TERM, 1852.] Trustees R. E. Bank vs. Watson & Hubbard. sonal property. (See Fowler v. Anderson, 3 Eng. Rep. 388, and Whiting & Slark v. Beebe and others, decided at the last term of this court.) This being true, the instant the levy is made, the judgment, in contemplation of law is satisfied, and will be so regarded until such levy is disposed of by sale or otherwise. If the judgment is satisfied by the levy of the fi. fa., and the lien of the judgment is not thereby kept up and extended to the day of sale, it would present a strange state of case, as the party could not take out another fi. fa., neither could he revive the judgment by scire facias, nor maintain an action upon such judgment. By having sued out his execution and levied it before the expiration of the lien, but having failed to sell within that time, he would be left utterly remediless upon his judgment. But we are here met by the argument that it is conceded, that when he has made his levy before the expiration of the lien, but has not actually sold the property, that he may do so afterwards, but in that case he cannot claim the benefit of his judgment lien, but that he is confined to that which attaches upon the delivery of the writ to the officer. Let us examine this position, and see what it might lead to in its practical operation. A party has a valid subsisting judgment against an individual, and in order to avail himself of his judgment lien, he sues out execution and has it levied upon the lands of his debtor, eighteen months before the expiration of three years from the rendition of his judgment, but from the operation of numerous causes, over which he can have no control, such as injunctions, restricting orders, failure of the courts, &c., he is not enabled to effect a sale under his fi. fa. until after the lapse of that time. Is he, under such circumstances, to lose the benefit of his judgment lien? Such cannot be the construction of the law. It is perfectly reasonable that the plaintiff in the execution in the State of New York, should be required actually to sell within the limitation, because that the judgment was a quasi execution, as by force of it the property was seized and appropriated, and consequently, the sale had to take place, if at all, so as to save the benefit of such lien, during the life time of such quasi execution. The case, however, is Maulding et al. vs. Scott et al. [JANUARY very different here. The judgment creditor procures his execution to be levied in ample time to have a sale of the property in the established course of things, and without any fault of his, he is prevented from consummating his object until the lapse of the time prescribed by law for the continuance of his lien. To extend the lien of the judgment under such circumstances, where the execution is strictly prosecuted and followed up to a consummation of a sale of the property, we think would be fully warranted, by a reasonable and sensible construction of the statute. Any other construction would greatly endanger the right of creditors, and the one that we have adopted need not injure any one. The issuance and levy of an execution are public acts, of which every one may be informed, if such information shall be desired, and therefore it is, that no hardship can result from requiring the community to take notice of such acts, and to purchase such property at their peril. Entertaining these views upon the several questions herein involved, we think there is no error in the decree of the circuit court, and consequently, the same is in all things affirmed. MAULDING ET AL. VS. SCOTT ET AL. At the common law, there was no remainder to a chattel interest, and any gift or bequest of a chattel, no matter how short the time, passed the absolute property. But this rule of the common law has been modified, and now in case of a gift or bequest of a chattel to a person for life, remainder over to another, the remainder will be supported. Such life estate however must be clearly expressed, for it is an established rule that whatever will, directly or constructively constitute an estate in tail in lands, will pass an absolute estate in personal property. TERM, 1852.] Maulding et al. vs. Scott et al. In this case, the words of the bequest were: "I also bequeath to my daughter, Sucky Mills, my negro girl Cyntha, to be enjoyed by her during her life time, and then to descend to her lawful heirs, together with Cyntha's increase, should she have any:" HELD, That under this bequest, the slave vested absolutely in Sucky Mills, and, she being a married woman, passed to her husband eo instanti. Complainants having claimed the slave as heirs of Sucky Mills, and the case hav ing been heard upon an issue to such claim, they were not entitled to a decree as heirs of her husband, though the proof showed them to be such, the rule being that a decree must be founded on and sustained by both the allegations and the proof in a cause, and that it cannot be based on a fact not put in issue by the pleadings. Appeal from the Chancery side of Chicot Circuit Court. Scott and others brought their bill, as heirs of Susan Mills, in the Chicot Circuit Court, against Maulding and others, as heirs. of John W. Maulding. It alleges that, in 1826, in Kentucky, Thomas Humphreys, the father of Susan Mills, devised a negro girl named Cynthia, in the following words: "I also bequeath to my daughter, Sucky Mills, my negro girl Cynthy, to be enjoyed by her during her