Martin County NcArchives Court.....Elkanan W. Latham, Richard H. Bonner V. 1840
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Source: N C Reports
Written: 1840

Richard H. Bonner v. Elkanan W. Latham

A grantor by a deed, dated in 1833, conveyed a certain slave to her son-in-law 
B. and his wife T. till her grand-daughters M. and S. attained the full age of 
twenty one years or married; and if B. died before the expiration of that 
period, leaving his wife, then the right to vest in her until the age of 
twenty one years or the marriage of M. and S.; if the said T. died before her 
husband, then the whole property to vest in the said M. and S. to be equally 
divided between them as tenants in common, and from and after the full age of 
twenty one years or the marriage of the said M., then the one half of the said 
property to be equally divided and delivered to the said M., her heirs, &c., 
and after the full age of twenty one years or marriage of S. the other half of 
said property to be divided and delivered to her, her heirs, &c.; and if 
either M. or S. should die without leaving lawful issue, the property to go to 
the survivor; and if both die without leaving lawful issue, then to return to 
the grantor. Held by the Court, that as the limitations in the deed, by force 
of the act of Assembly, must be construed as an executory devise in a last 
will would be the grand-daughter M., on her marriage, became a tenant in 
common with the son-in-law B., though the other grand-daughter S. was still 
under age or unmarried.

This was an action of detinue, brought to recover a negro man named Toby, and 
tried at the Fall Term, 1840, of Beaufort Superior Court of Law, before his 
Honor Judge Dick. The facts of the case as agreed on by the parties, were as 
follows:

One Sarah Winburn, on the 15th of October, 1833, conveyed the negro Toby, 
among other slaves, to one Nathan Brown and his wife Temperance, and to Mary 
F. Wilkins and Sarah J. Wilkins, for the purposes set forth in the said deed, 
a copy of which is hereto attached and made a part of this case. It was 
admitted that Nathan Brown sold and conveyed the said negro Toby to the 
plaintiff in this action. It was further admitted that the defendant 
intermarried with Mary F. Wilkins, before she arrived at twenty one years of 
age; that, after the defendant's marriage as aforesaid, he got the negro Toby 
into his possession, and had him in his possession at the time this action was 
brought. It was further admitted that Sarah J. Wilkins was under twenty one 
years of age and unmarried at the time this action was brought, and that she 
has since married; and that Nathan Brown and his wife, and Mary F. Latham and 
Sarah Jane are all now living. The plaintiff in this suit claimed the absolute 
property in the negro Toby under his purchase from Brown, as before stated.

The deed referred to from Sarah Winburn, is in these words:

"Know all men by these presents, that I, Sarah Winburn, of the county of 
Martin and State of North Carolina, for the natural love and affection which I 
have and do bear for and towards my daughter Temperance Brown and my two 
granddaughters (namely) Mary Frances Wilkins and Sarah Jane Wilkins, and for 
their better maintenance and preferment in life, and also for and in 
consideration of the sum of ten shillings to me in hand paid before the 
execution of these presents by said Mary Frances Wilkins and Sarah Jane 
Wilkins, the receipt whereof I do hereby acknowledge, have given, granted, 
bargained and sold, aliened and confirmed, and by these presents do give, 
grant, bargain, sell, alien and confirm unto Nathan Brown and his wife 
Temperance, until the full age of twenty one years or the marriage of said 
Mary Frances Wilkins and Sarah Jane Wilkins, children of James Wilkins, dec'd, 
and my grand children, whichever may first happen; but if the said Nathan 
Brown shall die before his said wife Temperance and during their being 
unmarried or under twenty one years of age, that his right therein shall cease 
and the same shall be vested in the said Temperance until the full age of 
twenty one years or the marriage of said Mary Frances Wilkins and Sarah Jane 
Wilkins; but if the said Temperance shall die before said Nathan, then the 
whole property and estate shall vest in the said Mary Frances Wilkins and 
Sarah Jane Wilkins, their heirs and assigns, to be equally divided between 
them as tenants in common; and from and after the full age of twenty on years 
or the marriage of the said Mary Frances Wilkins, then the one half of the 
said property and estate to be equally divided and delivered unto the said 
Mary Frances Wilkins, her heirs and assigns forever; and from and after the 
full age or marriage of said Sarah Jane Wilkins, then the other half of the 
said estate or property to be divided and delivered unto the said Sarah Jane 
Wilkins, her heirs and assigns forever; and in either of my said grandchildren 
shall die without leaving lawful issue of her body living at the time of her 
death, then and in that case the part or share of her so dying shall go to be 
vested in the surviving granddaughter, her heirs and assigns forever. In case 
the survivor of them shall die without leaving lawful issue of her boy at the 
time of her death, then the whole of said property given her herein and 
accrued to her by survivorship, shall be vested in and go to me the grantor 
and to my heirs and assigns, the following property, both real and personal, 
to wit: a certain tract or parcel of land, lying and being in the county of 
Martin and State of North Carolina, described in a deed, &c. (here the land is 
described) Also the following negro slaves, to wit: (naming the slaves) to 
have and to hold the said land and slaves, with all the improvements and 
appurtenances to the said land belonging in manner before mentioned. And it is 
understood and agreed between the said grantor Sarah and the said Nathan 
Brown, that the said Nathan, during his term in said property, is bound to 
school and clothe the said Mary Frances Wilkins and Sarah Jane Wilkins, at his 
own expense to the value of the profits of said property, but subject to no 
account for the profits or use and occupation of the same during said time 
umto any one whatever, nor for his failure to so school and clothe them; but 
he shall be liable to account for the profits, use and occupation of the 
property after the respective age of twenty one years or the marriage of said 
two granddaughters or children of said grantor. In witness whereof, the said 
grantor hath hereunto set her hand and seal, this the 15th day of October, A. 
D. 1833.

