Carradine v. Carradine

33 Miss. 698

• Court: Mississippi Supreme Court
• Decided: October 15, 1857
• Status: Published

Opinion

Handy, J.,

delivered the opinion of the court.

The ease presented by the complainant’s bill is substantially as follows :

In the year 1833, Thomas Rowan, of Eranklin county, in this State, executed a deed of gift, conveying to John King, and his heirs, a large number of slaves, upon the following trusts: “ That the said King, as trustee for Louisa Smith,” the stepdaughter of the donor, “ shall hold said slaves under his care and management, in such manner as he shall deem most conducive to the interest of the said Louisa Smith, until she shall arrive at the age of twenty-one years, or shall marry; and then deliver the possession of said slaves to the said Louisa or her husband, and account for the profits of the same; and in accounting for the profits, and controlling, and managing said slaves, said trustee shall, in his discretion, hire out said slaves, or work them under his own management, and account for such profits as shall be reasonable and just; as the object of this deed is to have good care taken of said property, so that the same should not be abused. And also in trust further; that after the said Louisa Smith shall arrive at the age of twenty-one years, or marry, the said trustee shall see that the said property, and the future increase of said slaves, shall not be sold or disposed of, but shall be preserved for the benefit of the heirs of the body of said Louisa Smith, and shall vest in the heirs of her body upon her death, in case she shall die leaving heirs of her body; but in the event, that the said Louisa shall die without leaving heirs of her body, then the said property and increase, shall vest in the legal heirs of the said Louisa by her mother’s side, and not in any of her heirs by her father’s side.”

Louisa Smith intermarried with Henry F. Carradine, in the year 1888, and of that marriage, the complainant, James S. Carradine, was the only issue; and shortly after the marriage, the trustee delivered over the property, according to the terms of the deed; and subsequently Louisa died, and Henry F. Carradine afterwards intermarried with Mary C. Carradine, of which marriage several children were born; and Henry F. Carradine died, leaving his widow and children, who are the defendants in the bill.

Mary C. Carradine became entitled to several other slaves under a deed in trust from one Grayson, which slaves were delivered to her after her marriage to Henry F. Carradine, and during his life, and before the year 1839.

Henry F. Carradine conveyed all these slaves, as well those embraced in the deed of Rowan as those last referred to, to one Ferriday, who conveyed them to one Roach, who conveyed them to a trustee, first to pay certain specified debts, and ultimately to the use of the children of H. F. Carradine; and Mary C. Carradine, the widow, has possession of the greater part of the slaves, claiming title under that conveyance.

The bill avers, that no title passed by the conveyance of Roach, because prior thereto a judgment had been rendered against him, in an action of replevin for the slaves, brought by him against Henry F. Carradine; which is relied upon as res adjudícala against his title.

, The object of the bill is to obtain a decree in behalf of the complainant, for the slaves embraced in the deed of Rowan, and for their hire; but if unsuccessful in this, it seeks a recovery of his interest in the entire slaves, as one of the children of H. F. Carradine, under the trust deed made by Roach.

The defendants filed a demurrer to the bill, which was overruled, and from that order this appeal was taken.

The first and most important question to be determined is, what estate in the property did Louisa Smith take under the deed -of gift, upon the property being delivered to her after her marriage ?

It is insisted- in behalf of the appellants, that the life estate conveyed to her use, became vested when the property was delivered to her; and under the limitations of the deed, that she took the title absolutely, divested of the subsequent limitations contained in the deed, by operation of the rule in Shelley’s case; and therefore, it being personal property, that the absolute title vested in her husband. Consequently, that the limitation to the “ heirs of her body,” under which the complainant claims, is inoperative and void.

On the contrary, it is insisted that the rule in Shelley’s case has no application to this deed; and in support of that position, several grounds are taken, which involve the merits of the case upon the main point of controversy, and which we will proceed to consider.

