Wood & Whitaker v. Tompkins

By the Court. McDonald, J., delivering the opinion. We think that the court below committed no error in respect to the matters on which error is assigned in the record before us. 1. If the allegations in the bill are true, which must be assumed on a motion to dismiss it for the want of equity, there is not the slightest ground on which such a motion ought ;to be sustained. The complainant alleges that pending an action of trover which had been instituted against one Charles Foster for the recovery of a number of negroes, and in which causehhe said Foster entered an appeal and complainant became his security on the appeal bond, the defendants to said bill in the court below, Wood and Whitaker, with a full knowledge of the pendency of said suit for the recovery of the negroes and their hire, and that complainant had become his security on the appeal, contriving to appropriate the hire and use of said negroes to themselves, and to defraud and injure the complainant, colluded and combined to that end, and entered into a written agreement with the said Foster by which, in consideration that they would become securities for the said Foster for the forthcoming of the said negroes to answer the judgment in said action of trover, they, the said Wood and Whitaker, should have the hire of said negroes. [163] The bill alleges the payment of the hire of the negroes by complainant as surety of-Foster, and that long before the rendition of the judgment in the action of trover the said Foster had been, aside from the property sued for in said action of trover, utterly and notoriously insolvent, and soon after fled the country. The bill required the defendants to account for the hire of the negroes. Now there can be no question if Foster was insolvent, or I will say, tending to insolvency, when he made the agreement with "Wood and Whitaker to take the hire of the identical negroes sued for in the action of trover, under a combination and collusion with each other to defraud the complainant, he has a right to have an account from them. The complainant was already the security of Foster, at the time of the agreement and delivery of the negroes to Wood and Whitaker, and was liable to have his property seiz'ed and sold as soon as an execution could be issued upon a judgment which might be recovered against Foster for the negroes and their hire. Why did he not deliver the property to the complainant, his first surety, for his indemnity ? The bill says it was his object to defraud him. We think that there is much equity in the bill, and that the motion to dismiss ought not to have prevailed. 2. The court ought not to have given in chai-ge to the jury the instructions asked by the counsel for plaintiffs in error. Foster could not, by agreement with other persons, impair the rights and remedies of his security on the appeal, if the parties contracted with knew his rights. Notice of them would place them precisely in Foster’s place. But, on another principle, the defendant in error had a right to have an account from "them. At the time they entered into the agreement with Foster, the plaintiffs knew, necessarily, that the negroes and their hire were sued for, and whether Foster was insolvent or not, as soon as they possessed themselves of the negroes and converted [164] them they were as much subject to an action of trover at the instance of the owner as Foster was, and the plaintiff’ had the same right to sue them, and recover and have satisfaction of such part of the judgement as was not paid by Foster, that they had to sue and recover and have satisfaction from Foster. By our statute the title of'property sued for and recovered does not vest in the defendant until the verdict is paid. Now, the property put in the possession of plaintiffs in error, and of which they received the profits for the time, was the property of Brooks, as administrator, and it was known to them at the time they received it, that suit was pending for its recovery. If Brooks, the administrator, had not obtained satisfaction from the defendant in error as tbe security of Foster, lie might, unquestionably, bavc recovered the hire from the plaintiffs in error, in the shape of damages for tbe time they had the negroes. As Foster is insolvent, and the security has paid a part of the judgment, he is entitled, in equity, to be subrogated to the rights of Brooks the administrator, against the plaintiffs in error, and that is to recover from them, to the extent of the value of the hire of the negroes for the time they held them, any part of the judgment which Foster or his effects have not paid. We think, therefore, that the court below must be sustained in his refusal to give in charge to the jury the request submitted in writing by the counsel. Judgment affirmed.