Dick v. Pitchford

• Decision Date: 31 December 1836
• Court: North Carolina Supreme Court
• Parties: JOHN M. DICK, et al. v. ALLEN PITCHFORD, et al.

1 Dev. & Bat.Eq. 480

21 N.C. 480

JOHN M. DICK, et al.

v.ALLEN PITCHFORD, et al.

Supreme Court of North Carolina.

December Term, 1836.

A deed for land and slaves upon trust, to apply annually the rents and profits to the use and benefit of the cestui que trust, for his life, “so that they shall not be sold or disposed of or anticipated by him,” without giving the estate over in case of an attempted sale or anticipation, does not prevent an assignment of his interest by the cestui que trust; and the assignee has a right to an account of the rents and profits from the time of the assignment; but in such case, if there be ulterior contingent trusts, he has no right to call upon the trustee for the surrender of the possession of the trust property.

A deed by a trustee, relinquishing his legal estate, but without conveying it to any person, is inoperative, and leaves the estate in him subject to all the trusts declared in the deed creating it.

THIS bill was filed by John M. Dick, Daniel B. Pitchford, and Miles Pitchford, against Allen Pitchford, Hezekiah Pitchford, and Branch Pitchford; and its prayer was, the said Allen and Hezekiah might be decreed to surrender unto the complainant, John M. Dick, the possession of the negro slaves, Harriet, Solomon, Elvira, Sally and Frances; and to account with him for the profits of said slaves; and for general relief. All the allegations of the bill were admitted by the defendant, Branch Pitchford, in his answer, to be true; the bill was taken pro confesso,against the defendant Hezekiah; and the sole controversy was with the defendant Allen Pitchford. On the pleadings and proofs, the case appeared to be, that on the 23d of February, 1818, Daniel Pitchford, the elder, of the county of Warren, by a deed of bargain and sale, in consideration of the sum of ten dollars, acknowledged to be paid by Thomas Pitchford, also of said county, conveyed unto the said Thomas, his heirs, executors, administrators and assigns, a tract of land in Guilford county, and five negro slaves, Russel, Sylvia, Nancy, Salisbury, and Harriett, upon the following trust, that is to say, upon trust “annually to apply the rents and hire of the said land and negroes, or their issue, or other profits thereof to the use and benefit of Hezekiah Pitchford,” (son of the bargainor) “during the life of the said Hezekiah, and no longer; so that they be not subject to be sold or disposed of by the said Hezekiah, or the rents and profits anticipated by him, or be in any manner subject to his debts or contracts; and after the death of the said Hezekiah, in trust for the three sons of the said Hezekiah, to wit, Branch, Daniel, and Miles Pitchford, or such of them as may be living at the death of the said Hezekiah; but should the said sons, or either or any of them, die before their said father, leaving issue then alive, such issue shall stand in the place of his father, and have that part or parts, which his or their parent or parents would have taken, had he or they been alive at the time of said Hezekiah's death, to them the said three sons, Branch, Daniel, and Miles, in manner aforesaid, their heirs and assigns forever.” Hezekiah Pitchford removed to the county of Guilford, with his three sons; there became embarrassed with debt, and was hard pressed by his creditors. To enable him and his sons, by a disposition of part of this property, to remove these embarrassments, and relieve this pressure, Thomas Pitchford, the trustee, on the 22d of December, 1830, executed an instrument under his hand and seal, whereby, after reciting the deed of trust, it is declared as follows: “Now be it known, that I, Thomas Pitchford, trustee as aforesaid, for divers good causes me thereunto moving, and being further desirous of giving up and relinquishing the said trust reposed in me by said deed, I hereby, for myself, my heirs, executors, administrators and assigns, now and forever relinquish and abstain from all law, authority, or any other interference in any of the premises aforesaid, by reason of the said trust-deed, or otherwise.” This instrument was, on the 13th of February, 1831, transmitted to James Cole, of Guilford county, inclosed in a letter written in the name of, and subscribed by, the said Thomas, and addressed to the said Cole. The letter also covered a bond of indemnity, to be executed by the said Hezekiah and his sons, and requested the said Cole to have the said bond executed, and the instruments delivered to the proper parties, so that the said Thomas might be discharged from his trust, and the said Hezekiah relieved from his debts; with a further request, that “the boys would come down and take their property, and make the other arrangements.” At the date of these transactions, the said Thomas had sufficient capacity to enable him in law to perform valid acts, but his mind, from habitual drunkenness, was in such a state of imbecility, as rendered the aid of friends necessary for the explanation of any business not of ordinary occurrence. The nature of the instrument, and the purport of the letter, were explained to and understood by him. From the evidence, it is to be inferred, that the indemnifying bond inclosed in the letter was executed. It does not appear, nor can it be inferred, that the sons of Hezekiah took the property, or made the other arrangements alluded to therein; but it is to be collected, that Salisbury, one of the trust negroes, was, shortly after the receipt of the letter, sold by Hezekiah and his sons, and the proceeds, or a part of them, applied to the relief of the said Hezekiah. In the mean time, Sylvia, one of these negroes, had borne issue Evan, Solomon, Elvira, Sally, and Peggy; and on the 19th of January, 1832, Hezekiah and his sons came to an agreement for the final disposition of the trust slaves and the increase thereof between themselves; and in pursuance of said agreement, and on that day, the sons conveyed to their father the negroes Russel, Sylvia, and Robert; the father and his sons, Branch and Daniel, conveyed unto the complainant, Miles Pitchford, Solomon and Elvira; the father and his sons, Branch and Miles, conveyed unto the complainant, Daniel Pitchford, Harriet and Sally; and the father and his sons, Miles and Daniel, conveyed the others to the defendant, Branch. Thomas Pitchford died in January, 1833, having all these negroes in his possession; and upon his death, they came to the possession of the defendant, Allen Pitchford, his administrator, and so continued up to the institution of this suit. On the 26th of July, 1833, the complainant Miles, conveyed to the complainant John M. Dick, Solomon and Elvira; and on...