1. The first objection to the application of the rule is, that the estate limited to Louisa Smith, by the deed, is not one of freehold, or what would be equivalent to an estate of freehold in real estate; that she was entitled only to the profits of the slaves before marriage, or attaining to the age of twenty-one years, and thereafter she was entitled to the possession, but under the restriction against disposing of them, the trustee, who was invested with the complete legal title, being required to preserve them for the benefit of the heirs of her body, &c.

In determining the legal import of the limitations of the deed, we must ascertain what was the intention of the donor, according to the settled rules of law applicable to such cases, and give effect to the limitations agreeably to such rules. Let us look then at the terms of the instrument.

The first feature in it is, that it vests the legal title in fee in the trustee, subject to the following trusts: 1. To hold the slaves under his care and management until Louisa should become of age, or marry, in the manner deemed by him most conducive to her interest. 2. Then to deliver them into her possession, and account for their hire or profits previously accrued. 3. That the trustee, after such delivery, should see that the slaves were not disposed of, but that they should be preserved for the benefit of the heirs of the body of Louisa, and should vest in the heirs of her body upon her death, in case she should die leaving heirs of her body; but if she should die without leaving heirs of her body, then they should vest in her legal heirs by her mother’s side, &c.

It is contended in behalf of the appellees, that the legal estate did not vest in Louisa upon the delivery of possession to her after her marriage, because she was expressly debarred of the power of disposing of them, and the trustee was required to see that they were preserved for the heirs of her body, &c.

But it is well settled, that if the import of the previous limitations, be such as to vest the absolute estate in the first taker, subsequent restrictions, inconsistent with such an estate, would be void. Thus it is settled that a limitation to the first taker for his life and no longer; or only for life; or for his life and no longer, and that it shall not be in his power to sell, dispose of, or make way with any part of the premises, and the like, will not prevent the operation of the rule. 1 Preston on Est. 865, 366; Hayes v. Foorde, 2 Wm. Blacks. Rep. 698; Fearne on Rem. 174. Mr. Jarman says, “Words, however positive and unequivocal, expressly negativing the ancestor’s estate beyond the period of its primary express limitation, will not exclude the rule; for this intention is as clearly indicated by the mere limitation of a life estate, as it can be by any additional expressions; and the doctrine, let it be remembered, is a rule of tenure, which is not only independent of, but generally operates to subvert, the intention.” 2 Jarman on Wills, 246.

The expressions requiring the trustee to see that the slaves were preserved, so far as they affect the freehold character of the estate limited to Louisa Smith, cannot have greater force than the words restraining her power of disposition; and we think it clear, that they cannot he understood to impair or defeat the estate already limited to her, if, apart from these expressions, she had a legal estate of freehold in the property.

2. And this brings us to the second reason relied upon to show that the rule cannot apply, which is, that the two estates are of different qualities, that of Louisa Smith being equitable, and the remainder being legal. It is insisted that the legal estate was in the trustee, who, by the terms of the deed, held it during the life estate of Louisa Smith, and was required to preserve it for those in remainder, to vest in them upon her death; and hence that the trust was executory, and not embraced within the rule in Shelley’s ease.

It is true that before the marriage, the legal estate was held by the trustee for Louisa Smith. But after her marriage, her right of possession vested by mere operation of the deed, and the legal title in him was held for her use, or in trust for her. This use or trust was executed in possession, by operation of the Statute of Uses; and upon delivery of possession, the legal estate became vested in her or her husband. The trustee had no further power over the property. He was not required to make any conveyance to her, nor authorized to take any further control of the property. Her title was derived from the deed of gift; and if the subsequent limitations had been valid, upon the determination of her life estate, the property would have vested in the parties in remainder, in virtue of the deed, no act on his part being required or authorized. Nor was he clothed with any legal power over the property, by the expression, that he should see that the property should not be sold or disposed of, and. that it should be preserved for the benefit of the heirs of the body of Louisa Smith. His power over the slaves was exhausted by the delivery of possession upon her marriage, and nothing further was necessary to vest the rights intended to be conveyed. He had no power to resume possession of the property for any purpose, nor to interfere with the control of it. Such power cannot be derived by implication; for it must be presumed, that if any active power over the property had been intended to be continued in him, the deed would have provided that he should retain the title until the determination of Louisa Smith’s estate, and if she died without issue, that he should then convey it according to the declarations of the deed. Nor was it necessary; for if the limitations in the deed were all valid, the parties in remainder had the power to prevent the alienation by the tenant for life. These expressions, therefore, amount to nothing more in legal effect, than a restriction upon alienation, or a desire that the property should not be disposed of, which we have above seen, cannot prevail against the estate vested by the previous limitations of the deed.

