| Notes |
- Hasty was a negro slave of Samuel DeLoach and Jerusha DeLoach. She was bequeathed to their daughter Lucretia "Tracy" DeLoach Spicer and later sold to the Smith family.
JAMES INGRAM et al. v. HENRY F. SMITH et al.
Nashville, December, 1858.
1. WILL– CONSTRUCTION-PER STIRPES AND PER CAPITA. The testator's will contained
the following clause: "I give and bequeath to my daughter, Tracy Spicer, during her
natural life, two negroes, Daniel and Hasty, which negroes, after her death, and the
death of her husband, I give, to be equally divided between the heirs of my son Jesse,
and daughter Polly Ingram." By the proper construction of this clause, the remainder
created goes equally to the heirs of the son and daughter named, who take per capita,
and not per stirpes.
2. SAME-SAME – PERSONS ANSWERING THE DESCRIPTION AT THE TIME THE RIGHT
ACCRUES WILL TAKE.. In order to give effect to the bequest to the heirs of the son and
daughter, it is not necessary that they should have had children at the time of the exe
cution of the will. It is sufficient, and the bequest is valid, if there are persons to answer
to the description when it is to take effect.
3. STATUTE OF LIMITATIONS-POSSESSION AS BETWEEN BAILOR AND BAILEE – RuLE IN
NORTH CAROLINA. The transactions involved in this suit were in North Carolina, and
the rights of the parties are governed by the laws of that State. It is settled there, that
if a parent puts property in the possession of a child who has left, or is about to leave,
the parent, such property is presumed to be given and not loaned to the child; and pur
chasers and creditors can subject it to their claims, whatever may have been the private
understanding of the parties. But this is a presumption of fact and not of law. There
fore, between the parties and all others who cannot impute either legal or actual fraud
to the transaction, the true character of the act may be shown. And if the loan is estab
lished as a matter of fact, the statute of limitations will also operate upon the husband's
possession, although he had sold some of the negroes as his own, and notwithstanding
his declarations that he held for himself. He cannot, by his own act, throw off his char
acter of bailee.
4. Ev1DENCE – CHANCERY PRACTICE – ExCEPTIONS TO EVIDENCE AND ExHIBITs. Objec
tions made to the reading of evidence and exhibits in the court below must be clear and
specific, that the opposite party may have the opportunity of curing the defect, if it be
one, and not be taken by surprise when that opportunity can no longer be had.
5. SAME-SAME-SAME-CASE IN JUDGMENT. The bill of exceptions shows that the copy
of the will was objected to on the trial "because not authenticated according to law,"
and "because the said paper had not been filed in court according to law." The precise
character of the objections is not stated, but in argument it was urged that the certificate
of the clerk is insufficient for want of a seal, and the exhibit was filed during the term at
which the cause was tried, and without the one day's notice required by the nineteenth
rule of Chancery Practice. Held, that the objections are not sufficiently specific— that it
does not appear that either of them were made, or could have been made, in the court
below, and they cannot avail the party in this court.
6. SAME-SAME– ADMission IN THE ANSWER. If an exhibit is objected to as evidence,
and the objection erroneously overruled in the court below, yet, if the material part of
said exhibit is copied into the answer, and admitted to be true, the objection cannot
avail the party, as he is bound by his answer.
T. SAME-WITNESS – COMPETENCY – RELEASE. The husband and wife, who have con
veyed slaves, are incompetent witnesses in a contest between the purchasers from them,
or their assignees, and remaindermen, unless a release is given them. Such release, to
232INGRAM v. SMITH. 412– 414
be effectual, must be executed by all the parties in interest, or by all who may have a
claim upon them upon their covenants. [Cited in Green v. Starves, 1 Heisk. 586; see,
now, Code § 3813, c.]
8. CHANCERY PRACTICE-DECREE FOR DEFENDANTS. It is the settled law of the Court of
Chancery that a decree may be made between co-defendants, grounded upon the plead
ings and proof between complainant and defendants, and founded upon and connected
with the subject-matter in litigation between the complainant and one or more of the
defendants. Such decrees are made to prevent a multiplicity of suits. [Cited in the
dissenting opinion of Andrews, J., in La Grange and Memphis R. Co. v. Rainey, 7 Coldw.
