#### John A. Donald et al. *v.*John M’Cord et al.

The testator, Alexander Donald, by Ms will, dated in 1803, bequeathed as follows : “'I *lend*to my daughter Nancy Gray, and Robert Gray her husband, for their lives, one negro man called Peter, and one negro called Little Prank, and one negro woman called Sary, with *all her increase,*and one feather bed and furniture, for their lives, and then to be equally divided amongst their children.” Held, that the children of Robert and Nancy Gray, took, under the will, a vested interest, transmissible to their legal representatives.

The children of Robert and Nancy Gray were, Mary Ann, who married West Donald; Elizabeth, who married James Donald, and Robert Douglass Gray. *Mary Ann Donald*died, leaving the complainants, her children, of whom, John A. Donald, the eldest, *administered*on her estate, in whose behalf this bill was brought for *partition*of the property bequeathed under the above will, against Robert D. Gray, (the grandson,) and James Donald, who had married the other grand-daughter of the testator ; and *M’Cord,*and the other defendants, who held and claimed the slaves under certain purchases, alleged to be *bona fule*and without *notice*of the rights of complainants, and who also relied on the statute of limitations. Held, that on the death of Mary Ann Donald, the statute of limitations would not commence to run until administration had on her estate, and that the *legal*title to *one-third*of the negroes which passed under the will of Alexander Donald, vested in the administrator of Mary Ann Donald.

On a bill seeking for a partition of slaves bequeathed by will, where no *discovery*was sought which could jeopardize the title of the defendants, Held, that a plea of purchase for valuable consideration, would not avail against the complainants having the legal title.

Under a bequest of a particular female slave, by name, with *all her increase,*the children of the slave, born before the making of the will, do not pass. (S. P. Seibles v. Whatley, 3 Hill. Ch. Rep. 603.) Johnston, Chancellor, dissenting.

*Before HARPER, Chancellor, at Abbeville, June Term,*1838.

This case came up on an appeal from the decree of his honor Chancellor Harper, dismissing the complainants bill. The decree embodies a full statement of the facts in the case, and was as follows :

“ Alexander Donald, by his will, dated in 1803, bequeathed as *331follows : “ I *lend*to my daughter Nancy Gray, and Robert Gray her husband, for their lives, one negro man called Peter, and one negro called Little Fránk, and one negro woman called Sary, with all her increase, and one feather bed and furniture, for their lives, and then to be equally divided amongst their children.” The testator died, I suppose, in 1806, as his will was proved on the 2d or May, in that year.

It appears-that the negro woman Sarah, named in the bequest, had been in the possession of the testator’s son-in-law, Robert Gray, for many years before the execution of the will; but the negroes Peter and Little Frank, remained in the testator’s possession until his death, when they went into the possession of Robert Gray — it is to be presumed by the delivery of the executor of the will.

The testimony is not very explicit to show what children of Sarah were born before the making of the will, or the testator’s death. The children she is shown to have had, are Annis, Essex, Ede, Stephen and Nancy. From the testimony of the witnesses Lyon and Cochran, I think the four first were born before the making of the will, the last after it. Robert Gray died early in 1811, and his widow, Nancy Gray, administered on his estate, and included in the inventory of the estate, the negroes Frank, Annis and child, Sail, (Sarah,) and two children. The children of Robert and Nancy Gray, were Mary Ann, -who married West Donald; Elizabeth, who married James Donald; and Robert Douglass Gray. Mary Ann Donald died in the lifetime of her mother, leaving the complainants, her children, of whom the eldest, John A. Donald, has lately administered on her estate. Sometime after the death of her husband, administratrix Nancy Gray, sold the'negroes Sarah, Essex and Stephen, to Archibald Douglass, who in 1815 sold them to James Robertson. Sarah and Stephen remained in his possession till his, Robertson’s, death, in February, 1831, after which they were exposed to sale under executions against his estate, and sold, Sarah to the defendant Jane Robertson, and Stephen to the defendant John M’Cord. After the death of Nancy Gray, (then Paul, she having married again in 1825,) James Donald, whose wife was living, Robert D. Gray and *332West Donald, made a partition of negroes, and it appears that Frank, Annis, and some of the children of Annis, were assigned to West Donald and went into his possession. They remained in his possession until 1829, when they were levied on and sold; the negroes Annis, and her three children Allen, William and Robert, to Robert Cochran, who sold them to the defendant Thomas J. Douglass ; Frank to the said Thomas J. Douglass, and Sarah Ann to the defendant Charles Dendy. Annis is admitted to have had two other children since the sale. It is shown that Peter, given by the will, was on the partition assigned to Robert D. Gray, and is alleged by the bill to be still in his possession. The bill alleges without proof, that Essex and Nancy, children of Sarah, have been removed out of the State, the latter by James Donald, the former by some person unknown.

