Lemon v. Wright

By the Court. Jenkins, J., delivering the opinion. The evidence shows that the plaintiff in error (who1 was also the plaintiff below) derived title to the mother of the — 323 — slave, the subject of this suit, from the defendant. The mother, Mary, and two elder children, were seized in the year 1840, under execution, by the sheriff of Jasper county, as the property of the defendant, sold, and purchased by one Rivers, the assignee of the execution. Rivers agreed with the defendant, to allow him or any friend of his, to redeem the slaves, thus sold, and permitted them to remain in defendant’s, possession. At the pressing solicitation of defendant and his wife (plaintiff’s sister), plaintiff purchased them of Rivers, still leaving open to defendant the privilege of redeeming them for the benefit of his wife and children, and suffering them to remain in defendant’s possession. This purchase, by plaintiff, was in 1841, and the price paid eight hundred dollars. The girl, Anna, now sued for, has been born since. Mary and her children had been in defendant’s possession, he expressing acts of ownership over them, since 1836 or 1837, and paying taxes for them, and generally considered the owner. During this interyal the debt for the satisfaction of which they were sold, was contracted. This was plaintiff’s title. The defendant pleaded the general issue, and the statute of limitations.- The latter plea seems to have been abandoned, and indeed it would be strange if it were insisted upon, under the evidence. Under the general issue, defendant has set up two- separate and distinct lines of defence — the one referring to matters anterior to the sheriff’s sale, at which Rivers, the vendor of plaintiff, purchased, denying that plaintiff ever had title; and the other, depending upon transactions subsequent to that sale — admitting that plaintiff acquired title, but subject to a conditional defeasance, which, he says, has become absolute. It becomes necessary to consider each of these defences. The first rests upon the fact that the woman, Mary, never was the property of defendant, but came to- his possession by virtue of a gift from the father of defendant, to- defendant’s wife and children. This is sought to be established by Joseph Wright, the father. He testifies that the woman, Mary, was his property, and that about the year 1836 or 1837, she went-from his possession to that of defendant, in trust, as a gift to- his wife and children, and not to him, defendant. He further says: “Í parted with the title to said negro verbally, when first sent to defendant’s house.” — 324 — Subsequently he says: “Defendant’s son, a little boy, came after her, and I sent her, as a gift, to defendant’s wife and children.” This, then, was the time and the occasion when he parted with the title; and the only representative of the other party to the gift, present at its consummation, was this little boy, a mere messenger, the servant of defendant, sent to fetch her. By this juvenile messenger she passed to the possession of defendant, who afterwards used and controlled her (as other witnesses testify) as his own, and as his, paid taxes for her. All outward, visible signs indicated to the world that she was his absolute property. There was no witness to the gift. The donor, himself, testifies to no- words used by him, constituting a trust in defendant. It doth not appear whether the gift was of a life estate to defendant’s wife, with remainder to her children, or to herself and her children then in life, as tenants in common. All is vague and uncertain, except the delivery, which was to the defendant* So the matter rested, to- the entire satisfaction of all parties, until 1839, two or three years after, when Anthony Dyer had sued defendant for a debt of several thousand dollars, and shortly before the rendition of judgment, which, when rendered, would bind the whole of defendant’s property. The defendant then drew a deed, purporting to be a conveyance of the slave,- Mary, and a child of Mary (doubtless born after the verbal gift), to the defendant, in trust for his wife and children. This deed, which is mainly relied upon on this branch of the case, to defeat plaintiff’s title, bears date, 19th September, 1839, and ^ie judgment under which Mary and two- children were afterwards sold, bears date in January, 1840. Counsel for defendant in error bestowed much argument upon this deed, and read many authorities to show that it was a valid conveyance to the wife and children, in trust, he talcing, no interest under it either by its terms, or by operation of law, in virtue of his marital rights. We deem it unnecessary to enter upon that investigation, believing the deed to be dehors the case. At the time of its execution, the pretended donor, as appears by his. own testimony, was without title, and, therefore, could convey none.' He swears that he “parted with the title to said negro when first sent,” which was. in 1836 or 1837. If he then parted with the title, somebody then acquired it. This branch of the defence must depend upon the verbal — 325 — gift. Scrutinizing the testimony touching that gift, we are constrained to hold, that it passed title to the defendant, to whom the delivery (which is the only part of the res gestae that is clear and unequivocal), was made. To allow the donor, by his testimony, after an interval of twenty-two^ or three years, when he had attained the age of four-score and five years, to engraft upon a parol gift, trusts, not declared at the time, so far as the evidence discloses, and never heard of until the danger became imminent that creditors, who doubtless trusted the defendant upon the strength of his visible property, would be to establish a most dangerous precedent — to invite men in failing circumstances to fraudulent devices — in prejudice of the rights of bona tide creditors. The defendant, himself, who has been the active agent in shaping the curious history of this property, during more than a quarter of a century, and who perfectly understood the character of the parol gift, knew, and felt, that it would be an unsafe reliance to wrest the property from the