457. And see 1 Sneed, 87.]
FROM WILSON.
[412] This cause was heard before Chancellor Ridley, at the Janu
ary term, 1858. The defendants appealed. The facts are fully stated
in the opinion of the court. .
[413] Stokes, Marshall, Golladay, and Tarver, for the complainants;
J. S. Brien, Ewing, Martin and Guild, for the defendants.
W. F. Cooper, special J., delivered the opinion of the court.
The original bill in this case was filed on the 5th day of February,
1848, by Samuel Ingram and others, the children of Polly Ingram,
against Alfred McClain, Joseph Smith, J. M. Smith, and Henry F.
Smith, to attach certain slaves in the possession of the defendants,
and to have the complainants' rights therein declared and protected.
The bill states that the complainants claim under the will of Samuel De
loach, of Johnston county, in the State of North Carolina, bearing date
the 29th day of October, 1805, and duly proved and admitted to record
in the Probate Court of said county after his death. That complainants
have a duly certified copy of said will in Arkansas, where they reside,
and will file the same as soon as it can be done in this cause. That the
testator, by his said will, bequeaths two negroes, Daniel and Hasty, to
his daughter Lucretia, or Tracy Spicer, for life, and after her death and
that of her husband, Wm. Spicer, to be equally divided between the
heirs of the testator's daughter, Polly Ingram, and of his son, Jesse
Deloach. The bill further alleges, that Wm. Spicer and his wife, Tracy,
are still living. That some years before Wm. Spicer had sold the negro
woman Hasty to George Smith, who purchased with a [414] knowledge
of complainants' rights; that George Smith had since died; that the de
fendant, Henry F. Smith, had Hasty and several of her descendants in
his possession; that defendant, Joseph Smith, had Emeline, a daughter
of Hasty, and several children of Judy, in his possession. The bill prays
that the negroes be attached, that defendants be enjoined from re
moving or disposing of them, that complainants' rights in remainder
be declared, etc.
The defendants, McClain and Henry F. Smith, file separate answers,
in which each admits that he has seen a paper purporting to be a copy
of the records of the County Court of Johnston county, North Carolina,
233414– 416 HEAD's REPORTS.
of the last will and testament of Samuel Deloach, deceased, bearing
date the 29th of October, 1805, and containing a clause, quoted in the
answers, which is identical with the clause of the bill under which com
plainants claim, as hereinafter given, except that the name of Hester is
applied to one of the negroes instead of Hasty. Both answers further
admit that the said copy purports to be duly certified by the clerk of the
County Court of Johnston county, North Carolina, and that the defend
ants "suppose the will was duly proven and admitted to record." The
answers further admit that George Smith purchased from Wm. Spicer,
about the year 1820, the woman Hasty, and perhaps two children. That
George Smith died about 1833, and Hasty and her increase were divided
among his distributees. Alfred McClain admits that he is in possession
of Judy, a daughter of Hasty, and her children, having purchased
[415] them from his co-defendant, James M. Smith, to whom they had
been allotted in the distribution of George Smith's estate. Henry F.
Smith admits that he is in possession of Hasty and nine of her children.
Hasty and three of her children he bought from Ross Webb, the hus
band of his sister Martha Smith, to whom they had been allotted in the
division of George Smith's estate. One of Hasty's children he bought
from Samuel Smith, his brother, to whom he was allotted. The other
children were born after he bought Hasty. Both of these defendants
insist that Wm. Spicer acquired a title to the negroes Daniel and Hasty,
by gift from Samuel Deloach, of Jenny, the mother of said Daniel and
Hasty, or, by virtue of the statute of limitations, operating on the pos
session of said Jenny before the will of 1805 was made, and that, con
sequently, no right to such slaves passed under the will. Both defend
ants also deny that George Smith purchased with knowledge of com
plainants' claim – Henry F. Smith stating that he was present when his
father made the trade. Both defendants also insist that all necessary
parties are not before the court. That the heirs of Jesse Deloach should
be made parties. And for the omission to do so, they claim the same
benefit as if the objection had been made by demurrer.