It alleges in like manner, that Jack, Julia, Jane and Levi, children of Annis, are in the possession of Robert D. Gray. James Donald and Robert D. Gray, are named as defendants to the bill, but they have not answered, nor does it appear to me that they have been served with process, or that the bill has been taken *pro confesso*against them. The defendants, Thomas J. Douglass, Charles Dendy, Jane Robertson and John M’Cord, have answered, and among other grounds of defence, plead that they are *bona fide*purchasers for valuable consideration, without notice, and rely on the statute of limitations.

The bill claims partition of the slaves bequeathed by the will of Alexander Donald, and their descendants, in the hands of any of the defendants, on the ground that complainants, (or the legal representatives of Mary Ann Donald,) are still tenants in common with the two other children of Mary Ann Donald, or those who represent them, or are invested with their rights. The slave Sarah having been in the possession of Robert Gray, long before the making of the willthe presumption of law upon that would be, that she was his absolute property. I am satisfied, however, that as other slaves were given him by will, it must be held a case of election, and that his election was determined by his acceptance of those slaves. It differs in no respect from the ordinary case of election, except that instead of the entire property of the *333person benefitted by the will, it only gives what shall remain after the termination of his life.

It was argued, that supposing this to be so, the limitation of the will cannot apply to the children of the woman Sarah, born-before the making of the will. According to the decision in the case of Seibles v. Whatley, 2 Hill. Ch. Rep. 603, where female slaves, with their issue or increase, are devised, this is taken to refer to future issue only. I have since had occasion to consider that subject more fully, in a case, I think, of Mellard v. Mellard, decided by me at Charleston, at the sitting in January last. The use of the words *issue*or *increase,*as applied to slaves, is evidently borrowed from that of the *issue*applied to the persons who are to take under a will or conveyance. It is used either as a word of *limitation,*to express the quantity of the estate conveyed, or as a word of *purchase,*to describe the individuals who are to take.— The former is its general and obvious meaning in a will; but it will admit of being differently interpreted, if a different intention appears. So we know, that as applied to slaves, though they are unnecessary for the purpose, the *“ words issue or*increase,” are sometimes used to express the quantity of the estate; that it is absolute. The expression often is, “ with their future issue and increase.” Then admitting the case of Seibles v. Whatley to furnish the general rule, I held in the case of Mellard v. Mellar’d, following out the analogy, that if such an intention appears, they must be taken as descriptive of the individual slaves intended to be conveyed. In that case a great number of slaves, male and female, were bequeathed in the same clause. Certain specified female slaves were given with their issue. As the testator certainly intended to give the same estate in all the slaves bequeathed, and yet used the words only in connexion with some females and not with others, it must have been meant, not to fix the nature of the estate, but to describe the individuals intended to pass. In this case, the testator, in another clause of his will, gives a female slave to the same legatees, without adding the word *“increase”*This is not so strong as if it were in the same clause; but I think is strengthened by the testator’s giving the slave with all her increase. Does not this obviously import increase both present and *334future? — And could the words be satisfied by restricting them to mean *only future*increase ?

It would not, however, be necessary to give a definitive opinion on this point, as I am with the defendants on another ground. I have no doubt that the legacy was vested in Mary Ann Donald, so as to be transmissible to her legal representatives.

