Morrow v. Alexander

• Decision Date: 30 June 1842
• Court: North Carolina Supreme Court
• Parties: ALLEN MORROW & WIFE v. ELIAS ALEXANDER.

2 Ired. 388

24 N.C. 388

ALLEN MORROW & WIFE

v.ELIAS ALEXANDER.

Supreme Court of North Carolina.

June Term, 1842.

A deed, executed in South Carolina, for a slave then being in this State, with certain limitations over, which by the law of that State are invalid but which by our law are good, must be construed according to the law of that State, and, therefore, the limitations over are void.

A deed for a female slave and “her increase” can only convey the woman and her issue born after the execution of the deed.

Where a father signed and sealed in South Carolina a deed for a slave to his daughter, who resided in North Carolina, and delivered it in South Carolina to his son, to be given to his daughter; Held that the delivery was complete, and the deed therefore well executed in South Carolina.

The cases of Cole v Cole, 1 Ired. 460, Bank of Newbern v Pugh, 1 Hawks 198, and Tate v Tate, 1 Dev. & Bat 22, cited and approved.

Appeal from the Superior Court of Law of Mecklenburg county, at Spring Term, 1842, his Honor Judge PEARSON presiding.

This was an action of detinue for eight negroes. The possession and detention of the negroes by the defendant were admitted. The plaintiff offered in evidence a deed from one Rooker to Mrs. Mary Spears, the daughter of Rooker, dated the 29th of August, 1839, of which the following is a copy:

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                ¦“State of South Carolina, York District.¦)¦ss.  ¦
                +------------------------------------------------+
                

Know all men by these presents, that I, John Rooker, of said State and district, do, for and in consideration of the tender love and affection which I have and bear unto my daughter Mary Wyatt Spears, let her have for her entire and independent use, independently of every other person whatsoever, a certain negro woman by the name of Sylvia, and her increase, so long as she, the said Mary, may live; and after her death, for said negroes to belong to the issue of said Mary's body, if any there be; and if there should not be at said Mary's death any of her issue, then the said negroes to go to her nearest kindred by blood. Now, know all men by these presents, that I, the said John Rooker, do hereby forever warrant and defend the above mentioned negroes for the above mentioned purposes, from the lawful claim or claims of any other person or persons whatsoever. In testimony whereof I have hereonto set my hand and seal, this 29th day of August, 1839.

J. ROOKER, (Seal.)

Signed, sealed and delivered in presence of

J. H. ROOKER.”

It was proved that the wife of the plaintiff, Morrow, was the only child of Mrs. Spears by her first husband--that, in the lifetime of Spears, who resided in North Carolina, Rooker, who resided in South Carolina, loaned Spears' wife the negro girl Sylvia. Spears continued in the possession of Sylvia and her children until his death in 1837. After his death, the negroes remained in the possession of Mrs. Spears in North Carolina, and, while so in her possession, Rooker caused the deed in question to be written, signed and sealed it at his residence in South Carolina, and handed it to John H. Rooker, his son, and directed him to deliver it to Mrs. Spears. He accordingly did so, some ten days afterwards, at her residence in North Carolina. Mrs. Spears afterwards married the defendant, who took the negroes into possession in 1840. Mrs. Alexander died leaving no child by the defendant, her second husband. The plaintiffs then demanded the negroes and brought this suit. The plaintiffs' counsel insisted that, upon this state of the facts, the deed did not take effect until its delivery to Mrs. Spears, and that, as Mrs. Spears lived in No. Carolina, the laws of that State were applicable to the case. The defendant's counsel insisted that the deed took effect the instant it was delivered by the donor to his son, which being done in So. Carolina, the laws of that State were applicable to the case, and that the plaintiff could not recover without shewing that, by the laws of that State, a limitation of a life estate in slaves could be made by deed; 2dly, That the limitation in this deed by the operation of the rule in Shelley's case gave the entire estate to Mrs. Spears by the laws of this State. The facts not being controverted, the court directed the jury to render a verdict for the plaintiffs, subject to be set aside upon the questions reserved. Upon the first question reserved the court was of opinion with the plaintiffs that the case was to be decided by the laws of North Carolina: but upon the second question reserved, the court was of opinion with the defendant that Mrs. Spears took the entire interest, and directed the verdict to be set aside and a nonsuit entered. From this judgment the plaintiffs appealed.

Boyden for the plaintiffs .

W. J. Alexander, D. F. Caldwell and Barringer for the defendant .

RUFFIN, C. J.

The action is for a female slave and her seven children. The deed, under which the parties respectively claim, conveys to Mary W. Spears “a certain negro woman by the name of Sylvia, and her increase, so long as the said Mary may live, and after her decease, for said negroes to belong to the issue of the said Mary's body, if any there be; and if there should not be, at the said Mary's death, any of her issue, then the said negroes to go to her nearest kindred by blood.”

It does not...