This view of the subject is amply sustained by the authorities. In Broughton v. Langley, 2 L. Raymond, 873, lands were devised to trustees in fee, and the trustees and their heirs were to stand seised to the intent and purpose of permitting A. to receive and take the rents and profits for and during the time of his life, and after his death, to stand seised to the use of the heirs of the body of A. with remainder over; with a proviso, that the trustees and A. might make a jointure to his wife; and the question being whether A. had an estate tail executed, or not, it was held that he had; and Lord Holt said, that this would have been a plain trust at common law, and what at common law was a trust of a freehold or an inheritance, is executed by the statute.

This is a much stronger case in favor of the continuance of the trust in the hands of the trustees, than the present case; and Mr. Fearne remarks upon it, “ that the circumstances attending the power (to make a jointure), seemed to be very strong against an estate tail; that power being made to depend upon the consent and concurrence of the trustees; and they being required to join in executing it, and of course in the conveyance for that purpose; which seems to have been an evidence of the testator’s intention, that the estate should remain in them; and consequently, that he did not intend that A. should take any legal estate at all, much less an estate tail.' But however, the strength of the general rule prevailed against these arguments of intention.” Fearne on Rem. 159. And it is the settled doctrine that limitations of trusts which are executed, are subject to the same rules as limitations of legal estates. Preston on Est. S82; Fearne on Rem. 157.

Was the trust, then, in this case executory, after the delivery of possession to Louisa Smith and her husband ?

Mr. Fearne thus defines executed and executory trusts, drawing the distinction between them which, he says, has run through the several cases affording subject-matter for its application ; executed trusts being “ when the trusts are directly and wholly declared by the testator, or to attach immediately on the lands under the will itself;” and executory trusts being, “ those which are only directory or prescribe the intended limitations of some future conveyance or settlement, directed by the will to be made for effectuating them.” Fearne on Rem. 148. Mr. Jarman says,<! A trust is said to be executory or directory, when the objects take not immediately under it, but by means of some further act to be done by a third person, usually him in whom the legal estate is vested.” 2 Jarman on Wills, 253. Chancellor Kent says, “ A trust is executory when it is to be perfected, at a future period, by a conveyance or settlement, as in case of a conveyance to B., in trust to convey to C. It is executed, either when the legal estate passes, as in a conveyance to B. in trust, or for the use of 0., or, when only the equitable title passes, as in the case of a conveyance to B., to the use of C., in trust for D.” 4 Kent’s Com. 304, 305. 'Mr. Preston says, “ The conclusion that a trust is executed or executory, must depend upon the quo animo, on the inquiry, whether another instrument be in the contemplation of the party, as the act which is to give full and complete effect to the principal object he has in view.” Preston on Est. 388.

All these definitions, and the cases in which the nature of the two kinds of trusts has been involved, and the distinctions between them settled, clearly recognize the rule that a trust is not executory, unless the instrument creating it contemplates some future act of conveyance by the trustee, and without which the estate would not vest in the cestui que trust. And tested by this rule, it is clear that the trust in behalf of H. E. Carradine and wife was executed and not executory, after delivery of possession of the slaves to them; and their estate became vested in possession, without any power of control by the trustee. Nor was any act necessary or required to be done by him with reference to the estate attempted to be limited to the parties in remainder; for if that estate had been valid in law, it would have taken effect in possession immediately after the determination of the particular estate of Carradine and wife, without any act on the part of the trustees.

