individual, disposing of things over which he claims uncontrolled dominion. Nothing can pass by the sheriff's deed, but that which he has levied upon, and which was known, at the time of sale, as the subject-matter thereof.Sheppardv.Simpson, 1 Dev. 237.Southerlandv.Cox, 3 Dev. 394. Any relaxation of this rule would be highly mischievous, in preventing fair competition, and producing ruinous sacrifices. If there be any case, calling for the rigorous application of this rule, it is when reversionary interests — rights to future enjoyment — are disposed of by judicial sales. These are not theusualsubjects of such sales. Their existence, nature, limitations, are not inquired into, unless attention be explicitly called to them. Without a distinct annunciation that such interest are exposed to sale, every one understands that the immediate ownership, limited or absolute, is that for which a price is demanded. The sheriff's deed but authenticates the transaction, and shows that the transaction was a sale of property in possession. It recites the subject-matter of the sale to be negro Bob, "the propertyof Moses Knight," and this recitalqualifiesthe subsequent part of the deed, as the annunciation at the sale, in the same words, would characterise the sale itself. Itmay be, that if the mistake had been in supposing the property to be in one defendant, when, in truth, it was the property of another, inasmuch as there was no mistake in the thing sold, the property might pass, notwithstanding the mistake of title. But here one thing was sold and another is claimed. The negro was sold as the property of him who had the negro in possession, and this without further explanation, means the immediate property in said negro; and the purchaser claims what was not sold, a right of future enjoyment, if the negro should outlast his living owner. The misfortune of thePage 137defendant is, not that he did not obtain what he purchased, the property of Moses Knight, but that, instead of Moses Knight being the absolute, he was only the limited owner of Bob. We think that the Judge was warranted in thus considering the sale, upon an examination of the bill of sale, independently of all extrinsic proofs. But take the bill of sale, in connection with the defendant's testimony, and the truth is undeniable. Nothing was then known of any reversionary interests in the negro Bob — nothing but Moses Knight's interest was set up for sale, and that was supposed to be an absolute interest, but proved to be an interest during the life of his wife only.
The other objections relied on in this case, are overruled for the reasons set forth in the case ofKnight and othersv.Wall.
PER CURIAM. Judgment affirmed.