Absalom Fowler and Noah Badgett, Appellants v. Ayres Merrill

• Decision Date: 01 December 1850
• Parties: ABSALOM FOWLER AND NOAH H. BADGETT, APPELLANTS, v. AYRES P. MERRILL
• Court: U.S. Supreme Court

52 U.S. 375 11 How. 375 13 L.Ed. 736 ABSALOM FOWLER AND NOAH H. BADGETT, APPELLANTS, v. AYRES P. MERRILL. December Term, 1850

THIS was an appeal from the Circuit Court of the United States for the District of Arkansas, sitting as a court of equity.

It was a bill filed by Merrill, the appellee, against Fowler

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and Badgett and other persons, under the following circumstances.

In April and June, 1837, N. L. Williams made the following notes:——

'$11,428 22/100.

Natchez, 1st April, 1837.

'Two years after date, I promise to pay J. L. Dawson, or order, the sum of eleven thousand four hundred and twenty-eight dollars and twenty-two cents, value received. Negotiable and payable at the Planters' Bank of Mississippi, Natchez.

(Signed,) N. L. WILLIAMS.'

'$1,150.

Natchez, 1st June, 1837.

'Twelve months after date, I promise to pay J. L. Dawson, or order, eleven hundred and fifty dollars, value received, negotiable and payable at the Planters' Bank of Mississippi, Natchez.

(Signed,) N. L. WILLIAMS.'

Making together the sum of $12,578.22.

These notes, indorsed by Dawson, were also indorsed by Merrill, and discounted for Dawson's use by the Planters' Bank of Mississippi at Natchez.

In order to secure Merrill, Dawson executed a mortgage to him of certain negroes then on the plantation of Dawson, in Arkansas. There were nine negro men, six women, and three boys included in the mortgage. As this mortgage was much discussed in the argument, it is proper to give its commencement and acknowledgment:——

'This indenture, made this 25th day of November, in the year of our Lord 1837, between James L. Dawson, of the county of Jefferson, State of Arkansas, of the one part, and A. P. Merrill, of the city of Natchez, State of Mississippi, of the other part, witnesseth: That the said James L. Dawson, in consideration of the debt to be secured, hereinafter mentioned, and of one dollar to him in hand paid by the said A. P. Merrill, the receipt whereof is hereby acknowledged, doth give, grant, bargain, sell, and convey unto the said A. P. Merrill, the following-described negroes, now on the plantation of the said James L. Dawson, known by the name of Woodstock, lying in the county of Jefferson, State of Arkansas, viz.' &c., &c.

'To have and to hold the said negroes unto the said A. P. Merrill, his heirs and assigns, to the only proper use of the said A. P. Merrill, his heirs and assigns for ever. Provided, that if the said James L. Dawson, his executors and administrators,

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or either of them, do pay, or cause to be paid, unto the said A. P. Merrill, his executors, administrators, or assigns, the just and full sum of $12,578.22, as mentioned in two certain notes of the following tenor, viz. No. 1, drawn by N. L. Williams, dated 1st April, 1837, at two years, for $11,428.22; 2 do. do., 1st June, 1837, twelve months, $1,150, indorsed by J. L. Dawson and A. P. Merrill, and payable at the Planter's Bank of Mississippi, Natchez, then these presents to be void; and the said James L. Dawson doth covenant with the said A. P. Merrill, that he, the said James L. Dawson, his executors, administrators, or assigns, shall and will pay, or cause to be paid, to the said A. P. Merrill, his executors, administrators, or assigns, the said sum of $12,578.22, as aforesaid, on the day above limited for the payment thereof.

'In testimony whereof, the said James L. Dawson has hereunto set his hand and seal, the day and year above written.

(Signed,) JAMES L. DAWSON.

'Signed, sealed, and delivered in the presence of——

'State of Mississippi, Adams County.

'Personally came before me, Judge of the Probate Court in and for the county aforesaid, the within-named James L. Dawson, who acknowledged that he signed, sealed, and delivered the within instrument in writing, as his act and deed, for the purposes and intents, and on the day and year, therein mentioned.

'Given under my hand and seal, this 24th day of November, A. D. 1837.

'C. RAWLING, Judge of Probate.'

On the 29th of December, 1837, this mortgage was recorded in Arkansas.

On the 12th of March, 1841, the President and Directors and Company of the Commercial Railroad Bank at Vicksburg, suing for the use of William W. Frazier, Thomas E. Robbins, and William S. Bodley, obtained a judgment against Dawson in the Circuit Court of Pulaski County (State court of Arkansas). The amount of the judgment was,——TA TABLE

On the 24th of April, 1841, a fieri facias was issued upon

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this judgment, and levied upon certain lands and eleven of the negroes mentioned in the mortgage.

