Dupree v. Dupree

• Decision Date: 30 June 1853
• Citation: Dupree v. Dupree, 45 N.C. 164, 59 Am.Dec. 590 (N.C. 1853)
• Court: North Carolina Supreme Court
• Parties: JAMES W. DUPREE v. LEWIS B. DUPREE.

45 N.C. 164

59 Am.Dec. 590

JAMES W. DUPREE

v.LEWIS B. DUPREE.

Supreme Court of North Carolina.

June Term, 1853.

A child en ventre sa mere cannot take as donee by a common law conveyance.

Therefore, where A. executed a deed by which in consideration of natural love and affection, she gave to the “sons of Robert and Rachel Dupree, and to the next of their heirs lawfully begotten of their bodies” a share:-- Held, that a child of Robert and Rachel at that time en ventre sa mere took no interest in the slave.

This cause was transmitted from the Court of Equity for Pitt County at Spring Term, 1852.

The case is sufficiently stated in the opinion of the Court.

Moore (with whom was Winston, Jr.,) argued:--

1. The plaintiff was born within 280 days from the execution of the deed, and so was in esse. Coke Lit. 139, n. B.

Infants en ventre sa mere are capable of taking a gift. The case of Reeve v. Long, 1 Salk. 227, which decided that a devise of a remainder to an unborn child, carried the estate to an infant en ventre sa mere was complained of only on feudal reasons-- that there was no one to perform the services of the tenant. 2 Bl. Com. 109, and notes. That decision stands for law to this day, and has always been followed. Bl. Com. ut supra, n 13. The Stat. W. 3, supposed by some to have been enacted to affirm the doctrine of Reeve v. Long, was not so passed; but if it had, it has no force here. Devises to infant en ventre sa mere, per verba de presenti, are good without doubt; yet devises are statutory conveyances.

Infants en ventre sa mere are persons in rerum natura, and are considered born for all beneficial purposes--for the purpose of taking under a deed by settlement under the description of a living child. Doe v. Clarke, 2 H. Bl. 399; Doe v. Lancashire, 5 T. R. 49. At page 61, Buller says, “all the cases cited establish this point, that there is no distinction between a child en ventre sa mere, and one actually born.” In Doe v. Clarke, it is said, “it seems now settled, that an infant en ventre sa mere, shall be considered generally speaking, as born for all purposes, for his own benefit;” and in Watkins' Law of Descent, 142, it is now laid down as a fixed principle, that wherever such consideration would be for his benefit, a child en ventre sa mere shall be considered as absolutely born.” In Wallis v. Hodson, 2 Atk. 117, lord Hardwicke says, “I go on the reason that the infant is a person in rerum natura, and both hy our law and the civil law, a child, as much as if born in the father's lifetime. Such child is in being for all intents and purposes, whether beneficial or prejudicial to his interest. Blackburn v. Stables, 2 Ves. & B., 369. Thelluson v. Woodford, 4 Ves. 342. See Woner v. Butts, 1 Cond. E. Ch. Rep. 90. 2 Vern. 710. 1 Ves. 85. Ib. 156. Such infant may have a guardian, may bring a suit by prochein amy to stay waste, and may justify, in like manner, the detention of title deeds. Macpherson on Infants, 364, (Law Lib.) Being a person in esse, it must be capable of taking by gift, unless there is some known disability. Its feebleness is no such disability. On the contrary the law aids that, whenever or wherever it may exist. If it be said that it cannot be present to receive, and delivery of the thing is absolutely necessary to the perfection of the gift, this will decide only that they are deprived of one mode of donation. A gift by parol to an absent infant is void; but a friend may receive for such infant, and the gift is then well made. And why may not a friend receive for the absent unborn infant. Both are equally persons in esse.

In this case a delivery of the thing was not necessary, because there was a deed made and delivered to a friend. A deed conveying slaves to three, as tenants in common, is well delivered to all by delivery to one for all. A delivery to such an infant is as possible, as a delivery to an absent infant born, or to an idiot, or to an absent feme. In all these cases, registration by the donor, or delivery of the deed to a friend is a sufficient delivery. Actual capacity to assent to the gift or deed is not requisite; although known not to exist it is always presumed, if it be for the benefit of the donee. Macpherson, ut supra, 455. There is no reason why a deed made to an infant en ventre sa mere, and registered by the donor, or delivered to a friend may not be good. It is just as capable of assenting as an infant just born, or an idiot, and just as capable of taking possession of it. A guardian or friend only, in any of the cases can protect the property.

2. The Statute of Limitations does not apply. The petition being between the two tenants in common is the same to the plaintiff, whether one held all or only a part, because, being undivided between plaintiff and defendant, the defendant's holding was consistent with his title and that of the plaintiff. Cloud v. Webb, 3 Dev. 317. Thomas v. Gorman, 4 Dev. 223; Collier v. Poe, 1 Dev. Eq. 55.

Rodman, contra

.

PEARSON, J.

On the 9 th day of January, 1817, Patience Goff executed a deed by which, in consideration of natural love and affection, she gave and conveyed to her grand-children, “Washington and Lewis Dupree, sons of Robert and Rachel Dupree, and to the next of their heirs lawfully begotten of their bodies, (Peggy Ann Dupree only excepted,) a slave named Rose.” On the 9 th day of October, 1817, the plaintiff, who is a child of the said Robert and Rachel Dupree, was born, and by this bill he claims one third of Rose and her increase.

It is conceded, that no other after-born child of Robert and Rachel Dupree, except the plaintiff, could take under this deed of gift; and his claim is put upon the ground that he was in ventre sa mere, at the date of the deed, and was in contemplation of law in esse, and capable of acquiring a right of property. For, according to the calculation by the ordinary course of nature, he was conceived six days before the date of the deed, and the question is, can an atom, a thing in its mother's womb, six days old, acquire a right of property by a common law conveyance?

Such an idea may be consistent with the refinements of the civil law, or with the doctrine of uses and of executory bequests and executory devises, which is borrowed from the civil law, but is wholly at variance with the plain, direct, and tangible maxims of the common law; and its bare suggestion would have shocked the sages of that practical system of laws, built up by immemorial usage and common custom, and having for its basis certain maxims, all of which rest upon the fundamental principle that property cannot be acquired or lost, except by some open, overt act palpable to the senses, about which there can be no mistake.

Property must at all times have an owner. One person cannot part with the ownership unless there be another person to take it from him. There must be a “grantor and a grantee, and a thing granted.” In considering the application of these maxims, the question may be disencumbered by leaving Washington and Lewis Dupree out of view, and considering the deed of gift as purporting to be made to the plaintiff. For he claims by purchase, as distinguished from descent, succession or distribution, and must make his title clear upon an independent footing, being entitled to no aid from Washington and Lewis, as trustees for...