Hollsclaw v. Johnson

This bill is demurred to, upon several grounds ; but one is insisted on, in the argument, and will be alone considered. The bill alleges, that on the 4th day of January, 1826, Nancy Cosby, of the county of Warren, in said State, made her deed of gift, by which she conveyed to her three grand-children, Columbus, Nancy, and Robert Johnson, a negro girl, by the name of Harriet, to them and their heirs forever ; provided, that if any, or either, of the above named children should die, before they become of age, or married ; the said negro girl and her increase to revert to, and become the property of, the others, to be for their mutual benefit ; and at their arriving at the years of mature age, to be distributed among them, according to equity and justice. The bill further alleges, that the complainant, Hollsclaw, married the said Nancy, and that she afterwards died, arid that he had taken out letters of administration on her estate; that Columbus, another one of said children, in the year 1836, died, without having married, or attained the age of twenty-one years ; and that the defendant, Mordecai Johnson, who is the guardian of Robert, the other child, had had the possession of the said negro, and her increase, now alleged to be three children, since the first day of January, 1838 — the said negroes having been fraudulently carried oft', from the county of Wilkes — and has appropriated the hire, use, and proceeds of said negroes, to his own use ; and the bill prays that a partition may be made, of the said negroes and their increase, and hire, and that he may have a decree, for one half of the same; and also prays that said defendant may be required to give security, not to remove said negroes, &e. The ground, insisted on in the demurrer, is this — “That complainant seeks a partition of personal proper- *147“ ty, to which he claims title, by a deed of gift; and that it appears, “ from the bill, that said property, conveyed by said deed, was not, “by the express terms thereof, to be distributed to the donees, until “ they arrived at mature age ; and that it does not appear, that they “have arrived at mature age, but on the contrary, that one of them, “ to wit, the ward of defendant, is yet a minor.” This is a general demurrer, which goes to the whole bill; and if it shall appear, that complainant is entitled to any part of the relief prayed, the demurrer will not be sustained. The deed conferred upon the three children an estate in joint tenancy, and they were jointly entitled to the possession of the property, from the time of its creation, until the death of Columbus ; and at his death, they were jointly entitled to his portion, as survivors. So it will be perceived, that complainant has as much right to the possession, as the defendant; and as such, is certainly entitled to one half of the hire of said negroes, for the time, that he has been deprived of the possession and uso of the same. Whether he is entitled to have a partition of said negroes, before the said Robert arrives at full age, is a question of some doubt, depending upon the proper construction of the deed. But I do not consider it important, to decide this question, at this time, as it will be time enough to determine that question, on the hearing of the bill, it is therefore ordered, that the demurrer be overruled, and that said bill stand for an answer.