Jones' Adm'r v. Shaddock

A. J. WALKER, C. J. There can be no doubt, that the conveyance by John Herndon to Martha Shaddock was upon a valid trust, and that Hugh Jones took the title to the slave Dick with full knowledge of that trust. This trust was properly enforced against Jones.—Bishop v. Bishop, 13 Ala. 475. Jones, having converted Dick to his use, in violation of the trust, was chargeable as a trustee in reference to such slave; and his administrator was also chargeable with the hire of the slave, from the date of the conveyance to said Jones. [2.] We have had more difficulty with the question as to the other two slaves, Wash and Turner. Dick, being permitted to go at large, and act as a freeman, acquired money with which to purchase these slaves, Wash and Turner. He purchased and paid for Turner, and took a title in the name of the defendant’s intestate, who held the title also to Dick. He purchased Wash, at the price of five hundred dollars, from the defendant’s intestate, and paid for him ; but a bill of sale was not made. The acquisitions of slaves, even though made with the owner’s consent, belong to their owners, who may assert their rights thereto; but the owners can not assert their claims to such acquisitions after they have been disposed of by the slaves, and passed from such slaves.—Shanklin v. Johnson, 9 Ala. 271; Devaughn v. Heath, 37 Ala. 595; Webb v. Kelly, 37 Ala. 333; Martin v. Reed, 37 Ala. 198 ; Stanley v. Nelson, 28 Ala. 514; Carmille v. Carmille, 2 McMullan, 454; Broadhead v. Jones, 39 Ala. 96. The owner may, or may not, at his option, assert his title to his slave’s acquisitions. We are not prepared to [266] hold, that a trustee is bound to exact for his cestui que trust the acquisitions of a slave, which slave is the subject of the trust. We do not think that Jones, the defendant’s intestate, was bound to appropriate the acquisitions of the slave Dick to the benefit of the trust, or was liable for neglecting to do so. We would not decide that the mere neglect to assert a title to Turner would, of itself, be a ground of liability in the trustee. We think the trustee could exempt himself from accountability for Dick’s acquisitions, by forbearing to assert any ownership over them. Jones, the defendant’s intestate, did not, until he sold the slaves, assert any title to the earnings of Dick, or title to Turner, who was bought by Dick, or to Turner’s earnings. We decide, that the court erred in charging the defendant on account of the earnings of any of the slaves, not claimed by him. While we decide that the involuntary trustee was not bound to claim for the trust the earnings of the slaves, yet he could claim them, and, if he did so, his claim must be held to be for the benefit of the trust. A trustee could not take any property, by virtue of a title which the law deems to be in him as trustee, except for the benefit of the trust. In 1857, Jones, the trustee, asserted his title to Dick and Turner, the latter being a slave bought by Dick. He not only asserted his title to them, but transferred them to one Thomason, for a consideration specified in the pleadings. His duty as trustee was to hold the slaves, after he asserted his title, for the benefit of the trust. In not doing so, and in transferring the slaves to be carried out of the county, he was guilty of a wrongful conversion, as against the cestuis que trust, and is chargeable with the value of these slaves at that time. [3.] The slave Wash belonged to Jones. Dick paid Jones five hundred dollars for this slave. We concur with the chancellor in the opinion, that the title to Wash did not pass out of Jones by this transaction. The point seems to be so decided in the case of Webb v. Kelly, 37 Ala. 333. But the five hundred dollars, the fruit of Dick’s earnings, received by Jones, must be clothed with the same trust as was the slave Dick. The trustee could not receive the [267] earnings of the slave, freed from the trust. We think the chancellor correctly held the defendant liable for the five hundred dollars received by Jones from Dick, and refused to make him liable for the value of Wash. The chancellor ought to have rendered a decree to the effect following: that an account should be taken, charging tire defendant — 1st, with the reasonable annual hire of the slave Dick, from the date of the purchase by the defendant’s intestate, to the sale by him, and also with -interest on such annual hire; 2d, with the value of the slaves Dick and Turner, at the time of the sale of them by defendant’s intestate, and interest on such value; 3d, with the sum of five hundred dollars, and interest thereon, from the time of its payment by Dick to defendant’s intestate. We deem it prudent not to render a decree ourselves, because the defendant Jones died after the decree in the court below, and it may be that the condition of his estate may require some special order. Reversed and remanded. Byrd, J., not sitting.