lifetime, and then to descend to her lawful heirs, together with Cynthy's children, should she have any." The bill further alleged that, on the death of Humphreys, the negro woman came into possession of Susan Mills and her husband, who, in 1830, removed to Arkansas, where, in 1833, the husband died, and where, after his death, his widow sold the negro to John W. Maulding. It also avers that Maulding knew of the tenure by which she held the negro, and paid a low price in consequence of it. The bill prayed a decree for the negro and a child about eleven years old, and an account and payment of hire. The answers showed that Maulding bought the negro for $500, paid in cash, and received from Mrs. Mills a bill of sale dated January 24, 1834, containing a warranty of title: and avers that he knew nothing of the defect in the title, and that the price was a fair one. The answers deny the alleged will and title under it. Decree for complainants, and appeal by defendants. PIKE & CUMMINS, for the appellants. Under the will in this case, Susan Mills took an absolute interest in the negroes, and not a .. Bll Maulding et al. vs. Scott et al. [ JANUARY life estate. Garth v. Baldwin, 2 Ves. Sr. 646. Atkinson v. Hutchinson, 3 P. Wms. 259. Beauclerk v. Dormer, 2 Atk. 314. Richards v. Bergavenny, 2 Vern. 324. Boding v. Lord Galevay, 2 Eden 297. Elton v. Eason, 19 Ves. 78. Browneker v. Bagot, 19 Ves. 574. Horne v. Lyeth, 4 Harr. & John. 341. Dott v. Cunnington, 1 Bay 453. Dott v. Wilson, 1 Bay 457. Stockton v. Martin, 2 Bay 471. Floyd v. Thompson, 4 Dev. & Batt. 488. Watts v. Clardy, 2 Flor. R. 369. As the negro became the absolute property of Susan Mills in her husband's life time, it vested absolutely in him; but the complainants do not show themselves to be heirs of her husband, and a decree must be founded on, and sustained by, the allegations and proof; and cannot be based on a fact not put in issue by the pleadings. (Carneal v. Banks, 10 Wend. 181. Gregory v. Power, 3 Litt. 339. Gres. on Ev. in Eq. 160, 161.) F. W. & P. TRAPNALL, for the appellees. It makes no difference whether Suckey Mills had a life estate or absolute title under the will of her father to the negro Cynthia and her children; the moment she came to possession, she became the property of the husband, Gaines ad. vs. Briggs, &c., 4 Eng. 46. Moody v. Walker, 3 Ark. 147. Eutaws v. Eutaws, 3 Marsh. 229. Pinkard v. Smith Rock, 3 Litt. 335. Hawkins v. Craig & wife, 6 Mon. 257. Wilkinson v. Perrin, 7 Mon. 216, and on the death of the husband the right passed to his administrator and heirs. Mr. Justice WALKER delivered the opinion of the Court. The complainants, as heirs of Susan Mills, filed their bill in chancery against the defendants, to recover a negro woman and child, which they claim as devisees of their grand father, Thomas Humphreys. They state that, by the will, the woman slave, Cynthia, was devised to their mother Susan Mills, to be enjoyed by her during her lifetime, and to her heirs after her death, and that she is dead leaving them her heirs. The clause of the will under which they claim the slave and her child, is in the following words: "I also bequeath to my daughter, Suckey Mills, my TERM, 1852.] Maulding et al. vs. Scott et al. negro girl Cynthia, to be enjoyed by her during her lifetime, and then to descend to her lawful heirs, together with Cynthia's increase, should she have any." At common law, there was no remainder to a chattel interest, and any gift or bequest of a chattel, no matter how short the time, passed the absolute property. This rule was gradully relaxed, and a distinction taken between a gift of the thing itself and of the use of the thing, the law attaching a validity to the latter, which it denied to the former. This modification of the common law rule in time also gave way to the rule, as we now understand it to exist, that whether the gift be of the thing itself for life, or only of the use of the thing, a limitation over to a subsequent devisee after the decease of the first taker, will be supported. Such life estate or use however must be clearly expressed; for it has been decided, with great unanimity, not only by the English and American courts, but also by this court, that whatever will directly or constructively constitute an estate in tail in lands, will pass an absolute estate in personal property. Chancellor Kent, in his Com., vol. 2, 352-3, says that "chattels or money may be limited over after a life interest, but not after a gift of the absolute property; nor can there be an estate tail in a chattel interest, for that would lead to a perpetuity, and no remainder over can be permitted on such a limitation. That it is a settled rule that the same words, which, under the English law, would create an estate tail as to freeholds, give the absolute property as to chattels." The words, "lawful heirs," "heirs of the body," &c., are the technical terms used in creating an estate in tail, and when used in executory devises in connexion with the other language employed, the important inquiry often is, whether they are to be taken as words of purchase, giving to the person thereby designated an estate to commence in possession at the death of the devisee for life, or whether they are to be taken as words of limitation attaching to the previous estate, and enlarging it from an estate for life to an estate tail, which would give to the first devisee the absolute property. If the word "heirs," or "heirs of the |