McLean v. Hardin

• Decision Date: 30 June 1857
• Court: North Carolina Supreme Court
• Parties: ELIZABETH R. MCLEAN, by her next friend, v. DANIEL C. HARDIN AND THOMAS G. MCLEAN.

3 Jones Eq. 294

56 N.C. 294

69 Am.Dec. 740

ELIZABETH R. MCLEAN, by her next friend,

v.DANIEL C. HARDIN AND THOMAS G. MCLEAN.

Supreme Court of North Carolina.

June Term, 1857.

Personal property arising in another State to a married woman domiciled with her husband in this State, belongs to the husband according to our laws, and is not governed or controlled by the laws of the State from which it was derived.

THIS cause was removed from the Court of Equity of Alamance.

The plaintiff, Mrs. McLean, is the wife of Thos. G. McLean, one of the defendants. They were married in North Carolina, and have ever since their marriage resided in this State.

Mrs. Glass, the mother of Mrs. McLean, a citizen of the State of Mississippi, died in that State, intestate, in the year ____. Upon the distribution of the personal estate of Mrs. Glass, a negro slave, named Alick, was assigned to Mrs. McLean, and was delivered by the administrator to her husband, the defendant Thomas, who brought him to the County of Alamance, and he remained in the family for about a year, when he was conveyed by the defendant Thomas to the other defendant, Daniel, in trust, for the payment of his debts. The trustee advertised the slave in question, and was about to sell him, when he was restrained by an injunction from the Court of Equity of Alamance, issued in this case.

The plaintiff alleges that by the statute law of the State of Mississippi, she is entitled to the sole and separate property of the slave Alick, free and clear of any control or disposition by her husband, and of all liability to his debts, and he insists that on bringing the slave to this State, the same rights and incidents attach to the property in this State as belonged to it in the State of Mississippi.

She prays that the plaintiff be enjoined from pursuing the said property for the debts of the husband; that her rignts be declared by the Court as above stated, and that this Court appoint a trustee to hold the property for her use.

The answer of the trustee contends for a different conclusion from the facts of the case, and insists that as the property is movable, it vested in the husband, and must abide the control of the laws of this State.

The cause was set down for hearing on the bill, and answer, and sent to this Court.

Miller and Graham, for the plaintiff .

Ruffin and McLean, for the defendants .

PEARSON, J.

“Movable property” attends the person, and therefore, is called ““personal,” as distinguished from fixed, or real property; and the general principle is that, no matter where it may happen to be, it is subject to the law of the domicil; and although it be in a foreign country, it is governed by the same rules and laws of transfer and succession as if the owner had it in possession at home. Moye v. May, 8 Ire. Eq. Rep. 134.

The plaintiff and her husband are citizens of this State. They were married here, and have always lived here. As soon, therefore, as the title to the slave in controversy vested in her by the assent of the administrator and delivery by him, although the slave was in Mississippi, the property passed to the husband jure mariti, according to the laws of this State, and became his in all respects, in the same way as if the wife had possession of the slave at home. Being movable property, it attended her person, and in contemplation of law was in her possession at home as much as any property she had...