Polk v. Faris

• Decision Date: 30 April 1836
• Citation: 17 Tenn. 209
• Parties: POLK and others v. FARIS.
• Court: Tennessee Supreme Court

17 Tenn. 209

POLK and others

v.FARIS.

Supreme Court of Tennessee.

April Term, 1836.

OPINION TEXT STARTS HERE

This bill was filed against the defendant, Faris, by John Polk and Agnes, his wife, formerly Agnes Brown; Robert Harper and Elizabeth S., his wife, formerly Elizabeth S. Polk; William F. Smith and Mary T., his wife, formerly Mary T. Polk; Thomas A. Polk, Alexander F. Polk, George Polk, Catherine Polk, James Polk, and William Polk. The four latter are minors, who sue by their next friend, John Polk. It alleges that on the 2d day of January, 1786, the mother of complainant Agnes, then a single woman by name of Elizabeth Strain, for and in consideration of the natural love and affection she had for complainant Agnes (who was her natural daughter), and for the better maintenance and support of the said Agnes, gave, granted, and confirmed to the said complainant Agnes, for and during her natural life, and, after the termination of that estate, to the heirs of the body of said Agnes, a young negro wench named Phillis, then about eleven years old, together with other property therein named, which deed of gift is as follows: “This indenture, made this 2d January, 1786, between Elizabeth Strain, of the state of South Carolina, of the one part, and Agnes Brown, natural daughter of said Elizabeth, of the other part, witnesseth: That the said Elizabeth Strain, for and in consideration of the natural love and affection which she hath and beareth unto the said Agnes Brown, hath given, granted, and confirmed, and doth give, grant, and confirm, unto the said Agnes Brown, one negro wench, about eleven years of age, named Phillis; likewise a cow and calf, together with all the issue of the said negro wench, and the increase of the cattle aforesaid. To have and to hold, and to enjoy, all and singular, the premises aforesaid to the said Agnes Brown, her executors, administrators, and assigns, for and during, and until the full end and term of, her natural life; and, after the determination of ‘that estate,’ then to the heirs of the body of the said Agnes Brown, lawfully issuing, and, for default of such issue, lawfully begotten, then the said negro wench and her issue, and the cattle and their increase, to return to me and my heirs forever. And the said Elizabeth Strain, all and singular, the aforesaid property to the said Agnes Brown and her heirs, lawfully begotten, against all persons whatever, shall and will warrant and forever defend,” etc.

The bill then alleges this deed of gift was made in the state of South Carolina, where the parties then resided, and was duly proved and recorded as required by the laws of said state.

It further alleges that complainant Agnes intermarried with complainant John Polk in the year 1804, in South Carolina, and that at the time of her intermarriage she was a minor, under the age of twenty-one years, and that complainants Elizabeth S., Mary T., Alexander F., George, Catharine, James, and William are children of said complainant Agnes by her said husband, John Polk. It further alleges that some time after the date of said deed, and many years before the marriage of complainant Agnes, the said Elizabeth Strain intermarried with the defendant, Alexander Faris, and that said slave Phillis, with her increase, were taken into the custody and possession of said Faris, at or about the time of his said marriage, and continued in his possession up to the time of the marriage of said Agnes; that after complainants Agnes and John were engaged to be married, and only ten days before they were actually married, the said defendant, Faris, and Elizabeth, his wife, by combining together, and taking advantage of the circumstances which surrounded the said complainant, Agnes, required and induced the said Agnes, whilst she was yet a minor, to execute some instrument or deed, by which she conveyed her interest in said slave to said defendant; the execution of this instrument was made a condition upon which only they would consent to the marriage of complainants Agnes and John, and that it was made under circumstances of duress and oppression which would authorize a court of chancery to set it aside; and that although complainant John assented to this, and gave a bond to that effect, it was done under the same circumstances.

The bill then alleges that defendant had sold some of the slaves, the increase of said Phillis, and that a suit was pending for them in Georgia; that defendant, Faris, was in possession of Dinah, one of Phillis' children, and also four children of said Dinah, to wit, Rhody, Harriet, Mary, and Austin.

