Hogg v. Odom

1 Dudley Rep. 185

• Court: Burke County Superior Court, Ga.
• Decided: July 1, 1832
• Status: Published

Opinion

The complainants set up claim to certain slaves, which claim is founded on the following bill of sale :

“ State of South Carolina, Edgefield District.

“ Know all men by these presents, that !. Saundi rs A obles, “ of the State of South Carolina, in the county of Ldgefitdd, “ have bargained and sold in plain and open mat ket, unto “ the children of Nancy Jones, at. the death of Leonard “ Nobles three negroes and their increase, to wit, Silva, Jim “ and Luce, for and in consideration of thr iuot of three “ hundred pounds sterling of the State aforesaid, which said “ bargained negroes, together with their increase, the said “ Saunders Nobles unto the children of the said Nancy Jones “ at the death of the said Leonard Nobles aforesaid, shall and u wj¡]5 against the claims of all other person or persons what- “ soever, warrant and forever defend by these presents. In “ testimony whereof I have hereunto set my hand and seal “ this 25th day of December, 1786.

“ Saunders Nobles.”

“ Present

“ Benjamin Cook,

“ Robert Lang,

his

“ Thomas x Moseby.”

mark.

The children of Nancy Jones were then five in numbei. About the year 1794, the complainant Mary who is also a child of Nancy Jones, was born, Leonard Nobles being then in life. While she was yet an infant, and without other guardian than her mother, there was a division of the negroes named in the bill of sale, and of their increase among the children of Nancy Jones. The complainants alleging that the complainant Mary was not a party to the proceeding which took place at the division, and was therefore not bound by it; and further, that in the division she was defrauded, by the manner of it, of her just rights, and that they have filed this bill for relief against the representatives of Dennis Nobles, who was the eldest son of Nancy Jones, and who at the death of Leonard Nobles received into his possession the said slaves and their increase, for the use of his brothers and sisters. At the trial a verdict was rendered for the complainants, and a new trial is moved for by the defendant, because the verdict is against law and against evidence.

There were several important questions much argued at the trial of the cause, which it is not necessary the court should now consider. It cannot be at all material whether the defendant or those whose estate he represents or through whom he claims title, are liable to account as implied trustees ; nor if they ever were liable, whether the statute of limitations can now be invoked to their aid and protection, unless the complainant Mary originally had some right, property, or interest in the slaves which might become the subject of such trust, which the defendant denies she ever had.

1. Because the deed or bill of sale under which she claims is void for its uncertainty, there being no grantee or bargainee named in it.

2: Because if the deed or bill of sale be not absolutely void; and if parol evidence may be admitted to show the real persons intended under the designation of Nancy Jones’ children, still the complainants can take nothing under the deed, as the complainant Mary was not born until eight years after it was executed, and could not therefore have been a party to it.

The deed purports to be for a valuable consideration, conveying a present interest, though to be enjoyed in future; in the making of which there is not alleged to have been the slightest fraud, and if it be void at all, it must be for its uncertainty alone.

This uncertainty is said to be as to the grantees or bargain-) ees. They are designated by the name of the children oft Nancy Jones, Now, though it is a rule that every grant must/ be certain, not only as to the thing granted, but as to the par-; ties, yet it is also a maxim of law that nothing shall be voidj which may by possibility be good, and that that is sufficiently certain which may be rendered so. The deed will not there-^ fore be suffered to fail for uncertainty, if it can be shown who were the persons meant by the words Nancy Jones’ children.! The bargainees or individuals known as the children of Nancy^ Jones, were, at the time the deed was executed, as has been ' stated, five in number, and who might clearly take under the deed. The complainant Mary, though a child of Nancy ' Jones, was not born until several years afterwards, and the 1 question whether she too can claim any right under the deed, • if answered in the negative, is conclusive of this case.

That in every conveyance there must be a grantor, a grantee, and thing granted ; and that there must be a grantee who may take by force of the grant at its beginning, are familiar rules of the common law. In this deed, there are grantees, who were capable of taking at the time of its execution. No trust is raised, nor any remainder created by it for after born children. It purports to be a deed of bargain and sale founded upon a contract, in plain and open market, for a valuable consideration, passing from the bargainees to the bargainor, and vesting a present title in the bargainees, though the ne-groes were to be possessed at a future period ; nor is it at all material to the present question, whether Leonard Nobles took a life estate in them by implication, or Saunders Nobles reserved in them an estate for Leonard Noble’s life.

The negroes sold went for their price, and they only who) paid the price became entitled to them. But even if it had, been a voluntary gift, and not a sale, as it was, unless the do-/ nor had used dear words to create a remainder for the after, born children of Nancy Jones, this complainant could take/ no interest under the deed.

The case of Stroman and Wife v. Rottenburg, 4 Dess. 268, is a case vary l.Le the present. That was upon a deed of gift to the grand ddrir: n of ihe do,;oi, by his daughter Catharine, Vj lake effect ahm h, d -41', and the de-iee u hich excluded aftC'- boro children was, upon appeal, unanimously affirmed!. Aral this case is in accordance with the case of Ayton v. Ayton, 1 Cox’s cases, 327.

It being the opinion of the court that the verdict is warranted neither by law nor evidence : It is ordered that it be set aside, and a new trial granted.