Detinue, brought to recover five negro slaves. The plaintiff in support of his title offered in evidence a deed from Elizabeth McGee to himself for the negroes in question, by which these negroes were conveyed to him in trust for her brother William McGee, "to be kept, hired out, or otherwise disposed of for the maintenance and support" of the said William McGee. The plaintiff then proved that he had the said *Page 186 slaves in his possession for six months; that the defendant then came to his house, seized them and took them off. The plaintiff further proved a demand upon the defendant for the slaves.
The defendant Hussey showed that he was a deputy sheriff of Duplin County, and that he levied an execution in favor of Samuel Houston against the said William McGee, on the said negroes, and took them into his possession by virtue of such levy. The defendant contended that William McGee had such an interest under the deed referred to as was the subject of execution, and, therefore, they had a right to levy on and sell the negroes.
The court instructed the jury that the interest of William McGee under the said deed was not the subject of execution; and the jury accordingly returned a verdict for the plaintiff. Judgment having been rendered pursuant thereto, the defendant appealed to the Supreme Court. The only question presented by the case is, Had William McGee such an interest in these negroes as rendered them, in the hands of the trustee, liable to be seized and sold for the debts of William McGee, under the process under which the defendant acted? The judge who tried the cause was of opinion he had not; and in this opinion we entirely agree with his Honor. Questions of a similar kind have so often been before this Court that the principle governing this case is well established. It is not necessary we should go through a labored argument, or review the numerous cases bearing on the question, to show that William McGee had no such interest in the slaves as could be reached by a fieri facias at law. Gillis v. McKay, 15 N.C. 174, furnishes us precisely with the rule governing this. In all cases within the act of 1812 subjecting equitable interest to be sold under execution the sale of the property by the sheriff divests the legal title of the trustee, and transfers it to the purchaser, who holds the property "freed and discharged" from the trust. Rev. Stat., ch. 45, sec. 4. In Gillis v.McKay the Court say: "The principle that the legal estate is not to be transferred or divested out of the trustee unless that may be done (258) without affecting any rightful purpose for which that estate was created or exists. Wherever the cestui que trust has not the unqualified right to call for the legal estate, and to call for it immediately, the act does not apply. If it did, the sheriff could confer upon the purchaser a larger estate than the cestui que trust had or could have." The Court proceeded to say "if the nature of the trust requires it to remain *Page 187 in the hands of the trustee, who, by the terms of the deed, is to do acts from time to time," as to receive and apply the profits annually to the maintenance of another for life, or if the profits are to accumulate until a particular period, the case is not provided for by the act. In McKay v.Williams, 18 N.C. 406, the case of Gillis v. McKay is noticed, and the principle established by it approved. We think this is such a case. The deed conveyed to the plaintiff the legal estate in the negroes, in trust for William McGee. Had William McGee an unqualified right to have the legal estate taken from the trustee and transferred to him, and to have it transferred immediately? He had not, because it was necessary the legal title should remain in the trustee to enable him to perform the trust. He had acts to do from time to time; he had to keep the negroes hired out for the maintenance and support of William McGee, or he was otherwise to dispose of them for the same purpose. It was evidently not the intention of the donor that William McGee should have the management or the possession of the negroes. She was unwilling to entrust him with them. Her object was to provide for his support during his life. To permit him, them, to take the legal estate from the trustee would be to defeat the intention of the donor and the purpose for which the trust was created — a rightful and legal purpose; and if he was not entitled to call immediately for the legal estate, according to the principle established by Gillis v. McKay, the case is not within the operation of the act of 1812. He had no such interest in the slaves as could be reached by an execution at law. The defendant was, therefore, not justified in seizing them.
PER CURIAM. No error.
(259)