I think, however, that the defendants must prevail on the plea of purchase, for valuable consideration, without notice. It was argued on the part of the complainants, that this plea cannot prevail when the claim is upon a legal title. Such is the doctrine laid down in the casé of Williams v. Lambe, 3 Br. C. C., 264 ; in Collins v. Archer, 4 Cond. Eng. Ch. R. 428, and it is so said in Rogers v. Seale, 2 Freem., 84. The very clear preponderance of authority, however, is the other way. The reporter in a note to Collins v. Archer, refers to. the cases upon the examination of which Lord Redesdale, in his treatise on pleading, and Mr. Sug-den, in his law of vendors, came to the clear conclusion that on principle, the plea is a protection against a legal as well as an equitable title. I have examined the cases referred to, and find them to support the conclusion. The case of Parker v. Blythe-more, 2 Eq. Ca. Ab., 79, was expressly one of a legal title. So. was the case of Ábery v. Williams, 1 Vernon, 27, where the defendant had purchased goods of a bankrupt without notice of the bankruptcy; the legal title was in the assignees. Such are said to have been the cases of Perratt v. Ballard, 2 Chan. Ca., 72, and Hayman v. Gomeldon, Finch. R., 34. In Aston v. Aston, 3 Atk., 302, Lord Iiardwicke says, a purchaser may plead his purchase in bar of a discovery of title deeds, because, if produced, they might overturn his title *at law.*In Jerrard v. .Saunders, 2 Ves. jr., p. 457, Lord Rosslyn says, in reference to the case of Rogers v. Seale: — “ It is impossible that could have been the determination of Lord Nottingham; that if the plaintiff has a legal title, the defendant cannot protect himself as a purchaser for valuable consideration; but he may, if the plaintiff has an equitable title.” He adds, “ I think it has been decided, that against a purchaser for valuable consideration, without notice, this court will not take the least step imaginable.

*335
      *“*I believe that it has been decided, that you cannot even have a bill to perpetuate the testimony against him. I am pretty sure it is determined that no advantage the law gives him shall be taken from him by this court. The doctrine, as to the jurisdiction of this court, is this: you cannot attach upon the conscience of the party any demand whatever, when he stands as a purchaser having paid his money, and denies all notice of the circumstances set up by the bill.” To these cases may be added, that of Walwyn v. Lee, 9 Yes., 24. The plaintiff claimed as tenant in tail under an act of parliament, which certainly gave the legal title. He suffered a recovery, and sought the discovery of title deeds, against a mortgagee of his father, who had been tenant for life. The objection was not even taken, that he had the legal title, but the contest turned on another point, and the plea of purchase, without notice, was sustained. I think it might not be impossible to reconcile the cases upon a distinction of this sort — to which I think some of the cases point. Where it is strictly a matter of concurrent jurisdiction, and there is no obstacle to the party’s pursuing his remedy in either court, but he comes into equity as affording the most convenient remedy, the court will not do so nugatory a thing as to turn him out, when he may forthwith enforce his remedy in another jurisdiction. But if the defendant have any. advantage by which he can defend himself at law, and the other party is unable to proceed at law without the aid of this court, as where a discovery is needed, there the reason of the equity rule applies in full force — that the party who has fairly paid his money, without notice, has an equity equal to any equity that may be sought to be enforced against him. The court will not therefore interfere against him, or compel him to give up his advantage.

In all the cases.to which I have referred, in which the plea was supported, the parties were unable to proceed at law, without the aid of the court. In Williams v. Lambe, it was urged in argument, that the defendant admitted the deeds to be in his possession, without which the complainants could not proceed at law. But this does not follow. If she knew of the deeds, and could prove their existence and contents, (and the contrary is not alleged,) by giving notice to produce them, she might proceed and re*336cover at law. The case is one for dower, which is commonly regarded as matter of *concurrent jurisdiction. At*all *events,*there was no objection to the jurisdiction.