After an alias writ, the property was exposed to sale on the 11th of October, 1841. Fowler became the purchaser of some of the negroes, and on the next day the sheriff executed a deed to him, reciting the judgment and execution, and concluding thus:——

'Now, know all men by these presents, that I, John J. Hammett, as such sheriff as aforesaid, for and in consideration of the premises, and for and in consideration of the said aggregate sum of $2,966.66 2/3, to him, the said John J. Hammett, as such sheriff, in hand paid by the said Absalom Fowler, the receipt whereof is hereby acknowledged, have granted, bargained, sold, and delivered, and do hereby grant, bargain, sell, and deliver, all of said slaves above described to the said Absalom Fowler, hereby conveying to him, and to his heirs and assigns for ever, all of the right, title, estate, interest, claim, and demand of the said James L. Dawson, of, in, and to the same. Not making myself hereby responsible for the title of said slaves, but only conveying, as such sheriff, the title of the said James L. Dawson in and to the same.

'Signed, sealed, and delivered, this 12th day of October, A. D. 1841. Interlined on second and third pages before signed.

'JOHN J. HAMMETT, Sheriff of Jefferson County, Arkansas.'

Badgett subsequently purchased some of these slaves from Fowler, and other persons, who were made defendants in the bill filed by Merrill, were purchasers at the sale.

On the 4th of March, 1842, Merrill paid the notes of Williams, which had been discounted for Dawson's use by the Planters' Bank of Mississippi.

On the 7th of September, 1842, Merrill filed his bill in the Circuit Court of the United States for Arkansas, against the following persons; viz. 'James L. Dawson, who is a citizen of the State of Arkansas, but now temporarily residing in the Indian country west of the State of Arkansas, James Smith of Arkansas County, William Dawson of Jefferson County, Samuel C. Roane of Jefferson County, Samuel Taylor of Jefferson County, Nathaniel H. Fish of Jefferson County, Garland Hardwick of Jefferson County, Absalom Fowler of Pulaski County, Noah H. Badgett of Pulaski County, and all of whom are citizens of the State of Arkansas, and Sophia M. Baylor, who is a citizen of the State of Arkansas, but now

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temporarily residing at Fort Gibson, in the Indian country, west of the State of Arkansas.'

The bill stated circumstances mentioned above, and then averred that the defendants purchased the slaves with notice of the mortgage. It then specially interrogated Fowler and Badgett, among other things, as to whether they ever had actual notice of the mortgage, and if so, when; and also as to the value of the slaves at the time they came into their possession, and their value at the time of filing the bill; and as to the worth of their services or hire after they came into defendants' possession; and whether Jackson and other children were the issue of the mortgaged slaves; also as to the identity of the slaves themselves.

Defendants answered, setting up a bon a fide purchase, without notice, at the sheriff's sale, and denying, as far as they knew or believed, all of the material allegations of the bill, and alleging that the mortgage was fraudulent; that Dawson had remained continuously in possession of the slaves, contrary to the terms of the deed; that they did not know whether the slaves were the same, and denied positively that Jackson was the issue of any one of the mortgaged slaves. In response to the interrogatories as to the value, hire, &c., Fowler answered, that Eliza, one purchased by him, and sold to Badgett, died before the commencement of the suit; that, at the time he purchased them, they were worth about what he gave for them, to wit: Tom, $533.33 1/3; Phoebe and Jackson, $666.66 2/3; Mary and Henry, $500; Maria and her child, $600; Eliza, $466.66 2/3; and that, since the sale, the value of slaves generally, and these also, had depreciated at least one fourth; and that their hire, deducting necessary expenses, was worth, per annum, for Tom $70, Maria $50, Mary $40, Phoebe $40; and for the others, nothing. Badgett answers, also, that Phoebe was worth $400, Eliza $350, Jackson $65, and that Eliza had died, &c., and that their hire was not worth more than $40 per annum.

The valuation preparatory to the sheriff's sale was as follows:——TA TABLE

It is not necessary to trace the progress of the suit through

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its various steps. Many depositions were taken under a commission, and otherwise, and exceptions to their admissibility filed. One of them, which is the subject of a part of the opinion of this court, will be particularly mentioned for that reason. The point, as raised and decided in the Circuit Court was as follows:——

'The fourth exception is, 'that the deposition of Henry D. Mandeville, taken at Natchez, on the 8th of March, 1845, was taken without any sufficient notice having been served on said defendants of the time and place of taking the same.'

'The answer to this exception is, that where a deposition is taken, according to the acts of Congress, at greater distance from the place of trial than one hundred miles, no notice is required. By the certificate of the magistrate before whom the deposition was taken, it appears that the witness lives more than one hundred miles from...