Shirley v. Fearne

Handy, J., delivered the opinion of the court. This case comes up upon several bills of exception taken to the [664] rulings of the court below upon questions of evidence raised on the trial. Before we proceed to consider these questions, it is necessary to dispose of a preliminary ground of error, insisted on in behalf of the appellants. It is objected that the record does not show that the plaintiffs’ demurrer to the original answer of the defendant, was disposed of; and that it was error to proceed to the trial of the case, upon the issues of fact, without a decision upon the demurrer. It appears by the record, that the original answer was filed at October Term, 1862, and at the same term, that a demurrer thereto was filed. At the same term, which was continued until December, 1852, the defendant obtained leave to file additional answers within sixty days, and accordingly filed, what is described as an amended answer. That answer meets all the objections and deficiencies in the original answer, as set forth in the demurrer, and its contents and the circumstances of the case, justify the presumption that the demurrer was admitted to be well taken, and that this amended answer was considered as filed to meet the objections therein stated. Under such circumstances, we do not think that it could be justly held that the demurrer was not disposed of. We will proceed to consider the questions raised by the several bills of exception. The first exception was taken to the exclusion of a deed of trust, purporting to be executed by Samuel B. Marsh and Leigh, Maddox & Co., to Shattuck and Caruthers, as trustees; and this presents the question, whether this deed was sufficiently acknowledged and proved by the grantors, to admit it to registration. The execution of the deed, by Marsh, appears to be attested by two subscribing witnesses, but the proof of the execution is made by the affidavit of only one of them. And that, it is insisted, is insufficient. But it is held, in the case of Wilkins v. Wells, 9 S. & M. 325, that one subscribing witness to the execution of a deed is sufficient; and if that be true, it is difficult to perceive how the proof of execution by one of the subscribing witnesses, where there are two, should not be sufficient. For the other may be regarded as supernumerary. This was therefore, not sufficient to exclude the deed. [665] The deed was signed, and purported to be executed by Leigh, Maddox & Oo. It was acknowledged by “James S. Ewing, one of the firm of Leigh, Maddox & Co., as his act and deed, and the act and deed of said firm;” and the objection against it is, that it was not shown to have been either executed or acknowledged by the members of the firm. In answer to this, it is said that the execution by one partner would bind the firm if he had authority to make the deed at the time, or if it was subsequently ratified by his copartners. But no authority or subsequent adoption was shown in this case, and it cannot be presumed to exist. If there was proof of any such state of facts, it should have been adduced' when the deed was offered, and in the absence of such proof, or at least of any notice that it would be adduced^ the deed was inadmissible. But it is said that the deed was sufficiently executed by Marsh, one of the grantors, and that it should therefore have been admitted in evidence, as his deed. This is true, if the deed had been offered as evidence of the conveyance of the interest of Marsh only. But such was not the object of the evidence. The property, mentioned in the deed, is shown thereby to have been the joint property of Marsh, and Leigh, Maddox & Co.; and the deed could have been introduced for no other purpose, so far as the record shows, than to show a conveyance of the title to trustees for the benefit of Mrs. Shirley and her children; and if the deed was ineffectual as to one of the grantors, it could not operate as a conveyance of the title purporting to be conveyed. The second exception was taken to the admission of a transcript of the record of the proceedings and judgment of the Circuit Court of the United States, in this State, on a trial of the right of property, in the slave in controversy in this case, in which Martin, Pleasants & Co. were plaintiffs, and John G. Harris, trustee for Mrs. Shirley and her children, was claimant, in which it was decided that the slave was the property of James Shirley, and liable to the execution of Martin, Pleasants & Co. against him, which was levied on the slave, and which gave rise to that suit. This transcript also contained the execution issued on the judgment rendered on that trial, and under which the defendant here, purchased the slave. [666] This record was offered to show, that in the same suit under which the defendant in this action derived his title, the title to the slave had been adjudged against these plaintiffs. It is now insisted that it was improperly admitted for several reasons. First. It is said that the appointment of the trustee who set up the claim, was void, for want of proper parties, and, therefore, that the judgment thereon was no evidence against the plaintiffs. But this record shows nothing, with respect to the manner in which the trustee was appointed, and the presumption is that he was properly •clothed with the powers of a trustee. Secondly. It is said that the defendant here was not a party to that suit. But he claims title in virtue of it, and it ds surely not necessary, that a person who claims title to property under a judgment or execution against certain defendants, should have been a party to the suit, in order to enable him to show, in an action for the same property between those defendants and himself, the judgment or execution under which he claims, and by which their title has been adjudicated. The judgment is conclusive of the title of the parties against whom it is rendered, whenever the title has been the subject-matter of the suit, and has been adjudicated. Thirdly. It is said that the defendant acquired no title under the distringas by virtue of which the slave was sold. If that be true, it is not a sufficient objection to the admission of the record of the judgment and distringas, which appear in the transcript offered in evidence; for though the defendant may not have acquired any title by his purchase under that writ, yet it was competent for him to show by the judgment that the title to the>slave had been adjudged against the plaintiffs. And if the sale was illegal, it was competent to show by the distringas that the legal title was still in the marshal, and thereby show that the plaintiffs were not entitled to recover. This objection therefore, if it have any force, goes rather to the legal effect of this evidence, than to its admissibility. And we think that it was properly admitted. An exception was also taken to the admission of the testimony of the witness, Judge Yerger. The purport of this testimony was, that the present plaintiffs were represented in the trial of the right of property above mentioned, by James Shirley, who then [667] stated that he was representing the interests of his wife and children. This was competent, for the purpose of showing that the parties in interest in that suit, were the same as the plaintiffs in this, and that their title to the property is concluded by that judgment, and cannot again be litigated by them against one claiming title under that judgment. The last exception taken was to the exclusion of the deposition of William II. Brown, clerk of the United States Court, which was offered to prove that there was no proper record of the original judgment, upon which the execution was issued, which gave rise to the trial of the right of property above mentioned. The deposition was offered to invalidate the transcript of the record of that judgment, duly made and certified, which had been offered in evidence. The question here raised has already been decided by this court, upon very full argument and much consideration in Mandeville v. Stockett, 28 Miss. 398, and we are entirely satisfied with the correctness of that decision. Let the judgment be affirmed.