The bill also alleges that defendant, Faris, is insolvent; that the absolute right to the slaves is in complainant Agnes for her life, and that, if said deed or contract made by said Agnes is allowed to stand, it only vested her interest, which was for life, and that the absolute property in remainder is vested, by the terms of said deed from Elizabeth Strain, in the complainants, her children; that complainants have good cause to believe, from hints, etc., that said defendant will remove said slaves without the limits of this state, etc.

The bill prays that the instrument executed by complainant Agnes about the period of her intermarriage, and any instrument executed by said John under like circumstances, may be delivered up and cancelled; that the title to said slaves may be divested out of defendant and vested in complainants, and that complainant, if he is entitled to the life estate, may be compelled to deliver up the negroes, or give good and sufficient security for their forthcoming at the death of complainant Agnes, and for such other and further relief as may be just and equitable.

The defendant answered the bill, which was, however, afterwards withdrawn, and the facts of the case were agreed upon by the parties, which are as follows: “It is agreed by the parties in this case that complainants John Polk and his wife, from the time of their intermarriage, and the other complainants from the time of their births, resided in the state of South Carolina until about the year 1830, when they removed to Tennessee; that the complainant Agnes Polk and her mother, Elizabeth, the wife of defendant Faris, resided in the state of South Carolina at the time of the execution of the deed of gift from the said Elizabeth to the said Agnes; that said Agnes was eighteen or nineteen years old at the time she executed the bill of sale mentioned in the bill to defendant, and not of lawful age; that the copy of the deed of gift, as set forth and exhibited in the bill, is a true copy of the original, which original was executed by the said Elizabeth Strain before her marriage with defendant; that the facts set forth in the bill are all true, and that the instrument of writing or bills of sale executed by said Agnes and John to defendant shall be produced as required by the bill, and are to be taken as executed under the circumstances stated in the bill; that the statute of limitation of three years of Tennessee and four years of South Carolina are to be considered as relied and insisted upon by defendant; that the defendant has had possession of the negroes before and ever since the marriage of complainant Agnes; that his possession has been adverse to complainant's ever since his marriage and to everybody else. And it is further agreed that defendant resided in, and had possession in, South Carolina from the time of his marriage up to about five years ago, when he removed to this state, where he has resided ever since, and that he still continues in possession of said negroes, and that defendant intermarried with Elizabeth Strain 24th March, 1786.

It is further agreed that the court shall decree upon complainant's bill and this agreement, unconnected with defendant's answer, which is withdrawn.”

Chancellor Cooke was of opinion that the absolute and entire interest in the slave Phillis passed by the deed from Elizabeth Strain to Agnes Brown, and that the statute of limitations barred a recovery by complainants John Polk and his wife, and dismissed the bill, from which decree the complainants appealed to this court.

H. A. Garrett, for complainants.

By the terms of the deed from Elizabeth Strain to Agnes Brown the latter had only a life estate in the slave mentioned in the deed, with a remainder to such of her issue as might be living at her death, and, in the event of her dying without issue, the property will be revested in Elizabeth Strain, the grantor.

The chancellor based his opinion entirely upon the rule in Shelly's case, and has adhered to it with as much strictness and rigor as did the court which decided that celebrated case. And although the rule itself may still be admitted, to some extent, to stand an unbroken pillar of the feudal system, yet it has in modern times been regarded more as a question of intention than an arbitrary and fixed rule of the common law. The reason of the rule itself has long since ceased, and no good reason can be assigned why it should not cease to exist also. Cessante ratione, cessat ipsa lex. See Co. Litt. 376, b (Butler's note).

The most eminent jurists of England have upon every proper occasion endeavored to do away its operation, and it has been condemned by many celebrated jurists. Vide Papillon v. Voice, 2 P. Wms. 471; King v. Melling, 1 Ventris, 225; Legate v. Sewell, 1 P. Wms. 87; and vide observations of Lord Mansfield in Long v. Lamin, 2 Burrow, 1107.

In Pennsylvania its authority has been disregarded (Findley's Lessee v. Riddle, 2 Binney, 139), and its weight much shaken in Connecticut. 5 Day, 98; 1 Swift's Digest, 81; and vide, also, Allen v. Mather, 9 Conn. 114.

But, be this as it may, there is not now any fixed and invariable rule that words of limitation shall never in any case be construed words of purchase. Long v. Laming, 2 Burrow, 1109.

The words “heirs of the body” are frequently construed as words of purchase, or as a mere designation of the...