Allison v. Bowles

• Decision Date: 31 January 1844
• Citation: 8 Mo. 346
• Parties: ALLISON v. BOWLES.
• Court: Missouri Supreme Court

8 Mo. 346

ALLISON

v.BOWLES.

Supreme Court of Missouri.

January Term, 1844.

APPEAL FROM COOPER CIRCUIT COURT.

HAYDEN and RICHARDSON, for Appellant. 1. The court below erred in refusing to permit the appellant to show that Ryan was in possession of the negro for many months, in Boonville; that he used and treated her as his own property; that Bowles kept his claim secret from Allison, and that the possession of Ryan was with the knowledge and consent of Bowles; and that Bowles permitted Ryan to bring said negro with him from Virginia, where plaintiff resided, to Missouri. 2. That possession of personal property raises the presumption of ownership. 3 Bibb, 93; J. J. Marshall, 56-7; 1 Mo. R. Irwin v. Wells, 9; 1 Mo. R. 561. 3. That the court erred in refusing to give the instructions asked by the defendant.

STUART and MILLER, for Appellee. There was no error in permitting the plaintiff's evidence to go to the jury. The execution of the original deed was proven by the depositions: the certificates on the deed are in accordance with the acts of Virginia, and were read to prove that the deed had been properly recorded in the State of Virginia. The objectionable parts of the depositions were not read to the jury. The instructions of the defendant were properly refused, because: The defendant not being either a purchaser or a judgment creditor of the parties to the deed, could not attack the transfer from Stephen to Paul Bowles on the ground of fraud. The deed was a good deed against all but creditors and purchasers of Stephen Bowles. 5 J. J. Marshall, 87; 4 Monroe, 581; 4 Monroe, 122; McCreary v. Parcely, 1 Marshall, 114; 7 Mo. R. 127; 1 Pirtle, p. 473, § 65; 3 Littell, 10; 7 Monroe, 268. The bare possession of Ryan gave him no power to sell. He was a mere bailee with the permission of the plaintiff, and in accordance with the terms of the deed of trust. The deed expressly precluded him from exercising acts of ownership, and in selling he was attempting to commit a fraud upon the plaintiff, and it is immaterial whether Allison knew the extent of his right. The doctrine of caveat emptor required him to ascertain by what right Ryan held the negro. Hardin's R. Chism v. Woods, 531. The possession of Ryan was no evidence of title in this cause against the plaintiff, who had established a paramount right. His possession was not adverse but by permission of the plaintiff, under the authority of the deed. Hardin's R. 531, Chism v. Woods; 2 Starkie, 656, title Possession; 1 Dana, 115, Pool v. Adkinson. That the deed of trust from Stephen Bowles to Paul C. Bowles would have been good against the grantor, his heirs and all other persons but the creditors of, or subsequent purchasers from, the grantor, Stephen Bowles, had it been unrecorded, as the laws of Virginia require. 5 Cranch, 154, Pierce v. Turner. That when a wife or child has the legal or equitable title to personal property, and such wife or child resides with a husband or father, who exercises control or authority over such personal property, yet the law deems the possession with the person holding the title. 2 Pirtle's Digest, title Possession, p. 205, § 79; 3 J. J. Marshall, 280.

NAPTON, J.

This was an action of trover brought by the defendant in error, Paul C. Bowles, to recover the value of a negro girl, alleged to have been converted by the defendant to his use. On the trial the plaintiff produced a deed of trust from Stephen Bowles, of Amherst county, Virginia, granting to him the slave in controversy, in trust for the daughter of the grantor, Elizabeth Ryan, during her life, with remainder to her children living at the time of her death; and authorizing the trustee to hire out the said slave or permit Mrs. Ryan to remain in possession of her, as he should deem most to the interest of the said Elizabeth, but in no wise to suffer the husband of the said Elizabeth to exercise any control over the slave. This deed was duly executed, acknowledged and recorded, in pursuance of the laws of Virginia regulating such conveyances. The title of Stephen Bowles, the grantor in the deed, at the time of its execution, was also established. The defendant claimed by virtue of a sale made by Ryan, the husband of the cestui que use, who removed from Virginia to Missouri shortly after the execution of the deed, and whilst here sold the slave to defendant for three hundred and fifty dollars. The defendant offered to prove that Ryan was in possession of said negro for eight or nine months; that he exercised acts of ownership over the said slave; that defendant had no notice of the claim of said Paul C. Bowles; that said Bowles kept his claim secret from defendant, and that the possession by Ryan of this slave was with the knowledge and consent of said Bowles. This evidence was rejected by the court. The defendant also offered to prove, that the conveyance of the slave from Stephen Bowles to the said Paul C. Bowles was a feigned and pretended sale, and that the same was fraudulent and void; but the court refused to permit the defendant to give this proof. The judge instructed the jury, that if the said Ryan was merely entrusted with the possession of said negro, without any power or authority from the owner to sell said girl, that such sale could convey no title, although the purchaser had no knowledge of the plaintiffs claim; and refused to instruct the jury, at the instance of defendant, that the possession of Ryan was prima facie evidence of title, and that the purchase by the defendant, for a valuable consideration, without notice, was a good defense to the plaintiff's action. The plaintiff had a verdict and judgment for the value of the slave. To reverse this judgment, it is relied, that the court erred in its instructions, and in excluding the defendant's testimony.

This was a contract executed in Virginia, where all the parties resided; and it is conceled that its acknowledgment was in due form, and that, by the laws of Virginia, it was good against creditors and purchasers. It is a settled maxim...