The defendant, James M. Smith, files an answer denying that he has
then, or ever has had the slave Lewis in his possession; and no further
proceedings are had against him. No proceedings seem to have been
taken at all against Joseph Smith. But on the 27th day of April, 1849,
the complainants file an amended bill against Wm. H. Evans, charging
that he has Emeline, [416] a daughter of Hasty, in his possession.
Evans answers, and admits that he claims the negro Emeline, in right of
his wife, who acquired her as one of the children of James Williamson,
deceased, who acquired his claim in right of his wife, as one of the
children and distributees of George Smith, deceased, and in the divis
ion of the negroes belonging to that estate. The answer further admits,
that "since the filing of the bill, respondent has understood that said
234INGRAM v. SMITH. 416– 418
Emeline is a daughter of a women named Hasty, who belonged, or was
claimed to belong, to the estate of the late George Smith, deceased."
He denies all personal knowledge of other matters alleged in the bill,
but refers to and adopts the answers of McClain and Henry F. Smith.
On the 1st of March, 1852, upon an order of the court to that effect,
the complainants file an amended and supplemental bill " against the
children and heirs of Jesse Deloach, to wit, Samuel Deloach, John De
loach, Wm. Deloach, and C. Deloach, of Adams county, Mississippi."
The bill adds: "There may be other children of said Jesse, whose
names and particular residences are unknown to complainants; but the
above named are all complainants can get any certain knowledge of."
The bill prays the court "to cause the children and heirs of the said
Jesse Deloach to be made defendants; that publication be made, as pro
vided by the rules of this court in case of non-resident defendants, and
that the relief sought in the original bill be granted." At the April
Rules, 1853, a pro confesso order was taken in the master's office, "as to
the defendants, heirs of Jesse Deloach," reciting that publication had
been regularly made as to them.
[417] On the 18th of June, 1856, the complainants file another
amended and supplemental bill against Henry Smith, George K. Rob
ertson, administrator of Alfred McClain, deceased, and Wm. H. Evans,
in which they allege the filing of the original bill, and of the amended
bill, "for the purpose of bringing before the court the children and heirs
of Jesse Deloach, who are interested in the remainder in said slaves," and
add: "This amended bill not having been answered, has been regularly
taken for confessed." The bill proceeds to state that Wm. Spicer and
wife have recently departed this life, and that complainants are now en
titled to the negroes in dispute, and prays that the parties above named
be made defendants, and required to answer. Each of these defendants
does answer, admitting the filing of the original and amended bills as
stated, and for the purposes alleged, admitting the death of Spicer and
wife, and referring to and relying on the former answers.
Proof was taken on both sides, and the cause was finally heard by
Chancellor Ridley, at the January term, 1858, of the Chancery Court at
Lebanon, who gave a decree in favor of complainants, and ordered the
defendants, Smith, Robertson administrator, and Evans, to deliver the
negroes in their respective possession to the clerk and master of the
court, and directed an account to be taken of the hire since the death of
Spicer and wife; from which decree the defendants Smith, Robertson
administrator, and Evans prayed and obtained an appeal to this
Court.
The complainants claim under the will of Samuel Deloach. The will,
as has been stated, was not before [418] the draftsmen of the bill when
drawn, but the complainants undertake to file a certified copy as soon as
235418, 419 HEAD'S REPORTS.
it can be done. The transcript of the record before us contains a copy
of said will immediately following the original bill, and marked as ex
hibit A, thereto. This copy is duly eertified by the clerk of the Court of
Pleas and Quarter Sessions of Johnston county, North Carolina, pur
porting to be "under his hand and seal of office," although no scroll or
seal appears in the transcript. The authentication of the clerk is ac
companied by the certificate of the chairman of the Court of Pleas and
Quarter Sessions, to the official character of the clerk, and the faith and
credit due to his official acts, and this, again, is followed by the certifi
cate of the clerk to the official character, etc., of the chairman. These
certificates bear date the 7th and 8th of May, 1848. At the hearing of
the cause before the Chancellor, the defendants objected to the reading
of the will in question, "because not authenticated according to law,"
and "because the said paper had not been filed in court according to
law." The Chancellor overruled the objections, and permitted the
copy to be read, and the defendants tendered their bill of exceptions,
which was signed accordingly. The objections are manifestly too gen
eral, and cannot avail the defendants under the rulings of this court.
