Abington v. Travis

• Decision Date: 31 October 1851
• Citation: Abington v. Travis, 15 Mo. 240 (Mo. 1851)
• Parties: AMANDA ABINGTON v. THOS. L. TRAVIS.
• Court: Missouri Supreme Court

15 Mo. 240

AMANDA ABINGTON

v.THOS. L. TRAVIS.

Supreme Court of Missouri.

October Term, 1851.

ERROR TO ST. CHARLES CIRCUIT COURT.

This was an action of detinue, to recover the possession of several slaves, instituted by the plaintiff in error against the defendant, in the court below. The Circuit Court, sitting as a jury, found a verdict for the defendant, and a motion for a new trial having been made by the plaintiff, and overruled by the court, the case is brought here by appeal.

It appears, by the bill of exceptions, that Paulina, one of the slaves sued for, and the mother of the others, was bequeathed to the plaintiff during her natural life, by the last will of Taylor Abington, deceased, of whom she was the widow. The testator died in the year 1842, and Samuel Abington, his executor, took upon himself the execution of the will, and took possession of the said slaves; that the executor hired out the slaves till the 14th of February, 1846, when he made his final settlement of his administration in the St. Charles County Court. That on said final settlement, the executor was ordered to distribute said slaves to the plaintiff, so soon as John B. Abington, her husband, should execute a bond in the sum of $1,400, conditioned, that he would not remove the slaves out of this State. The defendant was, at the date of said order, in possession of the slaves, as hirer of the slaves from the executor. That by virtue of an execution against John B. Abington, in favor of said executor, the slaves were levied upon by the constable of the township, and while they were in his possession, as constable, the defendant in the execution (the said John B. Abington) paid off the execution to the officer, and took the slaves home with him in the night. The next morning the executor and the son of the defendant in error, forcibly took the slaves from the possession of Abington, and gave them into the possession of the defendant, Travis, where they have been ever since. A few days after, they were again levied upon by virtue of two executions in favor of Joseph Ellis, and Fanny Abington against Jno. B. Abington, and sold by the officer, and bought by the defendant, Travis, for the sum of two hundred and fifty dollars. That previous to the sale by constable, the defendant, Travis, and John B. Abington had entered into an agreement, by which Travis agreed to purchase the said slaves at the sum of $300 00, of which sum, $250 00 were paid at the constable's sale, as aforesaid, and the balance of $50 00, to the said John B. Abington, afterwards. That the order of the County Court, requiring John B. Abington to give security, has never been complied with. That at the time of the constable's sale, Travis had full notice of the existence of said order. The defendant was the owner of the reversionary interest in said slaves, after the expiration of the life-estate of said Amanda Abington. That defendant was in possession of the slaves at the time of the commencement of this suit, and that John B. Abington died before the commencement of this suit.

At the close of the testimony, the plaintiff prayed the court to instruct the jury: 1st. That the possession of the slaves, which John B. Abington obtained from the constable, Dyer, being in violation of the order of distribution of said slaves, made by the County Court of St. Charles county, and without consent of the executor of Taylor Abington, deceased, who was entitled to the possession of said slaves, was not such a possession of said slaves as to divest the said plaintiff of her life-estate in said slaves 2nd. The possession of said slaves, by John B. Abington, under the circumstances that it was obtained, gave to him, the said John B. Abington, no legal interest in said slaves. 3rd That by the last will of T. Abington, deceased, said plaintiff was entitled to the possession and use of the said slave, Paulina, and her children, during the natural life of her, the plaintiff, subject, however, to the payment of the debts of the said Taylor, deceased. 4th. That while said slaves were in the possession of the executor of Taylor Abington, deceased, for the purpose of administration, they were not subject to sale, to pay the debts of the husband of plaintiff. 5th. The seizure and sale of said slaves, by the constable, to satisfy two executions against John B. Abington (the husband of plaintiff), before said slaves had legally passed out of the possession of the executor of Taylor Abington, deceased, did not divest the plaintiff of any right which she had in them, by virtue of the will of Taylor Abington, deceased. 6th. That the agreement made by John B. Abington, through Stephen Ellis, his agent, to let Travis buy the negroes at the price of $300, was void as against plaintiff, and did not deprive her of any of her legal rights in said slaves. The first, second and sixth of the instructions were refused; and the third, fourth and fifth were given.

And the court, at the instance of the defendant, gave the following instructions: 1st. That by the will of Taylor Abington, deceased, a life-estate in the slaves in question vested in Amanda Abington. 2nd. That the marriage of the plaintiff, said Amanda, with John B. Abington, together with acts of ownership over said slaves, exercised by John B. Abington, during the marriage, vested the said John B. Abington with all the rights of his wife, Amanda, in said property. 3rd. That the sale by John B....