#### *Leslie’s Ex’or v. Briggs.

January, 1834,

Richmond.

Fieri Facias — Sale of Interest in Remainder under— What Title Passes* — Case at Bar. — Two persons being- entitled to a remainder in slave property expectant on a life estate therein, a fi. fa. is sued out against one of the remaindermen, and levied on some of the slaves, then in his possession by consent of the tenant for life, and the slaves so taken in execution are sold by the sheriff; then this remainderman conveys all his estate to a trustee for the benefit of his creditors ; and after the death of the tenant for life, in a suit brought by the trustee against the two remaindermen for partition, the slaves so sold by the sheriff, are allotted to the trustee, the purchaser at the sheriff’s sale not being a party to that suit: Held, at the time of levying the execution and sale made by the sheriff, the debtor had no several property in any particular slaves, and so the sale by him made, passed no title to the purchaser ; nor did the subsequent division in the suit to which the purchaser was not a party, enure to *13give Mm a legal title in the slaves he had purchased under the execution.

Same — Interest in Remainder in Personalty— Quiere.— "Whether an Interest in remainder in persona] chattels, can he taken in execution under a li. fa?

Fraudulent Alienations — Bailment of Slaves — Quaere.— Whether a bailment of slaves for hire, for ten years, "without deed recorded, is fraudulent as against creditors of the bailee, upon the principles of the provision of the statute of frauds of Virginia, 1 Eev. Code, ch. 101, § 2 ?

In an action of detinue for a female slave named Milley and four others her children, brought by Leslie’s executor against Briggs, in the circuit court of Spotsylvania, there was a case agreed by the parties, to betaken by the court instead of a special verdict, stating the following facts :

Neil M’'Coul the elder deceased, by his last will and testament, bequeathed all his slaves to his wife for life, remainder to his two sons John and Neil; and among the slaves so bequeathed, was the female slave Milley, and the other four slaves in question were her children, born after the testator’s death and during the life of Mrs. M’Coul, the legatee for life.

The testator’s executors assented to the legacy; and Mrs. M’Coul took and held all the slaves so bequeathed to her, *and their increase, until the year 1807, when Neil M’Coul the younger took possession of the slaves Milley and her children, with the consent of Mrs. M’Coul, and under a contract of hiring between her and him, and continued to hold them, with her consent and under the same contract, uninterruptedly, till the year 1817.

In October 1817, the sheriff of Henrico levied several executions [writs of fieri facias] sued out by various creditors against Neil M’Coul the younger, on the slaves Milley and her children, then in his possession, and the same were regularly sold by the sheriff to satisfy the executions, to the plaintiffs’ testator John Leslie, for 2430 dollars cash, and the slaves were thereupon delivered by the sheriff to Leslie. Neil M’Coul was present at this sale of the sheriff ; and no objection to the sale was made by him or any one else.

But, in the year 1819, Mrs. M’Coul, the legatee for life, regained possession of these slaves, claiming her life estate therein, and continued to hold them till her death, which happened in October 1823.

Meantime, by deed dated in October 1822, and duly recorded, Neil M’Coul the younger conveyed to the defendant Briggs, all his estate, real, personal or mixed, in possession, reversion or remainder, upon trust to secure the payment of debts in the deed mentioned ; and after making that deed, he took the oath of an insolvent debtor, and was discharged as such, surrendering, in a schedule of his estate, whatever interest might remain to him after satisfying the debts provided for in the deed of trust.

Sometime after the death of Mrs. M’Coul, the legatee for life, a suit in chancery was brought in the country court of Spotsylvania, by Briggs and others claiming the rights of Neil M’Coul, against John and Neil M’Coul, the legatees in remainder, in which the plaintiffs prayed a division of the slaves bequeathed by the will of Neil M’Coul the elder to his two sons, the defendants in that suit, and that the defendant Neil’s moiety thereof should be assigned to them. Leslie’s executor was not a party to that suit. The court made a decree according to the prayer of the bill, directing *that the slaves should be divided by commissioners, and that Neil M’Coul’s moiety should be delivered to the plaintiffs in that suit holding his rights in the subject. A division of the slaves was made by commissioners in pursuance of the decree, and Neil’s moiety, including the slaves Milley and her children demanded in this action, were delivered to Briggs, the trustee in the deed of October 1822, and the defendant here.