In Collins v. Archer the bill was for an account, which is matter of concurrent jurisdiction with the courts of law, and no obstacle is stated to the complainants’ proceeding at law. Is this, a case of such concurrent jurisdiction, and could the complainants proceed at law ? We have decided that the statute of limitations may run against a joint tenant of a chattel, while the right of a co-tenant, who was under a disability, may be saved. Supposing, then, the statute not to have begun to run against the present complainants until the grant of administration to John A. Donald, it cannot, be doubted but that the possession of the defendants has been adverse as to Robert D. Gray and James Donald, and that they have been long since clothed with all their rights. Then it follows, that the defendants are tenants in common with the complainants. Can one tenant in common of a chattel maintain any action at law for his proportion against his co-tenant *1*lam aware, that in the case of Henry v. Means, 2 Hill., 328, it was held, that one tenant in common of a chattel might maintain tro-ver against the person in possession, in whose favor the statute had run as against the other tenants. But though I concurred in that decision, I feel compelled to say, that with respect to this point, the case seems not to have been well considered. Indeed, *the question of the limitation*was *that'which was principally mooted*in the case. Can there be any doubt, but that if a person acquires by the statute the right of two joint tenants of a chattel, he becomes a tenant in common with the third, as much as if they had conveyed their interest to him ? Does it result from the decision, that in every case of joint tenancy, or tenancy in common, one tenant may maintain an action against his co-tenants for his share *1*Can the co-tenant be guilty of a conversion by refusing to deliver the property, or to make partition on demand ? I fear this would make innovation on a wise province of the law. According to the case of Perry v. Jackson, 4 T. R. 516, when the statute had run against one of the two payees of a promissory note, (the other having been under a disability,) it was held that *337no action could be maintained. There, it being a matter altogether of legal cognizance, the remedy was probably gone. But in a case like that of Henry v. Means, there was an obvious remedy, for the tenant who was under disability, in equity. It is the business of equity to make partition between tenants in common.— Could the action of detinue for the specific delivery of the chattel be maintained in such case ? And this seems to be more anala-gous to the proceeding in equity, when the specific thing is sought. However this may be, on the general preponderance of authority, that the plea of *bona fide*purchase, without notice, will prevail against a legal title, I shall sustain the plea, and without taking upon myself to overrule the case of Henry v. Means, leave the parties to seek their remedy at law, if they are advised that they are likely to find one. It is ordered and decreed, that the plea be sustained, and the bill dismissed.”

The complainants appealed, and now moved to reverse the decree of the chancellor, on the following grounds :

1. Because the plea of purchase for a valuable consideration, without notice, cannot avail against a legal title.

2. Because the bill does not seek the extraordinary aid of equity, but simply the exercise of concurrent jurisdiction with the courts of law to which it is competent, to enforce the rights of the complainants ; the bill stating a simple case of partition.

Curia, per Dupjkin, Chancellor.

This court agree with the presiding chancellor that, under the will of Alexander Donald, his grand children took a vested interest transmissible to their legal representatives. They also think that, on the death of Mary Ann Donald, (one of the .grand children,) the statute of limitations would not commence to run until administration had on her estate.

The bill is filed for partition against Robert D. Gray, the grandson, and James Donald, who married the other grand-daughter of the testator, and the other defendants, who hold and claim the ne-groes under the several purchases particularly set forth in the decree of the chancellor. In the judgment of the circuit court, and in which this court concur, the legal title to one-third of the ne-groes, which passed under the will of the testator,, vested in the *338administrator of Mary Ann Donald. Before inquiring whether the plea of a purchaser for valuable consideration, without notice, will avail against' a legal title, it is proper to remark, that the bill in this case, sought for no discovery of deeds, or other matter which might expose or impeach the title of the defendants. Prior to .the act of 1791, no partition of personalty could be made but in the court of chancery. The provisions of that act, ánd the practice under it, have been confined to cases of intestacy. The complainant comes into this court simply on the ground that the law has provided no mode of enforcing his legal right in the ordinary tribunals of justice. He seeks no discovery from the defendants, and no aid from the court in making out the validity of his title.

