March, 1836. Lillard V Rucker. NASHVILLE, the act of 1789, c. 23? In some of the states no such special statutes may exist; what in such state but the general statute, would prevent the plaintiff at any time from recovering against an administrator of the intestate. This shows that the debt is not extinguished by the bar of the statute, and indeed, this point was determined at the last term of the court, in the case of the Nashville Bank against the plaintiff, Marshall, and also in the case of the Nashville Bank against Campbell, reported in 7 Yerg. If more than the remedy had been taken away; if the debt had been extinguished, no judgment could have been rendered against the plaintiff, in favor of the bank, at the last term. We are therefore of opinion, that the plaintiff take his motion. Judgment for plaintiff. LILLARD US. RUCKERS. Where a deed or other instrument is required by law to be registered, as to creditors, personal notice to the creditor will not do away the necessity of such registration, nor will such creditor be affected thereby. A conveyance, by deed, of slaves to a person or persons not in lessee at the time of such conveyance, as where a conveyance is made by A to such children as B and C may afterwards have, is inoperative, and vests no title in such after born children. In an action of detinue, a stranger who has no right or title to sue, cannot be joined with others who may have. Where a party is improperly joined as a plaintiff, the court may permit an amendment by striking out his name. This is an action of detinue brought for three negroes, by the defendant in error against the plaintiff in error. Lillard, as deputy sheriff of Rutherford county, levied an execution in favor of Thos. Rucker against Jonathan Rucker, the father of the plaintiffs below, on the negroes in question, as Jonathan Rucker's property. The record shows, that on the 14th day of May, 1829, Jonathan Rucker executed his note to Norvell & Walkers, of Nashville, with Thomas Rucker security, for seven hundred and fifty dollars, payable at the United States Bank at Nashville, seven months after date. March, 1836. V Rucker. The note was not paid when it fell due, and both the Ruc- NASHVILLE, kers were sued in Davidson county court, and at April term, Lillard 1831, judgment was rendered against them for debt and interest, amounting to eight hundred and seventy-one dollars, besides costs of suit. Several executions were issued on this judgment, and on the 5th day of January, 1833, it was satisfied by Thomas Rucker. On the 25th day of January, 1833, Thomas Rucker obtained a judgment, by motion in the circuit court of Davidson, for the amount of debt and costs paid by him as security for Jonathan; and on the same day an execution issued on the judgment against Jonathan Rucker, directed to the sheriff of Rutherford county, which execution the plaintiff in error, Lillard, on the 29th day of January, 1833, levied on the three negroes in controversy, which were then in Jonathan Rucker's possession. One of these negroes, together with his mother, was sent to Jonathan Rucker in 1808, shortly after his marriage, by Jones Read, his fatherin-law. The two others are the children of the woman, and were born while the mother was in Jonathan Rucker's possession. In 1815, Jonathan Rucker had become involved in debt, and Read went to Rucker's, took into possession and carried home the woman who had been sent to Rucker, together with all her children, alleging that they were only loaned, of which, there is some proof. Read kept the negroes in possession about one year, and then returned them all to Rucker, he and Rucker entering into a written agreement at the time Rucker got them in possession again, which was on the 1st day of April, 1816, specifying that they were loaned to Rucker "for the term of one, two and three years, from that date, subject to be returned when Read should make demand, or should desire them to be taken home," Rucker binding himself to pay taxes, feed and clothe them, &c. This agreement was proved by one witness, and registered in Davidson county, in 1816, and in Rutherford, in 1834. The negroes continued in Rucker's possession, under this loan, up to the 16th day of July, 1832, when Jones Read conveyed them all by deed of gift, to four of the defendants in error, (the children of Jonathan Rucker) by name, and to NASHVILLE, Lillard Rucker. any other children he might thereafter have. Francis, a joint plaintiff in this suit, was born after the deed was made. This deed was proved and registered on the 14th December, 1822, in Davidson county. Jonathan Rucker lived in Rutherford county, and the negroes were all there at the time this deed was executed, and continued there until the levy was made. The deed is as follows: "Know all men by these presents, that I Jones Read, do, for the natural love and affection I have for my grand children, Emmeline Rucker, Benjamin Rucker, Thomas J. Rucker, and James Rucker, children of Jonathan Rucker, who married my daughter Polly, and the children that the said Jonathan Rucker may have by his present wife, Polly Rucker, my daughter; I do, by these presents, give and grant, to the above named Emmeline, Benjamin, Thomas J. and Jonathan Rucker, and all the children that said Jonathan may have by his present wife Polly, a certain negro woman by the name of Jude, and all the said Jude's children and their increase; I do now say, I give and bequeath unto these children, all these negroes, to them and their lawful