And the question referred to the court, was, Whether, upon this state of the case, Leslie’s executor was entitled to recover the slaves Milley and her children, in this action against Briggs. The circuit court held that he was not, and gave judgment for Briggs; from which Leslie’s executor appealed to this court.

The case was argued here, by the attorney general and Taylor for the appellant, and by Harrison for the appellee.

I. There was one point very earnestly debated at the bar, but not decided by the court; namely, Whether an interest in remainder in personal chattels, is a subject that may be taken in execution under a fieri facias against the remainderman ?

The counsel for the appellant argued, that such a remainder was personal property of the debtor, which he might dispose of by sale, pledge by mortgage, or bequeath by testament, which was transmissible to his distributees in case of his death intestate, like any other property, and of which the value in the market was as capable of being estimated, as that of personal property in possession; that, therefore, there was no good reason why it should be protected from his just creditors: that the property might well be taken under execution against the remainderman, and sold subject to the rights of the tenant for life or other particular estate; and that, in the present case, the taking of the slaves under the execution against the remainderman, did no injury to the tenant for life, since at the time of seizure, they were actually in the possession of the remainderman.

*The counsel for the appellee insisted, that an estate in remainder in a personal chattel, could not be taken under a writ of fieri facias, because such an interest was, in its nature, not tangible, not capable of manual seizure and delivery, and could have no locality ; nor could the property itself be taken by the sheriff, in order that the debtor’s remainder in it might be sold, without injury to the particular tenant. He cited 2 Bac. Abr. Execution, C. 4, P. 715 : Bro. Abr. Pledges, 28, Id. Execution, 107; Deyer 67b ; 4 Com. Dig. Execution, C. 4, P. 229, 230, and the notes there in Hammond’s edition. Scott v. Scholey, 8 East 467, 484.

II. The appellant’s counsel contended, that supposing the interest of Neil M’Coul was only an interest in remainder, and not subject to be taken in execution, yet as the sheriff had in fact taken the property, and as his sale of it was made in M’Coul’s pres*14ence, to satisfy his just debts, without the least, objection on his part, the transaction was tantamount, in effect, to a sale by the remainderman himself, and neither he nor any other person claiming under him by subsequent conveyance, could be heard to impeach it.

To this it was answered, that the sheriff’s sale was made in virtue of his official authority only, and though M’Coul was present, he was, for aught that appeared, merely passive.

III. The appellant’s counsel insisted that, in regard to his creditors, M’Coul had an estate in possession in the slaves in question, at the time of the seizure and sale thereof by the sheriff ; for they had been bailed to him by the tenant for life, ten years before, and he had held continual uninterrupted possession ; and upon the principle of the provision of the statute of frauds, 1 Rev. Code, ch. 101, § 2, p. 373, such a bailment, so long continued, unless evidenced by deed duly recorded, was fraudulent against creditors of the bailee, and as to them the absolute property was in the bailee who had the possession.

The appellee’s counsel said, the provision of the statute of frauds applied only to the case of loans of chattels ; and besides, the tenant for life had resumed possession of the ^'slaves in question in 1819, more than five years before this action was brought, and continued to hold them till her death in October 1823.

IV. The counsel for the appellant argued, that the effect of the sheriff’s sale was to vest in Leslie the purchaser, all the rights of Neil M’Coul in the property ; and that so soon as the property of these particular slaves was assigned to him in the division between him and his brother, Leslie’s right to the slaves in question became certain and complete ; so that, if this were a contest between Leslie and M’Coul himself, Leslie must prevail, and Briggs, the assignee of M’Coul, could not justly .claim any right that his assignor could not have asserted.

