To all persons to whom these presents shall come, I, Thomas Graham, of the county of Moore and State of North Carolina, send greeting: Know ye that I, the said Thomas Graham, for and in consideration of the natural love and affection which I bear and have to my niece, Mary Graham, daughter to Robert Graham, and for divers other good causes and consideration of hereunto, have given and granted to the said Mary Graham, my negro girl named Sarah, with her increase, to have, hold, and enjoy the said negro girl unto the said Mary Graham, her executors, administrators, and assigns forever, clear and free against any person or persons claiming any right, title, or interest to said girl, I, the said Thomas Graham, and shall and will warrant and forever defend by these presents. In witness whereof, I, the said Thomas Graham, do hereunto set my hand and seal this 16 May, 1817.
THOMAS GRAHAM, L. S. *Page 179
Thomas Graham died intestate, and the defendants took into their possession the negro girl named in the bill of sale as part of the estate of their intestate. The present action was brought to recover the negro, and came before this Court on the appeal of the plaintiff from the judgment rendered below. Originally, terms for years and personal chattels could not by deed be limited over by way of remainder after a life estate. Cro. Eliz., 216; 1 Co., 153; Chedington's case, Dyer, 253; Shep. Touch., 332. And however the law may be altered as to chattels real (Shep. Touch., 274; Bac. Abt. "Remainder a.," 1st Am., from the 6th London Ed.; 1 Burr, 282; 1 Hen. Bl., 540), as to personal chattels, it remains the same unless such limitations over is created by will or by way of trust. I am not aware of any case that can be shown to the contrary.
In the present case, no express estate for life is created by the deed to Mary Graham, with a limitation of a remainder over afterwards, yet the property in the negro is conveyed and granted at the death of the grantor, which is the same thing. If the grant is good the grantor has a life estate, and the remainder, at his death, vests in the grantee, the present plaintiff; so that it appears to me to resemble the common case of conveyance by deed of personal property for life, remainder to another after the expiration of a life (324) estate.
I think it a hard case that this species of property cannot be conveyed in a mode apparently so simple, when the reason upon which the rule was originally founded is no more, and cannot but regret that decisions upon the subject had not been made more conformable to the nature of this kind of property, and the convenience of those who possessed it. But, as it is my duty to expound and not make the law, I feel myself bound to give judgment for the defendant.
TAYLOR, C. J., and HENDERSON, J., concurred.
PER CURIAM. No error.
Cited: Foscue v. Foscue, 10 N.C. 544; Morrow v. Williams, 14 N.C. 264;Hunt v. Davis, 20 N.C. 37; Foscue v. Foscue, 37 N.C. 324; Newellv. Taylor, 56 N.C. 376; Dial v. Jones, 85 N.C. 225; Outlaw v. Taylor,168 N.C. 512. *Page 180