Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1858-08-17

Opinion oE the sEsrreme Coslzt cf the state
Of Tennessee delivered Al InCkSesss -
april Term, 1885,

81 Tonnessee, delivered a. jackson, Is
april Term, 1855
NIB. snsoss and others, rs. J. Ku,oArD and others.
This bill Eas6led By Carissa simons, by her next
friend and her seven children TO recover q negro
girl, Jane, ia the possession Of and claimed by de-
PENDANT, Kncaid under a bill Of sale signed BY the
said ClaTissa, her husband, George Simon dettn-
dsnt and her three oldest children, only one Of
whom, the said Milton B was Of lawful age at the
time The said Clarissa died pending the suit, aud
it is prosecuted by the other oompainants-her
seven children. The bill was dismissed by tie Chan
oellor, and the case is here by appeal
The father Of Clarissa, Ezekiel Thomas, died IN
Jsny., 1850, leaving considerable estate. In July
Of the same year, and before the division of the
property, her husband George c. SimOBs, by deed
in due form, made a settlement OF all the property
that might be derived from her fathers estate upon
the said Clarisss by the Intervention Of trustee,
for her separate USE for life with remainder to her
children-the oomplainants. James was one OF the
slaves allotted to her in the division.
BY various changes OF the trustees the trust uti.
mately deyoVed on the husband. In 1866 the said
George c. Simons was arrested aoharge Of incest,
and committed to jail. The defendent open the ap-
plicatiou Of Mrs Simous, aud her three Oldest chill
dren agreed to assist them in compronsiDgthe case
! With those engaged in the prosecution. The COM
pensaion Of Kineaid was to be one hundred dollars
For two hundred and fifty dollars, the attorney EN-
Moved to prosecute agreed 20 release the accused
This was paddy Kincaid, and bill Of sale executed
to him for the slave, by George c. his wife and the
three Oldest children. The consideration set forth
on the bill Of sale, is $500, but the defendant states
in his answer that be only claims to hold the slave
for $780, that being all his claim.
This being the state of facts, how is the law touch
ing the rights of the parieEi The settlement upon
the wife was coed and valid. There no eJedi-
tors of the husband at the date Of the deed, COM
planning; indeed, il is not shown that any existed
The wife could have resOrted to Court of Chaueery,
I a. f1c,, frf ho.car
extent The same might be done voluntarily by the
husband by this the expense and delay of bill,
could be avoided aud this is stated in the deed, ss
the reason for adopting that mode But independent
of the doctrine Of the Wifes equity, husband may
make reasonable settlement upon his wife Of his
own property well as hers, saving the rights OF
existing creditors in certain cases.
Then at the time of he sale 10 defendant the slave
was vested in Mrz Smons for her sole and separate
USE and her husband was her Trustee, by and with
. a vested remainder in her seven children. Sac
could not make valid sale of her interest, but by
examination in court Of equity. Unless that Il
done, her deed does not bind her. He husband
could pass no title because he had none except as
express trustee, without power TO SELL exceptin the
specia case provided for in the deed, for change oil
investment with her sanction. The argument made
on this int to the effect that the power to sell
exists it would be binding the purchaser is not
bound to look after the application of the funds
but in this case, the sale was made expressly fol
the discharge Of debt then contracted but not fol
reinyeslment 1t appears that the defendant haC
full knowledge or notice of the deed of settlement
and ofthe title, actual well as constructive,
the deed having been long before registered.
But even if the husband and wife could have dis,
posed of the life estate Of the wife, that is now end
ed by her death, the remainder of these eomplsi
nants must take effect in possession.
But the defendant insists that if he can do nc
more, he can hold the three-sevenihs TO which tht
three complainants who signed the deed we're emit
tied. This would be so if they were of age at the
time. and if it were not for the fact of hi
completely in the violation of the law com
prohibiting the compromising Of prosecutions for fel
onies. The whole transaction is thus tainted will
illegally, and court of equity can extend no relic
70 any party connected with it. The courts will
eOntaminate their own purity by extending theiI
aidsto either party in such transactions, but repe
them whenever they present themselves They mus
be left to the advantage or disadvantage in which
they have placed themselves. The principle viii
not allow to recognize and establish the right
the defendant to the one seventh of Milton B. Sim
ons, TO which he would otherwise be entitled undel
the bill of sale Neither the said Milton recov
er, because of his deed to defendant. He was com
peten to sell his remainder interest being of lawful
age and will not now be allowed TO clamitin the fact
of his bill of sale. But his younger brother anC
sister, who signed it with him, are not bound or d
vested Of their rights on account of their infancy
at the time. The result is, that the compliments,
excluding Milton b. must recover the slave Jane viii
her reasonable hire from the death of their mother
and she will be delivered up TO them.
To this effect, decree will be drawn up. The
case of the same parties with Calvin Shull hearC
with his, for a slave named Isaac, included in th'
same deed of settlement, differs only in this tina
there is no bill Of sale from the compliments, Of
any Of them but he ives sold under executions is
sned against the said George C. Simons, after hiI
arrest and confinement, and bought by Shull Thi:
proceeding according to the principles stated, pass
ed no right 10 the purchaser, this trust property
was not liable for the debts of George C. The righ
then remained in the oompainants uafeeted by said
sale. For this Save decree will be made that he
be delivered up to all the complainans with the hire
from the termination of the life estate by the death
of Mrs. SimOns CARUTHERs.
Test NJ. D. WEIGH, Clerk and Master