Lockwood & Co. v. Nye

• Decision Date: 31 December 1852
• Citation: 32 Tenn. 515
• Court: Tennessee Supreme Court
• Parties: LOCKWOOD & CO. v. NYE et al.

32 Tenn. 515

LOCKWOOD & CO.

v.NYE et al.

Supreme Court of Tennessee.

December Term, 1852.

This was a bill filed in the chancery court at Gallatin. At the October term, 1852, Chancellor Ridley presiding, there was a decree for the respondents; and the complainants appealed.

Guild, for complainants; Baldridge and Head, for respondents.

Totten, J., delivered the opinion of the court.

This is an attachment bill in chancery, at Gallatin, to subject an interest in remainder in land and slaves, to the payment of a debt.

The plaintiffs reside in the state of New York, and on the 6th of May, 1842, in the circuit court of the United States, at Jackson, Mississippi, they recovered a judgment for $4,487.04, against said Nathaniel and Daniel Nye. Execution was issued on this judgment, and returned nulla bona. On the 20th of February, 1843, Daniel W. Nye was discharged in bankruptcy, and the validity of his discharge seems not to be contested. In 1848 the plaintiffs instituted a suit in the superior court of chancery, in the state of Mississippi, against said Nathaniel Nye and others, the object of which was to discover and to subject assets fraudulently concealed to the satisfaction of said judgment. Pending that suit, the present one was instituted in chancery at Gallatin, in which it further appears that S. Nye died in 1850, leaving his last will and testament, by which he devised and bequeathed to his wife, Elizabeth, all his real and personal estate, “during her widowhood,” and at her death, or marriage, the same to be equally divided amongst his children, named in the will, the said Nathaniel G. Nye being one of them. Elizabeth Nye is in the possession of the estate, under the will, and it being suggested that the slaves would probably be removed, to the prejudice of this suit, the tenant for life is made a party, and an injunction was issued to restrain the removal of the slaves. Nathaniel G. Nye is a citizen of the state of Mississippi, and his interest in remainder, under said will, and which is attached in the present proceeding, is estimated at some $2,000. It is a joint interest with the other tenants in remainder, claiming under the same will. The bill was dismissed by the chancellor, and the plaintiffs have appealed to this court.

1. The defendant Nathaniel G. Nye insists that his interest in remainder in said property is not liable to be attached and sold in satisfaction of said judgment, because an interest in remainder is not subject, under the law, to judicial sale for the payment of debts.

The act of 1836, ch. 43, sec. 1, provides that, “when any person or persons who are non-residents of this state have any real or personal property, of either a legal or equitable nature, or any choses in action, within this state,” etc., it shall be lawful for a creditor, “without first having recovered a judgment at at law,” to file a bill in chancery to have said real or personal property, choses in action, and debts attached. This act applies expressly to non-resident, as well as resident, creditors. The act of 1838, ch. 166, sec. 1, contains, in effect, the same provisions. It applies to a non-resident debtor who “shall have property, debts, or other effects within this state,” and makes the same liable to attachment in chancery for the payment of his debts. The words of the act of 1836 are, “any real or personal property, of either a legal or equitable nature;” those of the act of 1838 are, “““property, debts, or other effects.”

Now, what is the nature of defendant's interest in the land and slaves attached? It is a vested remainder; it being a present, fixed right of future enjoyment at the termination of the estate of the tenant for life. “Vested remainders,” says Mr. Kent, “are actual estates, and may be conveyed by any of the conveyances operating by force of the statute of uses.” 4 Kent's Com. 204, 149. This applies, of course, to real estate; but it is equally true that a vested remainder in personal estate may be conveyed by deed, or any informal writing, which will be instead of an actual delivery of possession. A remainder being an actual estate, it must be considered a property, in the sense of the statute; as much so as the particular estate, for it is a fixed and present right, to take effect in possession after the particular estate is spent. The various interests, says Mr. Kent, into which an estate may be divided thus, make for many purposes, but one estate, being different parts or portions...