Several authorities are relied on in behalf of the appellee to show that the legal title continued in the trustees after the delivery of possession to Carradine and wife; but the nature and circumstances of the trusts to which they apply, are quite different from that in this case.

The cases cited from Eearne, 52 and 210, are cases of devises of real estate to trustees and their heirs, in trust, to permit certain ' parties to receive the rents and profits, or that the trustees should pay over the rents and profits to them, during their lives, with remainder to heirs in tail. It was held that the legal estate was in the trustees, and that the parties entitled to the rents and profits for life to be paid by the trustees, had only an equitable estate, the pernancy of the rents and profits.

In Shapland v. Smith, Brown’s Ch. Cases, 75, the testator devised lands to trustees in trust, yearly, after paying taxes, repairs, and expenses, to pay the surplus to his brother for life, and after his decease, to the heirs of his body. It was held that the trustees, having to pay taxes, &c., had an interest in the premises, and retained the legal estate for the life of the brother.

Upon the same principle, in the case of Silvester v. Wilson, 2 Durnf. & East, 444, a devise to trustees in trust to receive the rents and profits during the life of A., and to apply them to the maintenance of A. during his life, remainder to the heirs of the body of A., was not a use executed to A., because the purposes of the trust could not be performed unless the trustees received the rents and profits during the life of A., the trust being special and personal, and hence that the legal estate continued in the trustees during his life.

The case of Porter v. Doby, 2 Richardson Eq. Rep. 49, much relied on in behalf of the appellees, is similar to that of Silvester v. Wilson, and was decided upon the same reason. The trust was to take possession of slaves, and apply the proceeds to the maintenance of the testator’s daughter and son, during their lives, and after the son’s death, to his heirs ; and if the daughter survived the son, the trustee was to keep in his hands a sufficiency for her comfortable support for life, the residue to the heirs of the son. The daughter survived, and it was held that the trust was not executed during the son’s life, and that the trustee retained the legal title during the daughter’s life.

All these cases, and others of a like character, are resolvable upon the principle, either that the legal estate was vested in the trustees, and that the object of the trust did not require that the entire legal estate should be divested out of the trustee in order to the enjoyment of the benefits intended to be granted to the cestui que trust; as in cases of real estate, where the trustee under the limitations of the deed stands seised to the use of the parties beneficially interested, according to the nature of their estates, or that it was necessary for the execution of the trusts that the trustee should retain the legal title and the control of the property. Rut they do not support the legal title of the trustee in this case, where the terms of the deed did not continue his estate, after delivery of possession to Carradine and wife, and where the purposes of the trust did not render it necessary that he should have possession or control of the property. And consequently, we are of opinion that the legal estate was vested in Carradine and wife upon the delivery of possession, and that it was the same quality as the subsequent estate limited upon it, and that the objection to the operation of the rule in Shelley’s case, on this ground, is untenable.

Again: it is contended, in behalf of the appellees, that the rule in Shelley’s case cannot control the limitations of this deed, because the rule is modified by the twenty-sixth section of the Act of 1822, Hutch. Code, 610; and in virtue of the provisions of that statute, the limitation to the heirs of the body, in this deed, creates an estate of purchase, and not one by limitation.

It is held in Hampton v. Rather, 30 Miss. 205, that this section of the statute was designed simply to lay down a certain intelligible and uniform rule of construction, by affixing to certain words used in deeds and wills a definite and fixed signification, different from that which had been theretofore attached to the same words by the court. And it is also distinctly stated, that the rule in Shelley’s case, at least so far as personal property is concerned,, has not been abolished, but still exists here, and will be applied whenever it ex.pressly or plainly appears from the instrument creating the estate, that it was the intention of the grantor, by the use of the words “heirs,” “heirs of the body,” “issue,” &c., to specify a class or denomination of persons to take the inheritance in succession, from generation to generation, in their character as heirs of the ancestor.

We do not doubt, therefore, that the limitations of this deed are within the operation of the rule, and that this statute does not affect their import.

