Zollikoffer v. Briggs, Lacoste & Co.

Bullard, J. delivered the opinion of the court. The plaintiff alleges that he is the owner of two slaves, Sam and Eps, having brought them to the State of Mississippi in September, 1836, with good and sufficient titles. That in Fe522 1837, he agreed to sell them conditionally, to Angus Clark and Archibald Clark. That at the time of delivering sa^ s^aves> the Clarks executed a written agreement by which they bound themselves to deliver to him an accepted draft On some gbod solvent commission 'merchant, for about $3100, whereupon the petitioner -was to make a good and valid bill of sale for said slaves, but in the failure to furnish the draft, the two slaves were to be delivered back to the petitioner. He alleges that the draft was never given, and no bill of sale ever, executed. The petitioner further alleges, that on the 10th of January, 1839, the Clarks, at the request of the petitioner, delivered into his possession the said slaves JEps and Sam, and that he innocently and ignorantly destroyed the aforesaid written agreement, and in the hope and belief of confirming to himself fhe’title to the aforesaid slaves, he obtained from the Clarks a bill of sale of 'the two slaves. That on the delivery óf the slaves to him, on the 10th of Jahuary, 1839, he brought the slaves to the parish of Concordia, and put them upon, á cotton plantation which he had rented. That afterwards he employed Angus Clark as overseer upon said plantation. He further represents that he has a lien or mortgage on a slave named Manuel, by virtue of a deed of trust executed in the State of Mississippi, on the 21st February, 1837, between Angus Clark, Archibald Clark and his wife, of the first part, John Stewart of the second part, as 'trustee, and 'the petitioner duly acknowledged before a justice of thé peace and recorded in the office of the Probate Court. That the deed of trust was made to secure the payment of a promissory note for $6450, dated February 21, 1837, and payable on the first of November following, to the petitioner, which note is yet in his possession, and a great part of it yet unpaid. That on the same 10th of January, 1839, the Clarks delivered to him the negro Manuel, and that he removed him to the parish of Con-cordia with the others, that they remained in his possession on the plantation rented by him, from the time of their removal until March, 1840. He further -represents, that notwithstand>- [523] ing the premises, the sheriff of the parish of Concordia had' seized and taken into his possession the said slaves, by virtue of a writ of attachment at the suit of Briggs, Lacoste & Co., against Angus Clark, and also on an order of seizure and sale. He therefore prays an injunction, which was accordingly granted. The defendants deny these allegations, and pray the dissolution of the injunction to stay proceedings on their judgment against Clark, and'for damages, A slave Reid by a deed of trust or mortgage .which is not recorded in this State, to which the slave is removed, is liable to seizure by a creditor of the ori-. ginal owner.. It appears that the defendants have-a judgment which they recovered in the State of'Mississippi, against Archibald and Angus Clark, and others, u-pon which they took out executory process here, and it was levied upon the three slaves in question. The only inquiry therefore is, whether Clark had such an interest in the slaves as could be seized' in,, execution,. With respect to the slave Manuel, the plaintiff does not, allege in his petition that he is the owners but only that he has alien or mortgage by deed' of'trust executed in Mississippi. It is not shown, nor even- alleged' that the evidence of this lien has ever been recorded in, this State. Without suph registry we have uniformly held, it cannot have effeqt in- this State, against creditors. 8 Martin N. S. 222; 4 La. Rep. 42; 6 Idem 401. The condition of the other- two, Eps and Sam, is,left rather equivocal by the evidence in the record. Archibald Clark was examined as a witness, and acknowledged that some of-the slaves, at least which he had conveyed to Zollikoffer, were conveyed for the purpose of' covering them from the pursuits of creditors, and particularly these- defendants. The plaintiff alleges that he had sold those two slaves, but that not being paid for them, they were given back, and a written conveyance executed to him by the Clarks, and that deed is in the record, bearing date January 16, 1839. The evidence, and particularly the testimony of Archibald Clark shows that these, two slaves in common with several more, were subject to.be-redeemed on the payment of the debt fo-r which they were conveyed, about $10,000; and that, a considerable part has. [524] been paid. It is certain they were employed by one of the 0jarjj.s jn raisjng a crop, the proceeds of which went to redeem the slaves, and in that way between five and six thousand dol- . lars were paid. It appears to us therefore, that Clark, the ju¿gment debtor, had such an interest in these slaves as might be attached or seized by his creditors. The equity of redemption in the slaves is clearly a property belonging to Clark which his creditors might seize, although Zollikoffer could not be disturbed in his possession until the slaves were entirely redeemed by a repayment of the price. It is therefore ordered, adjudged and decreed, that the judgment of the District Court so far as it relates to the slave Manuel, be avoided and reversed and the injunction dissolved: and that as to the two slaves, Eps and Sam, the injunction be maintained, and the said slaves be restored to the plaintiff’s possession, without prejudice to the right of the defendants to seize the equity of redemption in said slaves, belonging to Clark, and that the defendants pay the costs of this appeal.