Chisholm v. Starke

A, devises slaves to his wife for life, remainder to his children. The wile marrics B. who empowers C„ to sell the slaves. Cl. does sell them to IX who was ignorant of the right of those in remainder j and I). sells them to IX If the remainder-men bring a bill of quia timet against B. XX and XX, the Court will decree B. to give security for the forthcoming of the slaves, [and their increase,] at the death of his wife 5 hut, as IX was a purchaser without notice, he will not he compelled to give such security.

This was an appeal from the High Court of Chancery. 'The bill states, that James Underwood, the father of the plaintiffs Jinn Starke and Martha Underwood, who live in the City of Richmond, died in 1773, haying first mads his will, and thereby devised, as follows: "I lend to my loving wife Ann, the use, labour, and profits of one third of my slaves, during her natural life; my will and desire is that the dower slaves of my loving wife Ann (meaning the third lent to her as aforesaid) may be equally divided at her decease amongst all my children.” That, the said Ann took possession of a third part of the slaves, which have greatly increased; but, through the severity of her, and her second husband, William Richardson, (of Hanover county,) they are reduced to three: That the said Ann is consumptive, and Richardson in danger of insolvency; and that, conscious thereof, he has frequently endeavored to sell the slaves as his absolute property. In pursuance of which, he empowered Burnett to sell one, by the name of Judy. That Burnett sold her to Chisholm, who lives at a great distance up the country, for 50/. the estimated value of the full property of such a slave. That Richardson has attempted to sell others; and pretends, that the increase of the slaves is his. The bill, therefore, prays, that Richardson and Chisholm may give security for the forthcoming of the slaves, at the death of the said Ann; and for general relief. The answer of Richardson and wife, admits the will, but denies the severity; states, that the defendants thought, until now, that the increase was their’s, as part of the profits of the slaves; but submits the construction of the will to the Court. Admits the sale of Judy; but it was only meant to sell the right of the defendants; and, if more was done through mistake, the plaintiffs cannot complain, as after this discovery, they may recover of Chisholm: Insists, that no security ought to be decreed. The answer of Chisholm states, That, in April, 1796, Burnett came into the defendant’s neighborhood, (about 40 miles from Richardson’s,) and sold the slave Judy for 50/. (which is her full value, to the defendant, under a power from Richardson; whom, the defendant then supposed to be the true owner. That afterwards, and before the defendant had the least intimation of the suit, (if it were then commenced,) he sold the said slave to Peebles, for 60/. There' are in the record, Richardson’s power of attorney; Burnett’s bill of sale; and a copy of Underwood’s will, which contains the above recited clause exactly, but in a latter part thereof, the testator devises the slaves to be equally divided, at his wife’s death, among all his children. and ¿Inna Underwood. The cause was heard, by consent, on the bill, answers, and exhibits; but the replication does not appear to have been withdrawn.* The, Chancellor decreed, that Richardson should give bond in the penalty of 500/.; conditioned for delivering to the plaintiffs, the slaves in his possession, and their increase, living at the death of the defendant, ¿Jnn his wife. And that Richardson and Chisholm should give bond, in the penalty of 500/. for delivering Judy and her increase. From this decree, Chisholm appealed to this Court.