It has been repeatedly held, that the objections made to the reading of
evidence and exhibits in the court below must be clear and specific, and
this, for the obvious reason that the opposite party may have the op
portunity of curing the defect if it be one, and not be taken by surprise
when that opportunity can no longer be had. It is now urged that the
certificate of [419] the clerk is insufficient for want of a seal, and that
the exhibit was filed during the term at which the cause was heard, with
out the one day's notice required by the 19th Chancery Rule.
It does not appear from the bill of exceptions that either of these ex
ceptions was made, or could have been made, in the court below.
Neither objection can now avail without showing, by bill of exceptions,
that it was distinctly taken in the court below; and the absence of the
seal in the transcript must be considered as a mere clerical omission.
Moreover, under the pleadings and proof, the defendants would not be
benefitted by the exclusion of the copy of the will objected to. The an
swers, as we have seen, admit the existence of the will of Samuel De
loach, "duly proved and admitted to record," and that it contains a
clause identical with that upon which the complainants rely, except that
one of the negroes therein mentioned is designated by the name of Hes
ter instead of Hasty. The proof is conclusive that the testator had no
such slave as Hester, and that the negroes devised to his daughter Tracy,
were the two children of Jenny, as to whose names there is no discrep
ancy in the testimony. The defendants themselves admit that Hasty
was the daughter of Jenny, and insist that Wm. Spicer, under whom
they claim a good title to Hasty, by virtue of a gift to him of Jenny,
by Samuel Deloach. We have no doubt, therefore, that these prelim
236INGRAM 27. SMITH. 419– 421
inary objections are merely formal, and do not affect the merits of the
controversy.
The clause in Samuel Deloach's will upon which the complainants rely,
is as follows:
"I give and bequeath to my daughter Tracy Spicer, [420] during
her natural life, two negroes, Daniel and Hasty, which negroes, after her
death, and the death of her husband, I give to be equally divided be
tween the heirs of my son Jesse and daughter, Polly Ingram."
The first objection made to the complainants' claim under this clause,
is, that Daniel and Hasty were the children of a negro slave named
Jenny. That Jenny had been given to Wm. Spicer and wife, many years
before the making of this will; that Spicer had acquired a title to Jenny
and had actually sold her before the will was made; and the testator had,
in fact, had no right to Jenny's children when he thus undertook to be
queath them.
On the other hand, it is insisted that Jenny was not given, but only
loaned to his daughter by the said Samuel Deloach, and that no length of
possession by the husband and wife, nnder the laws of North Corolina,
would turn the loan into a gift. That the sale of Jenny was with the as
sent of the testator, and that the testator did actually own Daniel and
Hasty at his death. These occurrences having all taken place in the
State of North Carolina, among parties then living in that State, the
rights of the parties must depend upon the local law applied to the facts
as developed in the record. The questions of law involved have been
repeatedly passed upon by the courts of North Carolina, and are not, in
reality, seriously controverted.
"It has long been settled," says Henderson, J., in Collier v. Poe, 1
Dev. Eq. 56, "by the decisions of our courts, that if a parent puts prop
erty into the possession of a child who has left, or is about to leave the
parent, such property is presumed to be given, and [421] not loaned to
the child, and, therefore, purchasers and creditors have subjected it to
their claims, whatever may have been the private understanding of the
parties. But this is a presumption of fact and not of law. Clearly there
fore, between the parties, and all others who cannot impute either legal
or actual fraud to the transaction, the true character of the act may be
shown.
It was also held in that case, that if the loan was established as a mat
ter of fact, the statute of limitations would not operate upon husband's
possession, although he had sold some of the negroes as his own, and
notwithstanding his declarations that he held for himself. He could
not, by his own act, throw off his character of bailee. These principles
have been repeatedly laid down by the court of last resort in North Car
olina, upon parol bailments of slaves, prior to their act of 1806. Mitch
ell v. Cleves, 2 Hayw., 126; Dameron v. Clay, 2 Dev. Eq. 17; Hill v.
237422– 423 HEAD's REPORTs.
