Brown v. Goolsby

Handy, J., delivered the opinion of the court. This bill was filed by the appellants on the 25th November, 1854, in the District Chancery Court of Holly Springs, to recover possession of a slave, the property of the appellants, alleged to be in the possession of the appellee Goolsby, and hire for the detention. The bill alleges, in substance, that the mother of the appellants, having a life estate in the slave in the State of North Carolina, loaned the slave to one Rowers in that State, who brought him to this State, and fraudulently sold him to one Watson, who sold him subsequently to Goolsby. That the appellants’ mother died in the winter of the year 1852, at which time the title to the slave vested in the appellants. Goolsby answered, admitting that he purchased the slave from Watson in February, 1852, but denying he was, in his possession, or that he had had possession of him since February, 1854, at which time he resold the slave to Watson ; and setting up the Statute of Limitations of three years as a defence. In August, 1856, the appellants filed an amended bill, making Watson a party, alleging that since the filing of the original bill, they had discovered that Goolsby had sold the slave to Watson in [447] February, 1854, and charging that the resale to Watson was made because the appellees had notice of the appellants’ rights, and by fraudulent combination, to change the possession of the slave from Goolsby to Watson, before this bill was filed against Goolsby. The answers substantially admit that the appellees had notice about the time of the resale to Watson of the appellants’ claim, and that the slave was returned by Goolsby to Watson, who gave Goolsby another slave in his place, Goolsby’s reason for returning the slave being that he did not wish to have a slave with a doubtful title. They deny all fraud, and set up the Statute of Limitations of three years as a defence. Upon the hearing, the bill was dismissed, and from that decree this appeal was taken. 1. As to Watson, it appears that the appellants’ right of possession accrued about the month of January, 1852, and that about the same time Watson purchased the slave and took him into possession, claiming title. The amended bill, by which he was made a party, Was not filed until August, 1856, and until that time the suit cannot be considered as having been commenced against him. There was then a period of more than three years since the accrual of the appellants’ right of action against Watson, and also more than three years since the commencement of his adverse possession, which was still continued. The suit was, therefore, clearly barred as to him by the statute, and on this ground the bill was properly dismissed as to him. 2. The Statute of Limitations is not a bar as to Goolsby, because less than three years had intervened between the time of accrual of the appellants’ right of possession and the time of filing the original bill against him. But it appears by the pleadings that the slave was not in the possession of Goolsby at the time of filing the original bill, nor at any subsequent time; and that is relied on as a reason why the relief sought by the bill cannot be decreed against him. The question is thus presented, whether a party entitled to the possession of a slave can maintain a bill in equity against a defendant who has previously had possession of the slave, and converted him to his use by sale, or otherwise parting with the possession, but is out of pos [448] session at the time of filing the bill and during the pendency of the suit. It is clear that no decree can be had against the defendant in such a case for the delivery of possession of the slave, because the slave is out of his possession and beyond his control; and as such a decree would be to require an impracticable act, it would be nugatory, and the owner would have to resort to the person in whose possession the slave might be found. But can the owner maintain su’ch a bill to recover damages for the value of the slave against the defendant, who has sold him and parted with possession before the institution of the suit, by analogy to the action of detinue at law ? The numerous cases in which bills in equity for the recovery of possession of slaves have been entertained, proceed upon the general principle that slaves are a species of property of peculiar value to the owner, which cannot be adequately compensated in mere damages for their loss; and, therefore, that the owner is entitled to invoke the extraordinary powers of a court of equity to enable him to have the slave restored to him in specie, by the party in whose possession he may be found. The very principle and necessity of the jurisdiction is, to compel and insure a delivery by the person holding possession to the party entitled to the possession. And hence, possession by the defendant at the time of the institution of the suit, or during its.pendency, is a necessary jurisdictional fact, without which the very object of the proceeding would fail. For if the suit could be maintained merely for the recovery of damages for the conversion or detention of the slave, it is manifest that that would be the same remedy which existed at law, — a decree in equity for money, instead .of a judgment at law for the same amount, and to be collected in the same manner in each forum. And because there is an adequate remedy at law, upon familiar doctrine, the owner cannot have relief in a court of equity. There cannot be a doubt but that this is- true with reference to a suit in equity brought solely for the purpose of recovering damages for the conversion or detention, the slave not being in the defendant’s possession. Is the case different where the bill alleges that the slave is in the defendant’s possession, and seeks a recovery in specie and hire, and the fact is that the slave is not in the defendant’s possession ? We [449] think not; because the main jurisdictional fact of possession is wanting. It is that fact which gives the jurisdiction in equity, and without it the jurisdiction must fail both as to delivery of possession, which is the principal, and the decree for damages for detention, which follows as an incident. But the incident cannot give jurisdiction without the principal. Such a bill would simply be, as to the possession, a suit brought against the wrong person, and would be, in that respect, as though it had not been brought to recover possession; and it would then stand in effect upon the ground of a mere bill to recover damages for convei'sion or detention. The case is not different in principle and upon the point under consideration, from the action of replevin, to which it bears a stronger analogy than to any other action at law. No recovery could be had in that action for damages against a party not in possession at the institution of the suit, the possession being the very ground of the action; and there is as great a necessity for possession in the defendant in a bill like this, as in the action of replevin. For these reasons, we are of opinion that where the defendant is not in. possession of a slave sought to be recovered in equity, either at the time of the filing of the bill or during its pendency, no decree can be rendered against him, either for the delivery of the slave or for damages for his conversion or detention, though the bill allege that the slave.is in the defendant’s possession. And accordingly, the decree in this case must be affirmed.