The appellee’s counsel answered, that, at the time of the sheriff’s sale, Neil M’Coul had no right to any particular slaves ; he was entitled to an undivided moiety of a parcel of slaves including those which were sold ; the sale was irregular; and no legal right to any particular slaves of the undivided property, could pass thereby, or even by a sale of M’Coul himself, if he had made one. Leslie’s executor could not avail himself of the division that had since been made, to which he was not a party.

*

See monographic *note*on “Execution” appended to Paine v. Tutwiler, 27 Gratt. 440. The principal case is cited in Lewis v. Adams, 6 Leigh 332.

TUCKER, P.

I do not think ic necessary in this case, to decide the question so much argued at the bar, as to the levy of an execution on a remainder in personal estate. Admitting the levy in this case to have been valid, and the sale to have passed to Leslie the interest of M’Coul, it did not pass that interest in severalty ; but, on the contrary, it constituted him a tenant in common with the other legatee in remainder, and gave him an undivided moiety in the whole of the slaves, instead of a title in severalty to the particular slaves demanded in the declaration. Unless therefore by some subsequent transaction it can be shewn, that partition was made between the parties, so that each had an absolute right in a distinct moiety at the time the action was brought, it seems sufficiently clear, that the present action cannot be maintained.

* Accordingly, it is attempted to be shewn, that the suit in chancery mentioned in the case agreed, has changed the social rights which were vested in Leslie by his purchase, into a distinct and several title to the identical slaves now demanded, which were set apart and allotted, it is said, as the portion of Neil M’Coul. I do not perceive how this can be sustained.

If the suit for a partition had been instituted by Neil M’Coul against his co-legatee, and a decree rendered for a division and for the delivery of the slaves in question to Neil, there might be some color for the pretension that it enured to the benefit of Leslie, who had become the purchaser of his interest, and that the allotment and delivery of possession under it to Neil M’Coul, was, in effect, a delivery of possession in severalty to the plaintiff’s testator. But that is not so. The suit was brought by Briggs, the defendant here, against the two devisees, seeking possession and claiming the property in question in right of Neil M’Coul. Leslie was no party to that suit, and therefore not entitled, as it seems to me, to invoke its aid, if it would avail him. But be this as it may, the decree, so far from being susceptible of sustaining the plaintiff’s demand or perfecting his title, and reducing his social rights to a right in severalty, is an express decree of the property to Briggs. It directs the property of Neil M’Coul, when allotted, to be delivered over to the plaintiff [the defendant in this suit] holding the right of the defendant Neil; and they were so delivered accordingly by the commissioners in pursuance of the decree. It is impossible to torture this decree, into a decree for partition between John M’Coul and Leslie claiming under Neil M’Coul. The decree, it is obvious, is not binding upon Leslie, as he is no party. Neither is it binding, as between Leslie and John M’Coul, upon the latter, since it must bind both or neither. John M’Coul, therefore, still has an undivided interest in the slaves in the declaration mentioned, if Leslie’s title to Neil’s interest is a valid one. This being the case, it is clear that Leslie could not maintain this action for the recovery, in severalty, of the slaves *in the declaration mentioned ; for if he has title, it is to an undivided moiety not only of these slaves but of those which were allotted by the commissioners to John M’Coul.

I am, therefore, of opinion, that the judgment is right and should be affirmed.

BROOKE, J., concurred.

CABELL, J.

The question made by the counsel for the appellant as to the statute of frauds, is one of great importance, and will require grave consideration, whenever it may become necessary to decide it. I do not, however, think that there is any such necessity in this case. Eor, even if it were admitted that the continued possession of Neil M’Coul, under the contract of hiring stated in the case agreed, gave him the absolute property in the negroes, so far as his creditors were concerned, and that that absolute property passed to Leslie by the sale of the *15sheriff, yet it cannot avail Leslie’s executor in this action, because the action was barred by the subsequent adversary possession, for more than live years, by those claiming under the will of Neil M’Coul the elder. Lor the rest, I have only to say, that I concur in the opinion of the president.

Judgment affirmed.