Thompson v. Peter. 12 W. have induced a reinstatement of it, had it been supposed to be discontinued by the omission to make an order in it at the term to which the subpoena was returnable. If, upon the ground of this omission, the mandamus should be awarded, it might be rendered useless by granting a new injunction. It ought to be granted if the case, as it now appears, shows that the plaintiff in equity is entitled to relief. We must suppose that, in the opinion of the * court, he is so entitled, or the injunction would have been [* 565 ] dissolved on motion. The continuance of the injunction is, in substance, equivalent to a renewal of it. Under these circumstances, some difference of opinion exists on the motion for a mandamus. Some of the judges think that it ought to be awarded; others are of opinion that as the injunction is still continued by the court, and as the judges, who have a right to give it force, have returned that it is in force, it ought not to be awarded. The motion is overruled. Rule discharged. THOMPSON V. PETER and JOHNS, Administrators de bonis non of Peter, deceased. 12 W. 565. A declaration by the personal representatives of the original debtor, deceased, that he had no funds to pay the debts of the testator, will not take the case out of the statute of limitations. ERROR to the circuit court for the District of Columbia. Jones, for the plaintiff. Key, for the defendants. MARSHALL, C. J., delivered the opinion of the court. This was a suit brought in September, 1822, on a prom- [567] ise alleged to have been made by the intestate of the defendant, who died in the year 1808. The defendant pleaded non assumpsit, and the statute of limitations, on which pleas issue was joined. By consent of parties a verdict was found for the plaintiff, subject to the opinion of the court, whether the evidence which is stated in a case made by the parties, be sufficient to be left to the jury as evidence of a subsequent acknowledgment, competent to take the case out of the statute of limitations. The court gave judgment for the defendants, which judgment is now before this court on a writ of error. The court is of opinion that the circuit court decided rightly. The original administrator, David Peter, did not acknowledge the debt, but said there were no funds in hand to pay the debts of the testator. Williamson v. Daniel. 12 W. This language might be used by a person not intending to give any validity to the claim, and ignorant of its real merits. The conversation with one of the present defendants, George Peter, was still further from being an acknowledgment. Had this even been a suit against the original debtor, these declarations would not have been sufficient to take the cause out of the statute. The cases cited from 8 C. 72, and 11 W. 209, are expressly in point. But this is not a suit against the original debtor. It is brought against his representative, who may have no personal knowledge of the transaction. Declarations against him have never been held to take the promise of a testator or intestate out of the act. Indeed, the contrary has been held. Judgment affirmed, with costs. WILLIAMSON and others, Appellants, v. DANIEL and others, Respondents. 12 W. 568. An absolute bequest of certain slaves to P. H. is qualified by a subsequent limitation over, that if either of the testator's grandchildren, P. H. or J. D. A., should die without a lawful heir of their bodies, that the other should heir its estate, which converted the previous estate into an estate tail; and there being no words in the will which restrained the dying without issue to the time of the death of the legatee, the limitation over was held to be on a contingency too remote. The rule of partus sequitur ventrem is universally followed, unless there be something in the terms of the instrument which disposes of the mother, separating the issue from her. APPEAL from the circuit court of Georgia. The controversy in this cause arose out of the following clauses in the will of James Daniel: "I lend my wife twenty-one negroes," naming them, and also certain lands, "during her natural life." And subsequently: "I give and bequeathe unto my granddaughter, Patsy Hendrick, three negroes, namely: Joe, Parker, and Willis. I also give her one half of the negroes I have lent my wife, to her and her heirs forever. I give and bequeathe unto my grandson, Jesse Daniel Austin, son of Betty Austin, one half of the negroes I have lent my wife, after the death of my wife, Nancy Daniel. Now my will is, that if either of my grandchildren, Patsy Hendrick or Jesse Daniel Austin, should die without a lawful heir of their bodies, that the other should heir its estate. Jesse Daniel Austin, (now called by special act Jesse Austin Daniel,) survived Patsy Hendrick; and after the death of Nancy Daniel, the widow of the testator, took into possession all the negroes bequeathed to her during her life. Patsy Hendrick died about the year 1805, intestate, and without heirs of her body, being at the time of her death an infant about nine years old, Newman v. Jackson. 12 W. leaving Robert Hendrick, her father, and Louisa Hendrick, her half-sister, by the father's side, now Louisa Gibbes, [569] one of the complainants, her next of kin. Robert Hendrick died in 1814, having first made his will, bequeathing his estate to the said Louisa, his daughter, and his wife Mary, now Mary Williamson, also a complainant. Some of the slaves, to wit, Sally and her children, were born in the lifetime of Nancy Daniel. The court below determined that the limitation over was too remote, and decreed one half the slaves to the representatives of Patsy Hendrick, the complainants. It is also decreed that the slaves, Sally and her children, did not belong to the estate of the tenant for life. The defendants appealed to this court. MARSHALL, C. J., delivered the opinion of the court. The first bequest to Patsy Hendrick would pass the slaves therein mentioned to her absolutely, were not this absolute estate qualified by the subsequent limitation over, if either of the testator's grandchildren, Patsy Hendrick, or Jesse Daniel Austin, should die without a lawful heir of their bodies, that the other should heir its estate. We think these words convert the absolute estate previously given, into an estate tail; and, if so, since slaves are personal property, the limitation over is too remote. There are no words in the will which restrain the dying without issue to the time of the death of the legatee. The remainder over is to take effect whenever either of the immediate legatees should die without a lawful heir of his or her body. The gift in remainder is a gift of the stock, and is limited over on a contingency too remote to be allowed by the policy of the law. *The second point is, we believe, well settled. The issue is, [* 570 ] we believe, universally considered as following the mother, unless they be separated from each other by the terms of the instrument which disposes of the mother. Decree affirmed, with costs. NEWMAN, Plaintiff in Error, v. JACKSON, Defendant in Error. 