Sarah Winburn (Seal)
Witness,
Matthew Shaw

The jury rendered a verdict for the plaintiff, and found a value of the negro 
Toby to be one thousand dollars, and assessed damages for the detention up to 
the time of trial to three hundred and fifty dollars, subject to the opinion 
of the Court whether the plaintiff could maintain this action. The Court, 
being of opinion that the plaintiff could not recover, ordered the above 
verdict to be set aside and a nonsuit entered; from which judgment the 
plaintiff prayed for and obtained an appeal to the Supreme Court.

No counsel for the plaintiff
Badger for the defendant

NC Supreme Court Judge Daniel - If the limitations in a deed of slaves were 
contained in a last will, and would be good as an executory devise, they shall 
be good and effectual in the deed as a remainder. The plaintiff had but the 
interest in Brown in the slave under the deed of Sarah Winburn. To ascertain 
what that interest was, it may be necessary to divide the deed into five 
branches. First, the settlor, by the deed, gave the slave to her son-in-law 
Brown and his wife Temperance, until the full age or marriage of Mary and 
Sarah Wilkins, which may first happen. Secondly: But if Brown shall die before 
his wife and "during their being unmarried or under twenty one years of age" 
then the right shall vest in the wife of Brown, until the full age of twenty 
one years or the marriage of Mary and Sally Wilkins. Thirdly: But if the wife 
should die before the husband, then the whole property shall vest in the said 
Mary and Sarah Wilkins, their heirs and assigns, to be equally divided between 
them as tenants in common. Fourthly: "And from and after the full age of 
twenty one years or marriage of Mary F. Wilkins, then the one half of the said 
property and estate to be equally divided and delivered to her and her heirs 
forever." As to the other moiety, it is given to Sarah J. Wilkins in the same 
terms. Fifthly: Brown is made liable to account for the profits of the estate 
only "after the respective age of twenty one years or the marriage" of the 
granddaughters of the settlor.

The plaintiff contends that Brown was entitled to the exclusive interest in 
the slave until Mary and Sarah both married, or both should arrive to the age 
of twenty one years, or one should marry and the other arrive to the age of 
twenty one years. Both of the girls had not married at the date of the writ. 
Sarah then was single and under age.

From the reading of the whole deed, and particularly the fourth and fifth 
branches of it, the intention of the settlor seems to be apparent, that on the 
event of either of her granddaughters marrying or arriving at age, one half of 
the property should immediately vest in such granddaughter. The estate was not 
intended to remain in Brown and wife until both the girls married. The grantor 
was making a provision for each of the girls to take effect at such time as 
they or either of them might reasonably want it. We are of opinion that, at 
the date of the writ, the defendant was tenant in common of the sale with the 
plaintiff. One tenant in common cannot maintain detinue against his co-tenant 
to recover the possession of the chattel so held in common. The judgment must 
be affirmed

Per Curiam
Judgment affirmed

Additional Comments:
In the NC Supreme Court December Term 1840

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