It is admitted, that there exists some apparent conflict in the English decisions on this subject. It is supposed by the chancellor, that they may be reconciled on this ground, that, where there is a concurrent jurisdiction, .and the complainant having the legal title, applies to this court, the plea shall not avail, if he could recover at law without the aid of this court, because, he should not be driven to a circuity of. action ; but that if he could not recover at law, although he have' the legal title, this court would not assist him against a purchaser for valuable consideration, without notice. Adopting this distinction, the bill was-dismissed, because, in the opinion of the circuit court, a tenant in common of a chattel cannot maintain trover against a purchaser from his' co-tenant, and thereby calling in question the authority of Henry v. Means in this particular. If the complainant had been the exclusive owner of the negroes, and had filed a bill for a delivery and account of the hire, it is quite clear, on the case of Heyward v. Glover, Riley, 53, that the bill might have been maintained* and in the opinion of the chancellor, as he might also have recovered at law, the plea of purchase for valuable consideration would not have availed the defendants ; but, inasmuch as he is part owner, and is supposed to have no remedy at law, he is also barred by the plea from any relief in chancery. The court are not quite satisfied with the principle of this distinction, or that it is the foundation of the diversity in the decisions which are found in the books. All the authorities which have been cited are on bills filed for the discovery of title *339deeds, and, in many of the earlier, as well as the latest English cases, to such bills the plea of the purchaser has not been allowed to prevail against the legal title. Such was the case of Rogers v. Seale, decided in 1681, Freem., 84, in which the plea was overruled on this difference, that “ where the plaintiff hath á title in law, there, though the defendant doth purchase without notice, yet he shall discover writings; but otherwise it is if the plaintiff hath only a title in equity; for there, if the defendant purchased without notice, he shall never discover, nor make good, the plaintiff’s title; ” and so of Strode v. Blackburn, 3 Ves. jr., 222; Williams v. Lambe, 3 Bro. C. C., 264, and Collins v. Archer, 4. Eng. Cond. C. C., 428, decided by Sir Jno. Leach, as late as February, 1830. It is true, that the authority of these cases has been called in question; but it is proper to inquire upon what ground. In Aston v. Aston, 3 Atk. 302, Lord Hardwicke places his decision expressly on the ground that the purchaser shall not be compelled to make any discovery of title deeds, because, if produced, they might overturn his title at law. In Hoare v. Parker, 1 Bro. C. C., 578, Lord Thurlow says, “ a purchaser for valuable consideration, without notice, is not bound in conscience to assist the right owner in the legal recovery of the subject purchased under-such circumstances.” Lord Rosslyn in Jerrard v. Saunders, 2 Ves., jr., 458, refuses to compel a purchaser, who has fully, and in the most precise terms denied all the circumstances from which notice may be inferred, to make any discovery which' was to blot and rip up his title.” He adds, “ I believe it has been decided, that against a purchaser for valuable consideration, without notice, you cannot even have a bill to perpetuate testimony.” On this last suggestion, it is proposed, hereafter to offer the observation of later authorities.— Walwyn v. Lee, 9 Ves., 32, is the most recent case which has been adduced in favor of the plea. The object of the bill was for the discovery of title deeds, and for nothing else. The legal owner was in possession of the estate ; and he filed a bill against the mortgagee of the tenant for life, for a discovery and delivery of the title deeds, &c., which he had procured. Lord Eldon hesitated whether he should take any step. “ I apprehend,” says he, “ there is sufficient ground for saying, a man, who has honestly *340dealt for valuable consideration, without notice, shall not be called upon by confessions' wrung from his conscience to say, he has missed his object to the extent in which he meant to acquire it.” The plea having stood a considerable time for judgment, was allowed. All the cases, in which the plea has been sustained, proceed on the principle that a defendant, in such situation, ought not to be compelled to make a discovery which may be injurious to himself. “ There would be no conscience, no equity, no good discretion even,” says Lord Eldon in Strode v. Blackburne, “ to enable the court to call upon the defendant, having paid money for the land without notice, (a title perfectly founded in conscience, if it has any foundation,) to set forth his title.” He adds, however, that, “ though the court would not call upon him to set out by what means he derives his title, yet there are cases where the court would have no hesitation to make him describe the thing of which he is in possession.” And he adverts to the common case of goods, for which trover or detinue lies, and the plaintiff avers that he is in such circumstances that he cannot describe them, and requires an account to be given to enable him to do so. In the very well considered case of Snelgrove v. Snelgrove, 4 Eq. R., 289, Chancellor Desaussure, after a review of all the English authorities, inclines to the opinion, that the preponderance of authorities is against the plea. He says, “ it should be remembered that the plea protects, by the court refusing to aid the complainant in setting up a title. Now, when the title attempted to be set up is an equitable one, it seems very reasonable that the court should forbear to give its assistance in setting up such equitable title against another title set up by a fair purchaser. But when the complainant comes with a legal title, I do not perceive how he can be refused the aid of the court. It seems no longer to be optional.” It is true, that this was a circuit decision from which no appeal was taken, as the case was afterwards compromised. Without undertaking to reconcile the authorities, or to determine between them, this court is prepared to say that, where no discovery is sought, which may jeopardize the title of the defendant, the plea of purchase for valuable consideration will not avail against a plaintiff having the legal title. It is doubtful if any authority can be found which ex*341tends the protection farther. When Lord Rosslyn intimates his impression that it has been decided that a bill to perpetuate testimony will not lie against such purchaser, he probably had in his mind the case of Freaborne v. Clifton, reported in Vernon, and also in Eq. Ca. Abr. But Lord Eldon, in the case of Lord Dursley v. Fitzharding, 6 Ves., 262, says, he “ had been furnished with an extract from that case in the Register’s book, from which it appeared that the case amounted to no decision at all.” After stating the case, his Lordship adds, “ that is by no means an authority, that, if two persons are claiming a reversion, where one only can be entitled to it, a bill to perpetuate testimony will not lie. *Nor did it establish a principle which I think very difficult to maintain, that, if one of them had sold his title to a third person, a hill to perpetuate testimony could not be maintained, for such a hill calls for no discovery from the defendant;*but merely prays to secure that testimony which might be had at that time, if the circumstances called for it.” See also, the opinion of Mr. Justice Story, in a note to Story,Eq. PL, 622.