12 W. 570. No particular form of notice of a sale under a deed of trust is prescribed by law; it is sufficient if the description of the land is reasonably certain, so as to inform the public of the property to be sold, Newman v. Jackson. 12 W. THIS cause was argued by Key, for the plaintiff in error, and by Swann, for the defendant in error. TRIMBLE, J., delivered the opinion of the court. This was an action of ejectment, brought to recover lot No. 99, in Threlkeld's addition to Georgetown, with the improvements thereon, fronting 60 feet on Fayette street, and 120 feet on Second street. The plaintiff in error was tenant in possession of the premises, appeared to the action, and, upon entering into the common consent rule, was admitted to defend, and pleaded not guilty, upon which issue was joined. Upon the trial in the court below the plaintiff gave in evidence a deed from John W. Bronaugh to Thomas G. Moncure, conveying to him in trust, for the payment of certain enumerated creditors: "A lot on Fayette street, and Second street, in Georgetown, fronting 60 feet on Fayette street, and 120 feet on Second street, with the [* 571 ] buildings, * improvements, and privileges," in trust, to secure the payment of the enumerated debts within thirty days; and, if not then paid, the property conveyed in trust to be sold, "after a week's notice in the Messenger," &c. The plaintiff gave in evidence the notice published in the Messenger, under and in pursuance of which the property was sold at public auction, in these words, to wit: "By virtue of a deed of trust to the subscriber, for the securing certain moneys therein mentioned, wil be exposed to public sale, on Thursday, the 4th of March next, for ready money, the following described property, namely, lot No. 99, in Peter, Beatty, Threlkeld, and Deakins's addition to Georgetown, fronting 60 feet on Fayette street, and 120 feet on Second street, with a two story brick dwelling-house, in excellent repair thereon. The sale to take place on the premises. "THOMAS G. MONCURE, Trustee. "The above sale postponed until the 4th day of May next, when it will certainly take place. March 24, 1819." The plaintiff proved that the lot conveyed by the deed of trust had been sold on the premises, at public auction, by Moncure, the trustee, on the day mentioned in the notice, and that Jackson became the highest bidder and purchaser; and the plaintiff gave in evidence the deed of conveyance made by the trustee to Jackson, for lot No. 99, &c., in pursuance of the public sale. It was proved that the plaintiff in error had entered upon the premises as tenant to John W. Bronaugh, and that he was in possession at the commencement ɔf the suit; and the town plats were also given in evidence. Newman v. Jackson. 12 W. A verdict was taken for the plaintiff, subject to the opinion of the court, as to the law arising upon the case, and the court below thereupon gave judgment for the plaintiff in that court. It is contended for the plaintiff in error that the judgment of the court below is erroneous, and should be reversed : *1. Because no valid sale could be made of the premises [* 572 ] in question without the aid of a court of equity. 2. Because the trustee's "proceedings were irregular, and no title passed to the appellee, by Moncure's deed of the 14th of June, 1819." We do not think there is any thing in the first ground assumed by the counsel for the plaintiff in error. Whether the conveyance from Bronaugh to Moncure be regarded as a mortgage, as contended for by the counsel, or as a deed of trust, in the usual and technical sense of the term, there can be no doubt it vested in Moncure the legal title to the premises; and his conveyance of the premises by deed to the appellee, if regularly made, must necessarily be regarded in a court of law as investing the appellee with the legal title. How the matter might be regarded by a court of equity is not for this court here to say. But it is perfectly clear that the conveyance of the trustee was a sufficient title at law to enable his alienee to recover in the action of ejectment, unless the second objection is maintainable. The second ground of argument proceeds upon an objection to the notice of sale. It turns out, upon an inspection of the town plats, that the premises in question do not lie in "Peter, Beatty, Threlkeld, and Deakins's addition to Georgetown," as described in the notice, but in "Threlkeld's" addition to Georgetown. And this mistake in the description of the premises, it is insisted, wholly vitiates the notice, and must render the sale made under it void. We think the objection ought not to be sustained. The law has prescribed no particular form for a notice of this description. It is sufficient if, upon the whole matter, it appears calculated reasonably to apprise the public of the property intended to be sold. We think the notice sufficient for that purpose, notwithstanding the inaccuracy of describing the property as being in "Peter, Beatty, Threlkeld, and Deakins's addition," instead of "Threlkeld's addition." It could not mislead those who did not know the precise limits of these respective additions, and they were, to those who might wish to purchase, of so little consequence as scarcely to form a subject of inquiry. That part of the description, all must have known, did not and could not point out the particular lot intended to be sold. That [ 573 ] could only be arrived at by the more certain and specific description of its locality; namely, "lot No. 99, fronting 60 feet on Fayette street, and 120 on Second street." To those who knew |