Hughes, 1 Dev. & B. 336; Green v. Harris, 3 Ired. 210. Accord
ingly, a continuous possession by the husband of twenty years in
Collier v. Poe, and of over forty years in Green v. Harris, was held in
sufficient to vest title in him, although in each case the husband publicly
claimed the negroes, and disposed of some of them. An actual demand
by the bailor, and a refusal by the bailee, was considered necessary to
establish an adverse holding upon which the statute of limitations could
operate.
With these principles before us, there can be little difficulty in settling
the rights of the parties upon the facts of this case. It is shown that Wm.
Spicer intermarried with Tracy Deloach, then only fourteen years of age,
about the year 1790, against the wishes of the [422] father, Samuel
Deloach, and by a clandestine marriage. Spicer and wife resided, after
the marriage, in the same county with Samuel Deloach, and a few miles
distant. Deloach seems never to have had any friendly feelings for
his son-in-law, who was inclined to be dissipated and improvident. But
not long after the marriage, the negro Jenny, then a small girl, was de
livered into the possession of Tracy Spicer by her father, and carried
home by her. Jenny remained in the possession of Spicer and wife un
til she had three children, Daniel, Hasty, and Sarah. Some eight or
nine years after the marriage, Deloach moved to Johnston county, some
eighty miles from his former residence. In 1804, Wm. Spicer sold
Jenny and her youngest child, Sarah, to one Byrant, and purchased a small
tract of land with the proceeds. After Deloach's removal to Johnston
county, it appears from the testimony of at least one witness on behalf
of the complainants, and one on behalf of the defendants, that Daniel
and Hasty were, for a short time, in the possession of Samuel Deloach,
and were again bought back by Mrs. Spicer. The will was made on the
29th of October, 1805; shortly after which testator died. About the
year 1810, Spicer and wife removed to Wilson county, in this State,
where they continued to reside up to their death. They brought with
them Daniel and Hasty, and retained them and Hasty's increase until
the sale of Hasty and her children to George Smith, about 1820, and of
Daniel to one McGregor, about 1827.
There is no proof as to the circumstances of the delivery of Jenny to
Tracy Spicer by her father, except the testimony of Tracy Spicer and
her husband, [423] Wm. Spicer. Their depositions were taken in be
half of the defendants, and are excepted to by the complainants upon
the ground of the incompetency of these witnesses to tetify. It is con
ceded by the defendants' counsel, that these witnesses would be incom
petent under the decisions of the court (Burke v. Clark, 2 Swan, 310)
without a release; but it is insisted that sufficient releases have been ex
ecuted, and they refer to the releases of Henry F. Smith, A. McClain,
and Ross Webb, exhibited in the transcript. It is very obvious, how
238INGRAM ty. SMITH. 423– 425
ever, from the recital of facts already given, that these releases are not
sufficient. There is no release from the defendant, Wm. H. Evans, who
has one of the slaves in his possession, nor from some of the distribu
tees of the estate of George Smith, deceased, who received Hasty and
some of her children as such distributees; nor from the personal repre
sentative of George Smith. If it were necessary, therefore, we should
be compelled to hold that the witnesses were not competent, and to ex
clude their testimony.
In truth, however, upon a careful examination of the depositions of
these witnesses, we are satisfied that they make out a case in favor of
the complainants, and render that clear, which, in the absence of their
evidence, would be somewhat doubtful.
Both of these witnesses state roundly, upon their examination in
chief, that the negro, Jenny, was given to them by Samuel Deloach,
shortly after the marriage, and that they continued ever afterwards to
claim them as their own. But both witnesses, upon cross-examination,
state facts which demonstrate the incorrectness of their previous mere
conclusion. Wm. Spicer [424] states distinctly that he was not pres
ent when the negro, Jenny, was delivered to his wife, and that he never
had any conversation with Deloach about the girl Jenny, either before
or after such delivery. He further admits, that when he sold Jenny to
Bryant, he gave him a bill of sale, but Bryant having heard that there
would be a dispute about it, he went to see old man Deloach, who
signed the bill of sale. Mrs. Spicer testifies that when her father deliv
ered Jenny to her, "he told me to take the girl, go along home with
her, and make her wait upon me." This is the only proof of a gift in
the entire record; and it is hardly necessary to say that such language
would not constitute an absolute gift of the title of a slave under any
system of laws, and certainly not under the North Carolina decisions.