The court are of opinion that the plea should have been overruled.

A majority, of the court also think, that the children of Sarah, born before making the will, did not pass, and that the case cannot be distinguished in principle, from Seibles & Whatley, 2 Hill, C. R., 603.

Some of the defendants hold under purchases from West Donald, who survived his wife, Mary Ann Donald. It is sufficiently manifest that there could be no creditors, and the husband would therefore be entitled to one-third of her interest, which must enure to the benefit of his vendees.

From the decree of the chancellor, it seems not to have been very clearly proved, which of the children of Sarah were born prior to the making of the will, or the death of the testator. He also states, that neither James Donald nor Robert D. Gray were properly before the court, and, although there was some suggestion at the bar that this may have been a misapprehension, the court are yet uninformed on the subject. On these points further inquiry must be had.

*342
      *Burt,*for the motion.

*Wardlaw,*contra.

It is ordered and decreed, that the decree of the circuit court be reversed — that the negro Sarah be sold by *the commissioner*of Abbeville district, and one-third of the proceeds be paid to-the complainant, Jno. A. Donald, adm’r of Mary Ann Donald: — that the slave Frank be also sold by the commissioner, and two-ninths of the proceeds be paid to the complainants, and that the defendants, Jane Robertson, and Thos. J. Douglas, account respectively for the hire of Sarah and Frank since the filing of this bill — that on all other matters, the case be sent back to the circuit court for examination of the facts, and for final adjudication on the principles of this decree.

David Johnson, Chancellor, concurred.

J. Johnston, Chancellor.

I concur in the result of this cause, except that, in my opinion, the *ante nati*issue of Sarah passed under the testator’s will. In Seibles v. Whatley, referred to in the circuit decree, it was decided that where the bequest is of “ increase,” without more, it refers to future increase only. But how are we to suppose that the testator intended to bequeath *part*of the increase only, in the face of his express declaration that his intention was to bequeath *all*the increase ?