The next question to be considered is the effect of the suit of Roach against Henry F. Carradine, for the slaves in controversy, and the judgment thereon in favor of Carradine. It is insisted, in behalf of the appellee, that that judgment is but an adjudication against the title of Roach, under whom the appellants immediately claim, which is binding upon Roach and those claiming under him, and is conclusive against his and their title; and 2d. That Carradine was estopped from setting up title in himself to the slaves, having admitted, in his defence of that suit, that the title was in his son, the appellee, and made defence to the suit on that ground; and that this estoppel concludes the appellants who derive title through him.

1. As to the force of the adjudication, it appears that, although the judgment was rendered in the Circuit Court against Roach, yet he was about to prosecute his writ of error to have the judgment reversed in this court; and in order to avoid further litigation, that Carradine agreed that the title of the slaves was in Roach, by virtue of the deed made by Carradine under which Roach claimed; and that the litigation was compromised by Roach executing the trust deed, under which- the children of Carradine are to be entitled to the property, after the payment of certain debts to which it was held bound. Whatever then may have been the effect of the judgment against Roach in the Circuit Court, it is evident that the litigation was not ended, and that the compromise which resulted in the admission of Roach’s title, should be considered as having been made pending the litigation, and that the title thereby acquired by Roach is as valid as if acquired during the pendency of a writ of error to the judgment against him.

But if this judgment is to be considered as an adjudication of the title against Roach, it is fatal to the claim of the appellee under the deed from Rowan; for in order to be available to the appellee, by way of estoppel, it must be mutual; and if so, it would be conclusive that the title to the property was in Henry 3?. Carradine.

2. Admissions made in the progress of a suit, as a substitute for proof of any material fact, or by pleading, and setting forth particular facts as grounds of complaint or of defence, amount in law to estoppels; but they are only so as to the parties to the suit, and in the same suit in which they are made. It would be contrary to all principle to hold a party absolutely concluded by allegations which he had seen fit to make, or by grounds of defence which he thought fit to set up, in one suit, when he was afterwards sued by another party in an action involving the same matter. Such allegations or admissions are made with reference to the particular suit, and cannot operate as estoppels beyond it; because as to strangers to it, there is no privity or mutuality; and as their rights are wholly unaffected by such allegations, admissions, or defences, so must his rights, as against them, not be concluded thereby. It is a common thing for parties sued for the recovery of property, to plead property in a stranger, and rely upon that as a defence, and successfully; but it was never heard of, that the stranger brought his action against the defendant founded on that evidence alone, and the defendant was held to be estopped by it. Even a judgment rendered upon the question of property, is not binding either in favor of the rights of strangers or against them, except in proceedings in rem ; much less are the mere incidental admissions or grounds of defence. Greenl. on Evid. §§ 27,171, 524, 528.

It only remains to consider the last ground of relief set up in the bill. In the event, that the complainant’s claim under the deed of gift should not be sustained, the bill seeks a division of the slaves, and the recovery of his share as a distributee of his father, who died intestate, and no administration has been taken upon his estate.

But it is manifest that he is not entitled to this relief under the allegations of the bill, and the exhibits to it.

As to the interest of Henry E. Carradine in the property, that was disposed of by the deed through which Roach claims, which was afterwards consummated by his recognition of Roach’s title, in accepting the deed made by Roach for the benefit ultimately of Carradine’s children; and he had no estate in the property which could be the subject of distribution to his children, as his property.

With respect to the benefit of the property to which the appellee may be entitled under the trust deed made by Roach, and as one of the children of Carradine, the bill does not show that the trust is in a condition to entitle him to claim a division of the property as one of the beneficiaries under the deed of trust. The bill does not show that the promissory notes mentioned in the deed, and required to be paid before the property should be applied to the use of the children of Carradine, have been paid; and without such showing, it is plain that the complainant was not entitled to any relief in this aspect of the case.

It follows, from the foregoing views of the case, that the court erred in overruling the demurrer; and the decree must therefore be reversed, and the bill dismissed, but without prejudice.