Nor is there any evidence to show acts of ownership, on the part of
Wm. Spicer, with the knowledge of Deloach, inconsistent with the title
of the latter, except the sale of Jenny and her youngest child Sarah,
to which he gave his express assent, doubtless for the reason that the
proceeds were to be invested in a tract of land, as a home for his
daughter. The discrepancies in the testimony of Spicer and wife, and
the positive proof of numerous witnesses contradicting them in mate
rial points, satisfy us that little weight can be given to their statements.
But, upon the point as to whether the slave Jenny was given or loaned,
we have no hesitation in saying that the facts deposed to by them con
stitute only a loan, and that they state no other facts inconsistent with
a continuation of the relation of bailor and bailee up to the death of
Samuel Deloach.
Excluding the depositions of Spicer and wife, the [425] evidence is
entirely satisfactory that the negro Jenny was received and held as a
239425, 426 HEAD's REPORTs.
loan. At least one witness on each side establish the fact that the pos
session of the negroes was resumed by Samuel Deloach shortly before
his death, doubtless for the purpose of establishing his ownership. The
evidence is conclusive that, after the removal to Tennessee, Spicer and
wife repeatedly and almost invariably, when the subject was mentioned
in their presence, admitted that they had only a life-estate. It is in
proof by one witness that he read over to them Deloach's will, including
the clause upon which the complainants' rights depend, and they did
not deny its validity. It is, also, very conclusively shown that the fact
was generally known in Wilson county that they had only a life-interest,
and that George Smith, who was a constable in the county, was aware
of the fact at the time of his purchase. In fact it was admitted by
counsel, that the defendants could not protect themselves under the plea
of a bona fide purchaser for value and without notice, even if this were
a case for the application of the principles. Upon the whole, we are
very clear that the title to Daniel and Hasty was in Samuel Deloach at
his death, and, consequently, that the legatees in remainder took a valid
interest under the clause quoted.
It is argued on behalf of the defendants that the will gives the re
mainder in the negroes to Polly Ingram, and not to her heirs in connec
tion with the heirs of Jesse Deloach. No authority is referred to in sup
port of this construction, nor can any, we presume, be found. The in
tention of the testator is too clear to admit of doubt that the remainder
should go equally to the heirs of his son [426] and daughter named.
Similar clauses have repeatedly come before the courts, and particularly
the courts of North Carolina, and have always been so construed.
Buellock v. Buellock, 2 Dev. Eq. 307; Ward v. Stowe, 2 id. 309; Seay
v. Winston, 7 Humph. 472.
It was, also, urged in argument, that the bequest was not effective,
inasmuch as it did not appear that either Jesse Deloach or Polly Ingram
had any children at the date of the will; that an examination of the
authorities would show, that whenever the word heirs was construed, in
such cases, to mean children, it would be found that there was a child in
existence at the date of the will to answer the description. No authority
was cited to sustain the distinctinction suggested, nor do we see, that
either in principle or upon authority, the existence of children at the
time of the execution of the will, is at all material, if there are persons
to answer the description when the bequest is to take effect. Besides,
even if the rule were as contended for, it would not alter the result. It
might be conceded, that in order to construe the word "heirs," as
meaning children, a child must be in existence when the will is made,
yet the only effect would be, in the absence of such child, to construe
the word heirs, as meaning heirs proper as to realty, and next of kin as
to personalty; and taken, if children were in existence when the bequest
240INGRAM 27. SMITH. 426-428
took effect, they would take as such heirs and next of kin. The word
heirs, as was decided by this court in Ward v. Saunders, 3 Sneed, 387–
391, "is flexible, and may mean next of kin, or heir at law, according
to the nature of the property given." To the same effect are the North
Carolina authorities. Simms [427] v. Garrot, 1 Dev. and B. Eq.
393; Bryant v. Scott, ib. 156. These authorities also hold, that a
bequest of slaves to A for life, with remainder to the lawful heirs of B,
when it appears from the will that B is living, is tantamount to a bequest
to the children of B; and is to be divided among those who shall be in
esse at the death of the first taker. See also, Jourdan v. Greer, 2 Dev.
