#### ISAAC EDWARDS vs. ALVIN BENNETT & AL.

On a petition for the partition of slaves, when the defendant denies the petitioner’s right and Insists that he (the defendant) is entitled to the slaves; in severalty, it is not necessary for the petitioner, as in the ease of a petition for the partition ofland, to establish his right at law, before the relief he seeks can be granted. The Court, in which the petition is filed,, must decide the question of right.

Appeal from the Superior Court of Law of Chatham, County, at the Fall Term 1849, his Honor Judge Settle presiding.

The petitioner alleges, that he is the owner of one-half of certain slaves, a tenant in common with the defendants, and prays for a decree of sale in order to. effect a division. The defendants deny the title of the petitioner, and allege, that one- of the defendants is the owner of the slaves in severalty and has the exclusive possession,. They admit, that in August 1841, they executed an instrument to the petitioner and one Riggsbee, purporting to be a conveyance, or, more properly, a covenant for a. conveyance of the slaves, but aver, that it was obtained, by “fraud and deception and without consideration, and is, therefore, void.”' They also, insist, that Riggsbee is a necessary party.

At August Term 1845, of the County Court of Chatham,, the following issue was submitted to, a jury “Is the petitioner the owner of one half of the slaves, Judy, &c., or not 1” The jury found the petitioner is the owner of one-half of the slaves. Whereupon, the Court made a decree-for a division, and the defendants appealed.

At Fall Term 1849, of the Superior Court, the petition was dismissed on motion of the defendants, and the petitioner appealed.

*362In the case sent to this Court, it is stated, “that, by the admission of the parties, the defendants before and on the 9th of August, 18-11. were the owners of the slaves : that on that day they executed under their hands and seals an instrument, which has been duly proven and registered; in these words:

“North Carolina, )

“Chatham County. $

“Know all men by these presents that. I, Alvin Bennett, and Winniford Bennett in Co. with Alvin Bennett of the County of Chatham and State aforesaid, for and in consideration of one hundred and fifty seven dollars in hand paid by the said Isaac Edwards and Thomas Riggsbee Co. with him the said Isaac Edwards, the receipt is hereby acknowledged by both of the sum of one hundred and fifty seven dollars, and our note of ninety dollars on demand, have granted, bargained and sold, and conveyed unto Isaac Edwards and Thomas Riggsbee, three negro slaves, Judy, Eliza and Harrison, we sell and confirm unto Isaac Edwards and Thomas Riggsbee, one half of these above named negroes at public sale or valued by two good men, aged about thirty Judy, Eliza aged three years old, Harrison aged about eleven months old, to have and to hold from any claim or claims whatever, free and fully discharged from any incumbrances that may accrue hereafter, we Alvin Bennett and Winniford Bennett, doth warrant and defend the title of said negroes, half of them to be good and from any lawful claim whatever may accrue. In testimony whereof, we, Alvin Bennett and Winniford Bennett, have hereunto set our hands and seals above mentioned, signed sealed and delivered, this the 9th day of August 1841.”

It is also admitted, that before the filing of the petition, Riggsbee assigned all of his interest to the petitioner.

Graham, for the plaintiff.

Kerr and W. 11. Haywood, for the defendant.

*363Pearson, J.

It is not stated, upon what ground the petition was dismissed. The objection for the want of parties was met by the assignment of Riggsbee. The objection, that the deed was void, “being obtained by fraud and deception,” without consideration, (supposing a gen.eral allegation of the kind, sufficient to raise an objection,) is not supported ; for, the case states no evidence in re» ference to it. The only remaining objection is, as to the effect of the deed of the 9th of August 1811. We presume his Honor was of opinion, that the deed was too vague and uncertain to have any operation, or that it was a mere covenant to convey, and therefore the petitioner had no title.

We do not concur in this opinion. The legal effect of the deed was to pass one half of the slaves. It has proper parties, a consideration, a subject sufficiently certain, and uses apt words of conveyance and apt words of warranty. The only confusion is made by the introduction of the words: “at public sale or valued by two good men.” These words, if unmeaning, are to be rejected as surplusage, “ut res magis valeat,” 4'c- The sense is not changed by striking them out. It is probable, (if a conjecture may be hazarded.) that it was an attempt to provide a mode of division without the expense of legal proceedings ; but however that may be, a proper construction of the deed vests the title to one half of the slaves in the petitioner, and he has a right to a division.

It was insisted in the argument, that upou a petition for partition of slaves, if the defendant denies that the petitioner is a tenant in common, and sets up a title in himself in severalty, and an exclusive property, the petition cannot be maintained. The case, as made up, does not present this question, but as the question is one of practical importance it is proper to give our opinion. In a bill .for partition of land, if the defendant denies the title of the plaintiff, and sets up ail adverse possession and *364title in himself in severalty, the Court will not proceed until the plaintiff establishes his title by an action of ejectment, as a tenant in common may bring ejectment against his co-tenant, when there is an actual ouster, and such denial and claim set up in the answer is taken to be an actual ouster. But a tenant in common of slaves' cannot maintain an action at law against his co-tenant,, unless the property is destroyed or carried out of the country. And, if the rule as to land be applied to slaves,, there would be no remedy, whenever the defendant denies the tenancy in common. “Where there is a right there must be a remedy and ex necessitate, the Court, in which the petition is filed, upon an adverse title in severalty being set up, must try the title. This is a necessary consequence, in order to give effect to the act providing for the partition of slaves or other chattel property. Rev Stat ch. 85, sec. 18. We think the mode adopted by the County Court was a proper one to- try the title,.

It was further objected, that the petition, has no prayer for process. Supposing a formal prayer necessary in a proceeding of this kind, it has been waived by the ap^ pearance and answer of the defendants.

The decree below must be reversed and the plaintiff declared to be entitled to partition. And as it does not appear, whether there is a necessity for a sale or not for-the purpose of making partition, it is deemed most convenient to the parties to remit the cause, so that the partition made be made under the direction of the Court below.

Per Curiam.

Ordered accordingly