#### A. M. BOGLE et al v. N. C. RAIL ROAD CO.

3?lie remainderman of an estate in a slave, is not entitled to sue on a contract made by the tenant for life, with a hirer, for the protection of the slave’s life, he being no privy thereto, and no part of the consideration having moved from him.

Action of assumpsit, tried before Bailey, J., at file last Term of Bo wan Superior Court.

The plaintiff was the tenant in remainder of the slave, Alfred, in whom Mrs. Jane C. Knox had an estate for her life. The slave was killed under the circumstances detailed in the preceding case, (Knox v. JV C. Rail Road Go., ante 415,) and the plaintiff to recover for the injury done to his remain--der, brought this action, and declared on the contract stated therein. The defendant’s counsel contended that the remain-derman had no interest in the contract made by the tenant for life, and could not recover thereon. His Honor was of that opinion, and the plaintiff took a nonsuit and appealed.

Fleming and Clement, for the plaintiffs.

Jones and Boydm, for the defendant.

PeaRSon, C. J.

Case is the proper action by one owning an estate in remainder in a chattel which is destroyed or permanently injured by the wrongful act of a third person, or of the particular tenant, or of one claiming under him.

Mrs. Knox had a right to hire the slave to the defendant, and as there is no allegation of neglect, the plaintiffs have no cause of action; for there is no wrongful act unless they are entitled to the benefit of the special stipulations in the contract of hiring. It is admitted that they are not parties to the contract, and no part of the consideration moved from them-; but it is insisted that a tenant, for life, is a trustee, or quasi trustee for the remainderman, and by reason of this relation and the privity of estate, a contract made by the 'one, will enure to the benefit of the other.

Test this question in this way ; suppose the tenant for life, •dies before the expiration of the year, for which the slave was *420hired, are the remaindermen bound to let the bailee have him for the rest of the year ? or may they not forthwith take him into possession % treating the contract as of no force in respect to them ? Certainly they can take the slave. If a tenant, for life, of land, make a lease for years and dies, the term for years is so utterly void, as not even to be capable-of confirmation by the remainderman. It follows, that as the contract does not bind them, they can have no benefit under it for the want of mutuality, which is of the essence of all contracts.

The position that a tenant, for life, is a trustee, or gtiasi trustee for the remainderman, is not tenable. The estate is divided into two parts, but each holds the legal title of their respective parts in severalty for their own use, and there is no separation of the legal from the beneficial estate in respect to either part, and without this separation, so that one may hold the legal estate for the benefit of another, the idea of a trust is out of the question. It is true, that the possession of the particular tenant is congtable (as Ooee terms it) with the estate in remainder ; that is, their position is not that of adversaries. They are privies in estate — claim under the same conveyance, and neither is allowed to dispute the title of the other. Hence, it follows, that if one procures a stranger to execute a release of right, it operates “ by way of extinguishment,” and enures to the benefit of the other. But it is obvious, that this principle does not extend to a oonirraob made by one in respect to his part, to which the other is not a party, and by which ho is not bound, there being no confirmation ; for the benefit of the contract may be enjoyed exclusively by the party making it without disputing the title of the other, which is in no wise involved, whereas, in the case of a release, the party who buys in the out-standing right, cannot enjoy the exclusive benefit of it without prejudice to his privy in estate, and to prevent this, the right is considered as extinguished, whereby the other incidentally gets the benefit of the release. Note the diversity. There is no error.

Per CuriaM, Judgment affirmed.