Eq. 270. It appears from the will of Samuel Deloach, that both Jesse
Deloach and Polly Ingram were then living, for specific bequests are
given to each. It is, also, now definitely settled in that State, after some
conflict among the cases, that in a bequest, as in this cause, to the heirs
of two persons, the persons answering the description when the bequest
takes effect, take per capita, and not per stirpes. Bryant v. Scott, 1
Dev. & B. Eq. 156; Ward v. Stowe, 2 Dev. Eq. 509. These conclu
sions are in consonance with general rules of construction, and with our
OWn CaSeS.
There remains only one point to be disposed of. It is insisted, that
the relief granted in this case can only extend to the complainants, and
cannot include the defendants, the heirs of Jesse Deloach. We do not
think so. It is the settled law of the Court of Chancery, that a decree
may be made between co-defendants, grounded upon the pleadings and
proof between the complainant and defendants, and founded upon, and
connected with the subject matter in litigation between the complainant
and one or more of the defendants; and it is the constant practice of
the court to make such decrees, to prevent multiplicity of suits. Chum
ley v. Dunsanay and others, 2 Sch. and Lef. 710; Elliott v. Pell, 1
Paige, [428] 268; Gentry v. Gentry, 1 Sneed, 87. The fact that the
defendants, on whose behalf the decree is sought, have been brought
before the court by publication, can make no difference. The mode in
which parties are brought into court, is regulated by the law of every
country, and within the territorial jurisdiction of that country, the de
cree will be effectual. Whatever may be the extra-territorial effect of .
the decree, the parties who are actually, in the eye of the law, in court,
must have their rights acted upon. This is more particularly the case
when, as in the present instance, the defendants are jointly interested
with the complainants in personal property, the subject matter of the
litigation. The original defendants very properly objected to the want
of proper parties, because the heirs of Jesse Deloach were not before
the court, and they cannot now be heard to say that the rights of these
parties, brought in at their own instance, shall not be acted upon.
It is suggested that the heirs of Jesse Deloach may have renounced
WOL. I. HEAD. P 241428-430 HEAD'S REPORTS.
their right under their grandfather's will to these negroes, or may not
now choose to claim them. If the renunciation referred to, had been
made, the defendants in possession of the negroes, were at liberty to
show it, and would have had all the benefit, as upon a personal service
of process upon the children of Jesse Deloach. If the said children
decline to come forward and take any benefit under this decree, it will,
unquestionably, inure to the benefit of their co-defendants. The com
plainants are only entitled with the children of Jesse Deloach, to an
equal division, per capita, of the negroes. If any child declines or fails
to take his share, it will remain with the defendants now in possession.
It appears [429] from the amended bill of the complainants filed
to bring the heirs of Jesse Deloach before the court, that all of these
heirs are probably not named. Under the construction put upon this
will in the Chancellor's decree, and in this opinion, it is not possible to
ascertain the precise interest of the complainants, without first ascertain
ing the number of the heirs of Jesse Deloach entitled to take at the
death of the tenants for life. In this view, it will be necessary to modify
the decree of the Chancellor, and remand the cause for further proceed
ings.
The children of Jesse Deloach and Polly Ingram, living at the death
of the last surviving of the tenants for life, will take the slaves to dis
pute per capita. They will be entitled to a division of the slaves, if it
can be made among them. If not, the parties would be entitled to a
sale for division. Should the children of Jesse Deloach fail to come
forward and claim their share of the negroes, and should a division of
the negroes be impracticable, we think, it would be proper and just to
ascertain, by reference to the master, the interest of the complainants
in the negroes held, by each of the defendants, and to allow such de
fendant to pay the same into court, or secure the same to be paid in such
time as might be deemed reasonable, and to vest the defendants with a
good title to the interests thus paid for. The defendants in possession
of the slaves, must account for hire since the complainants' rights ac
crued, upon the principles here laid down, all proper allowances for
taxes, medical bills, etc., being made them. The entire costs of the
cause will be paid out of the hire, as aforesaid, the appellants and their
sureties, in the meantime, [430] paying the costs of this court, for
which they shall be allowed a credit in taking the account ordered.
With these modifications, the decree of the Chancellor is affirmed.
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