grasp of creditors, and therefore resorted to the expedient of procuring a written deed from his aged father. Our conclusion, from the evidence, is, that the title to Mary rested in the defendant when she went into his possession; that Rivers acquired a title to her and the two children sold with her, by purchase at sheriff’s sale; and that the plaintiff acquired title in them by purchase from Rivers. This brings us to the consideration of the second branch of the defence. It is contended that, at the time of plaintiff’s purchase, he agreed, whenever he should be reimbursed the price paid, with the interest thereon, to make some conveyance of the property for the benefit of the wife and children of defendant, and this is not denied. All this occurred in the year 1841. I leave out of view the conveyance fi> Wooten, and his reconveyance to plaintiff, both having been, by common consent, and nobody attaching any consequence to them, in the conduct of the case. Defendant maintains that plaintiff has been reimbursed his outlay, and the interest upon it; yet he does not pretend that one dollar in money has been paid to plaintiff. These are the facts relied upon to show that plaintiff has been reimbursed. From the year 1841, when plaintiff purchased, until 1853 — a period of twelve years — these slaves were permitted to remain in defendant’s possession, plaintiff deriv — 326 — ing no benefit from them, his outlay accumulating interest, and no part of it reimbursed. The question occurs here, how long, under this agreement, was he to remain unreimbursed, and dispossessed of the property? The ready answer would be, not beyond a reasonable time — for it would be a most convenient and desirable arrangement to the defendant to postpone him indefinitely. Then, was twelve years a reasonable time? This question will scarcely admit of a negative answer. At the expiration of the reasonable time, what was his legal right? To demand and recover the price paid, and interest upon it; or, in default of that, to terminate the defendant’s possession, and reduce the property to his own possession ? In 1853, failing to procure payment, he conveyed, in trust, for the benefit of his sister, defendant’s wife, two of the slaves; and to her daughter, Caroline, one of them. He took home with him two of them — no one disputing his right to do all this. But he leaves one of them, Anna, undisposed of by gift, and unreclaimed by himself — leaves her, as they had all been, for twelve years. Thus things remain until 1859 — six years longer — when plaintiff malíes of defendant, a demand for Anna, the subject of this suit, which is met by a refusal to deliver her, and this suit is instituted.- Defendant insists, first, that at the time plaintiff conveyed some of those slaves to his wife and 'child, in 1853, he received the two whom he took home, as a satisfaction of his claim for reimbursement, but the record contains no evidence that he did so. He then insists that they were, in value, a full reimbursement of his outlay and interest, and that he can claim no more. Evidence has been offered on both sides to show the value of these slaves, and the witnesses estimate their value very differently. But, in our opinion, this is no defence against the legal title of plaintiff — certainly none, in a Court of law. If resistance can be successfully made under these circumstances, to plaintiff’s title, it may not be by this defendant, nor in the forum from which this case comes to us. If reimbursement of the price he paid for the negroes, with interest accrued, was by his agreement to separate a defeasance of his title, then, in a Court of law, a party setting up such a defeasance must prove payment, or tender of the — 327 — money, or the explicit acceptance, by the plaintiff, of some value in lieu of it. None of these have been proven.' Again: this is not strictly a defeasance. Plaintiff’s agreement was, not that upon the payment of the money the negroes should become the property of defendant, who now resists his title, but that, upon such payment, he would, by some proper conveyance, secure the property to defendant’s wife and children. Even had he accepted the two as full reimbursement, he would be entitled to demand and recover the remainder from defendant, to the end that he might convey and deliver them in compliance with his agreement. We are clear that if, under the facts, of this case, any rights can be asserted against plaintiff’s title, they are mere equities, and can not be set up as a defence to this action at law. On the trial, the jury found for the defendant, and the plaintiff moved for a new trial on several grounds, viz.: That the Court erred in overruling his objection to the_ competency of Wooten as a witness — in refusing to allow plaintiff to prove the value of the slaves given by plaintiff to defendant’s wife, and to one of their children, in 1853 — and in the charge to the jury — and that the verdict was contrary to- law and evidence. The Court overruled the motion, and error is assigned upon the grounds of that motion. We have not sufficient data to determine the competency of Wooten as a. witness. He was doubtless incompetent, without a relinquishment of his interest. It' seems he did relinquish, but his relinquishment is not in the record, and without a view of it, we will not attempt to adjudicate its sufficiency. The pertinency of the evidence, showing the value of the slaves conveyed by plaintiff, in 1853, ^ not apparent to us, and we can not, therefore, see that the Court erred in rejecting it. The errors imputed to the Court and jury, appertain to the merits of the case, and it will be sufficiently apparent, from the view' we have taken of the case, that there was error in the charge and the verdict, and in what the error consisted, without more minute examination of the several grounds taken in the bill of exceptions. JUDGMENT. Whereupon, it is considered and adjudged by the Court, — 328 — that the judgment of the Court below be reversed, and a new trial be granted, on the ground that the verdict of the jury was contrary to law, and strongly and decidedly against the weight of evidence.