heirs forever, to be equally divided and allotted off to those children, when any of them may become of lawful age," &c. From the date of this gift, up to the levy on the negroes, Jonathan Rucker countinued to hold possession of the negroes for his children, who lived with him. It was proved that Jonathan Rucker was considered good for all his debts, from 1316 up to 1826, although somewhat embarrassed; and for most of the time, he had more than double enough of property to pay his debts. There was proof before the jury, tending to show that Thomas Rucker had notice of the existence of the deed of gift from Read to Jonathan Rucker's children, for the negroes in controversy. The court charged the jury amongst other things not necessary to be noticed, thus: "It is said at the bar, that Jones Read did lend them to Jonathan Rucker, and give him the possession of them again for one, two, or three years, at the option and will of Read; and that such a loan was indefinite, which is evidenced by the paper writing introduced by the plaintiffs. The court believes such a loan to be an indefinite March, 1836. Lillard V Rucker. one; and if the possession of such loan shall have remained NASHVILLE, with Jonathan Rucker for the term of five years, and no demand made and pursued by due course of law on the part of Read; and no reservation, limitation or remainder, shall have been made by will, or deed, or writing, duly proven and registered as required by law, the right, as well as the possession, would be vested in him, and the absolute property therein would be in him, as to his then existing creditors, and they have a right to consider the negroes as Jonathan Rucker's, unless his possession has been changed by a bona fide gift of the negroes by Read to Rucker's children; but in such case, such gift and change of possession could only affect creditors who had become such after such gift was made. And I hold, that unless there was an actual surrender of the possession by Rucker to Read, before or after the five years had run out, it would require a deed duly registered in this county, before Col. Rucker became a creditor, to supply the place of a change of possession; or, under the act of 1827, Col. Rucker must have had personal notice of the gift of the negroes, and of the deed evidencing that gift to the children, to supply the place of registration." The court then charged that the notice might be proved either positively or by circumstantial evidence. A verdict and judgment were rendered for the plaintiffs, and a new trial refused. W. E. Anderson & A. J. Hoover, for plaintiff in error. It will be contended by the defendants in error, that the deed of 1822 is a written reservation or limitation to the loan of 1816, and is a compliance with the act of 1801. We present two answers to this argument. 1. That the deed was not registered in Rutherford as the act requires, and not until after the levy of the execution, in April, 1834. 2. We contend for the plaintiff in error, that the act of 1801 requires the written reservation or limitation in writing to be executed at the same time the pretended loan is made. The statute does not declare this in terms, but it must be evident, that if the loan can be made on one day, and the re Lillard V Rucker. NASHVILLE, servation or limitation declared in writing five or six, or ten March, 1836. years afterwards, the statute will be a dead letter; every man who wishes can evade its provisions. Upon the supposed construction of this statute, the loaner will have nothing to do to defeat the statute, but to suffer the possession to remain for four years and eleven months, and then convey the title to a friend; which conveyee will thenceforward be the loanor, and the possession, although continued, will be upon a new loan from the new owner. This process can be repeated ad infinitum, and the statute fail to effect the security of the creditor. 2 Munf. Rep. 543, Gray vs. Mosely, is a case in point, a construction given to a similar statute of Virginia. This case also proves that no notice can be substituted for what the statute requires, to wit: registration. See, also, 4 Munf. Rep. 313. effect of notice, was which was a miscon The charge of the court as to the founded upon the act of 1817, c. 59, ception of the law. The act of 1827, makes registration good at any time, providing that it is not to "affect the rights of creditors, or bona fide purchasers, for valuable consideration without notice." Now, if the act of 1827 had any application whatever to this case, the words "without notice," in the proviso of that act, applies to purchasers only, and not to creditors. Washington vs. The Bank, Mart. & Yer. R. 301. But the great error is in applying the act of 1827 to the case; that act applies alone to the creditors of, and purchasers from the grantor, and not the loanee. The notice of the deed of gift from Read, of 1822, might effect the claim of a creditor of, or purchaser from Jones Read, by the act of 1827; but this act has surely nothing to do with the case provided for by the act of 1801. 4 Yerg. 449, and the cases there referred to. The acts of 1801 and 1827, can well stand together; each of them have separate and distinct objects. The act of 1801, bas in view the protection of the public from being deceived by the appearance of property, which possession always indicates, and making that property liable for debts, when possessed more than five years, unless the public are informed by registration, of the loan. |