Another v. Avery

• Decision Date: 01 January 1854
• Citation: 12 Tex. 54
• Parties: AVERY AND ANOTHER v. AVERY.
• Court: Texas Supreme Court

12 Tex. 54

AVERY AND ANOTHER

v.AVERY.

Supreme Court of Texas.

1854.

Where parties intermarried in a State where the property of the wife became the property of the husband on marriage, and afterwards moved into another State where the wife was allowed to acquire and hold separate property, and in the latter State the husband exchanged one of his slaves for a slave the title to which he caused to be made to his wife in compensation or exchange for one that he had received from her by marriage, and the parties afterwards moved to this State bringing their slaves with them, and the husband died, it was held that the widow was entitled, against his legal representatives, to the slave so acquired through her husband.

An administrator cannot impeach, for the benefit of creditors, the consideration of a voluntary conveyance made by his intestate. (Note 18.)

Where suit was brought for the recovery of a slave, and the jury found the following verdict, “We, the jury, find for the plaintiff, with $80 damages and costs of suit,” and the judgment was for the slave and damages and costs of suit, and it was objected that the verdict was insufficient to support the judgment, it was held that the verdict was sufficient, under the uniform decision of this Court, that if by a reference to the record any uncertainty in the verdict can be explained, it will be sufficient to sustain the appropriate judgment. (Note 19.)

Where a single piece of property is sued for in specie, and not in the alternative of damages, and is sequestered, and remains in the hands of the Sheriff unreplevied, it is sufficient to find such piece of property for the plaintiff without assessing its value. This case distinguishable from that of Blakely v. Duncan, 4 Tex. R., 184.

Error from Cherokee.

S. P. Donley, for plaintiff in error.

Henderson & Jones and J. C. Everett, for defendant in error.

LIPSCOMB, J.

This suit was brought by the defendant in error, against Avery, one of the plaintiffs in error, to recover a negro slave. After Richard Avery had been discharged from the administration on the estate of James S. Avery, Green was appointed administrator of the said estate, and on his application, was permitted to be made a party defendant. The defense set up was, that the slaves sued for was a part of the property appertaining to the estate of the said James S. Avery, deceased, and not the separate property of the widow, the plaintiff in suit. The material facts are, that James S. Avery intermarried with the plaintiff in the State of Georgia, and by his marriage became the owner of a certain slave, the property of his wife at the time of his marriage; that he always called the slave so acquired the property of his wife; and becoming a good deal embarrassed, he ran the said slave to the State of Louisiana, declaring that he ran the slave off to prevent his being sold for his debts, and that as he was his wife's negro, he never should be sold for his debts; that he afterwards paid his debts in Georgia, and was in a prosperous condition in Louisiana, and was out of debt; that under these circumstances, whilst in the State of Louisiana, he proposed to his wife that he would exchange one of his own slaves for one that would suit his wife better than the one he had acquired by his marriage with her, and that he would have the bill of sale for the one received in exchange, in the name of his wife, in the place of the one he had always called her slave; that the exchange was accordingly made, and the bill of sale for the slave received in exchange, was made to his wife, the plaintiff in the suit; and this slave so received in exchange is the same now in controversy.

James S. Avery afterwards moved with his family to this State, bringing the slave, together with his slaves with him, and died in Cherokee county. His widow, the plaintiff in this suit, was appointed administratrix, and Richard Avery, the defendant in this suit, was appointed administrator of his estate. In the first inventory and appraisement returned to the Court, the slave in question was not included with the slaves belonging to the estate. The plaintiff resigned her administration, and Richard Avery proceeded with the settlement of the estate, and made an additional return of appraisement, in which the slave sued for was appraised and returned as the property of the estate of James S. Avery, deceased. The administrator subsequently declared that he had become satisfied that the slave was the separate property of the widow, and did not belong to the estate of his intestate; but alleged that he could not deliver him up to the widow without an order of Court. The slave was subsequently delivered up to the plaintiff, under an order of the Probate Court, but was afterwards taken from her by the defendant, and suit was brought, and on a writ of sequestration, sued out at the instance of the plaintiff, the slave was taken into the custody of the Sheriff, and kept by him, neither of the parties offering to replevy him. In the defendant's answer, it is alleged that the slave belonged to the community property, and that the estate was insolvent. It was in proof, that, by the laws of...