Jones v. . Zollicoffer

4 N.C. 645

Opinions

^* The original papers in this cause, having been by some accident mislaid, did not come into the hands of the Reporter until within a few days past. To extract from a voluminous mass of chancery forms the material parts of the cause, and to mould them into a shape fit for publication has been a work of much labor, but one upon which more might have been properly bestowed had time permitted. The aim has been to seize the mean between obscure brevity and needless prolixity. That part of the negroes so bequeathed are in the possession of Zollicoffer, who pretends a title to them under a purchase, made either by himself or his father from Sarah, the widow, who alone took upon herself the burden of executrix, and who, before the period of such purchase, had paid all the debts due from the testator's estate, and had elected to hold the negroes as legatee, and had actually so held them for many years.

The said Zollicoffer was acquainted with all the circumstances, and purchased from the widow as legatee only, and paid a consideration proportionate only to her life estate, and applied the money paid, or knew of its application, to the discharge of the widow's proper debts. The bill then prays a discovery of the names and increase of the negroes, and of the profits received from their labor, and a decree for the respective shares of the complainants.

The answer of Zollicoffer admits the purchase of a negro named Beck from the widow and three of the legatees, who assured him that they could or would make a good title to her; that he has understood that the girl was sold to pay a debt contracted for the support of the family.

April Term, 1798. To this answer a replication was filed, and the court directed five issues to be made up, the only one of which necessary to be here stated was as follows: "Whether the sale to Zollicoffer was for the purpose of paying the debts and expenses of the testator's estate, or the necessary, expenses towards maintaining the children, or young negroes belonging to the testator, or for the benefit of the widow only. And whether the said Zollicoffer had notice of the equitable claim set forth in the bill, when he purchased." (647)

October Term, 1800. On this issue the jury found that the sale of the negro Beck was justifiable, and for a valuable consideration, and that the defendant purchased without notice. The court then decreed that the complainants should pay to Zollicoffer his costs.

October Term, 1805. The complainants afterwards filed a bill of review, in which they made the following assignment of errors, viz.:

1. No such issue as that above stated ought to have been submitted to the jury, it being perfectly immaterial as to the claim of the complainants whether the said negro Beck was sold by the widow who held her as a legatee for life for any of the purposes mentioned in the said issue or not.

2. Such issue ought not to have embraced any other causes for the sale than that expressed in the answer, viz., "to pay a debt contracted for the support of the family," which could not, were it true, enable the widow, a legatee for life only, to sell the said negro absolutely and forever, and so as to divest the property of the complainants.

3. The jury have not specified the cause or purpose for which the said sale was made, nor have they said it was for any of the purposes contained in the said issue.

4. That the court should have pronounced a decree for the complainants against the said Zollicoffer for all the descendants of Beck, which were or had been in his possession, or in other words, for the complainant's shares of all the said negroes.

October Term, 1811. To this bill of review Zollicoffer demurred, and upon argument the opinion of the Court was pronounced by