Davis v. Herndon

Handy, J., delivered the opinion of the court: This action was brought, under the statute of 1850 in relation to pleadings in actions at law, for the recovery of certain slaves, with hire, &c., from the defendant, to which the defendant pleaded a general denial of the allegations of the complaint. On the trial the plaintiff offered in evidence a copy of a deed from the County Court of Baldwin county, in the State of Alabama, where it was recorded; and the defendant objected to its introduction, on the ground that it was not duly recorded according to the laws of that State. The objection was sustained, and the copy excluded, the plaintiff excepting. The plaintiff then proved the execution of the deed by the proper witnesses, and offered it in evidence as an original deed, not recorded, in support of his title; offering to prove, at the same time, that the plaintiff’s daughter, Elizabeth Hannah Morgan, had died in the year 1849, leaving no child, and that her husband subsequently died in the same year. To the introduction of this [502] evidence the defendant objected, on the ground that the deed showed title out of the plaintiff and did not tend to maintain the issue on his part; and the objection was sustained and the deed excluded, the plaintiff excepting. These rulings are the grounds of the two first errors assigned. We will proceed to consider first the second ruling, which is the first error assigned. It is to be observed that the objection to the evidence applies rather to its sufficiency to show title in the plaintiff, than to its admissibility; and hence that it would have been more in accordance with established practice for the court to have admitted the evidence, and afterwards have pronounced upon its sufficiency to show title in the plaintiff', in connection with any other evidence which the plaintiff might have adduced. But, inasmuch as the plaintiff relied upon the deed as a distinct and sufficient ground of his title, no prejudice was done to him by considering the question whether he had title under the deed, upon an objection to its admissibility. The question, therefore, which is material to be considered, is, whether the deed shows title in the plaintiff. The deed was executed by the plaintiff in the action. It is a deed of gift, by which the donor lends” to his daughter, Elizabeth Hannah Morgan, wife of George R. G. Morgan, the slaves in controversy, “ for her to have the use of them and their increase during her life, and at her death, should she leave a child or children, when they arrive at the age of twenty-one years or marry, then the slaves to be their right and property forever, but should his daughter die leaving no child, in that case the said negroes are to be considered as part of my [his] estate as much as if this deed had never been made, and the said negroes to be equally divided among her surviving brothers and sisters” — who are named — “ and if either of them be dead, the child or children to have that portion that would be going to their father or mother if they were alive. I wish it to be fully understood that the above-named negroes are not to be subject to any contract whatever made by my [his] daughter, Elizabeth Hannah Morgan, or her husband; the profit arising from their labor alone she is to have, reserving to myself the power of control as trustee for my [503] daughter during my life, and after my death to such person or persons as I may appoint.” It is contended that the clause — that in the event of the daughter’s dying leaving no child, the slaves are to he considered as part of his estate as much as if the deed had not been made” — operated to revest the title in thé donor upon her death leaving no child, to the exclusion of any interest in her surviving brothers and sisters. But it is evident that this is not the true construction of the clause; for immediately following it and in direct connection with it is the limitation that, upon her death without issue, the slaves are to be equally divided among her surviving brothers and sisters — which is wholly irreconcilable with the construction contended for. It appears that the object of the donor was merely to “loan” the slaves to his daughter, giving her “ the profit arising from their labor alone,” during her life, and to exclude any property in her in them and to prevent their being subjected to any contract made by the daughter or her husband. And to that end, he reserves to himself the power to control the slaves as trustee for her during his life, and after his death to such person or persons as he should appoint. The clause relied on to support the title of the plaintiff is unskilfully introduced ; but the intention is manifest from the whole instrument. That intention was, to exclude the idea that any interest was to vest in the daughter, which should continue after her death; but upon her dying without issue, that the slaves were to be considered as part of his estate. But to what end were they so to be considered ? The instrument continues immediately to declare this — that the slaves were, in the event stated, “ to be equally divided among her surviving brothers and sisters.” This is a clear conveyance of an estate in remainder to the surviving brothers and sisters, to take effect on the death of Mrs. Morgan, without issue; and this estate is as positively conveyed by the deed as is the loan to Mrs. Morgan for life with remainder to her children that might survive her. Hence it is very clear that the deed divested the title Of the donor; and of itself did not tend to show title in him. The ruling of the court was, therefore, correct; and as the [504] same view is applicable to tbe copy of tbe deed offered, no prejudice was done to tbe plaintiff by the exclusion of it, if it be conceded that it was properly proved and recorded. It is therefore immaterial to the substantial merits of the case whether the copy was correctly excluded or not for the reason upon which it was excluded; for, if admitted, it would not have shown title in the plaintiff. The plaintiff next offered in evidence a deed of quit-claim and release executed to him by the surviving brothers and sisters of .Mrs. Morgan, dated 8d April, 1850, conveying to him-their interest in the slaves; and, in offering the same, admitted that on the 1st March, 1850, "William P. Ghovan was in the actual and exclusive possession of these slaves, in Pontotoc county, in this State, claiming them as his own property, to the knowledge of the plaintiff, and that Ghovan has been since that time, and was at the time of the commencement of this suit, in such possession, to the knowledge of the plaintiff. And thereupon the defendant objected to the introduction of this deed, and the objection was sustained, the plaintiff excepting. This ruling of the court is the last error assigned. We think that no error was committed in this, to the plaintiff’s prejudice, for several reasons. 1. If the action be regarded as for trover and conversion, it appears that the slaves were in the adverse possession of Ghovan, at and before the date of the quit-claim deed to the plaintiff; and the alleged conversion must have been committed before the date of that deed. And it is well settled that the deed could not convey a right of action for conversion against the defendant, who had committed the alleged wrongful act before the title of the plaintiff to the property accrued; for that would be the assignment of a mere right to sue for a wrong; which is against the policy of the law. Goodwin v. Lloyd, 8 Porter, 237; Dunklin v. Wilkins, 5 Ala. R. 199; McGoon v. Ankeny, 11 Ill. 558; 3 Littell, 41; Gardner v. Adams, 12 Wend. 297. 2. If the action be regarded as detinue, the deed conferred no title, upon the plaintiff; because, at its date, the slaves were in the adverse possession of a stranger, claiming them as his property, to the knowledge of the plaintiff when he accepted the deed. [505] The deed was therefore inoperative to convey title. Brown v. Lipscomb, 9 Porter, 472; Young v. Ferguson, 1 Littell, 298; McGoon v. Ankeny, supra; Dunklin v. Wilkins, supra. But, moreover, detinue could not be maintained, because, at the institution of the suit, the slaves were in the possession of Ghovan, and it is necessary that this form of action should be brought against the party having the slaves in possession. 1 Saund. Pl. and Ev. 436. 8. The deed was offered as a registered deed in Alabama, without further proof of its execution. It appears that the slaves were, at the time of its execution and registration, in this State, and in the adverse possession of Ghovan. The registration in Alabama was, therefore, invalid, and inoperative as to the rights of parties holding the slaves in this State; and on this ground the instrument was inadmissible as a recorded deed. Judgment affirmed.