Barham v. Turbeville

• Decision Date: 30 April 1852
• Citation: 31 Tenn. 437
• Parties: BARHAM v. TURBEVILLE et al.
• Court: Tennessee Supreme Court

31 Tenn. 437

BARHAM

v.TURBEVILLE et al.

Supreme Court of Tennessee.

April Term, 1852.

This action of trover, for the conversion of a slave, was tried in the circuit court of Carroll county, at its September term, 1851, Fitzgerald, judge presiding. There was judgment for the plaintiffs, and the defendant appealed in error.

L. M. Jones and Morrill, for plaintiff in error, cited 1 Story's Eq., secs. 384, 385, and note 4; 6 Johns. 166; Sugden on Vend. 482, bottom page; 13 Pet. 107; 2 Kent's Com. 240, 241, and notes; 6 Cranch, 226;2 Wend. 137; 3 Peck, 492; Dillard v. Dillard, 3 Humph.; Hunter v. Foster, 4 id.; Wallace v. Moss, 5 Hill; 12 Vt. 28; 14 id. 405; 10 id. 71; 16 Mass. 389; Story on Con., secs. 65, 66, and notes.

Hawkins, for defendants in error.

Totten, J., delivered the opinion of the court.

The action is trover, in the circuit court of Carroll, by Samuel F. Turbeville and others against Timothy Barham, for the conversion of a negro slave, to which the plaintiffs claim title. At September term, 1851, of said court there was judgment for the plaintiffs for $693. and the defendant appealed in error to this court.

It appears that in 1849 the defendant, Barham, purchased said slave of Ansel H. Turbeville, the father of the plaintiffs, and under him claims absolute title and ownership.

But it is very clear that Ansel H. Turbeville, the father, had no title. The title was in his children, derived by them from a third person--that is, from their maternal ancestor, Elizabeth McKinney--sometime about 1840, in the state of Louisiana, where the Turbeville family then resided. By order of the probate court of the parish of Baton Rouge, in June, 1840, the said Ansel was appointed tutor to his said children, and from that time forward held possession of their slaves so derived, the slave in question being one of them.

In 1843 he, with his children and said slaves, removed from Louisiana to Tennessee, first to the county of Henry, and then, in the early part of 1844, to Carroll, where, in 1849, he sold the slave in question to defendant, Barham. The said Ansel spoke of the slaves and used them as his own, and it seems that they were generally so considered, though there were some intimations that the title was in his children.

In June, 1849, the said Ansel died, and afterwards, in December, his children instituted this suit.

At the time of said sale to Barham, Samuel F., one of the plaintiffs, was about twenty years of age--the other children were under that age.

The defendant offered to prove at the trial, by Thomas, a witness, that when the slave was sold to defendant, two of the plaintiffs, Samuel and another, knew of their title, and concealed it from defendant; that they stated to defendant that their father's title was valid, and that they had no title; that they encouraged defendant to buy, and consented to the sale.

This evidence, being objected to, was ruled out by the court; and the question to be decided is, Was it legally competent?

It is very clear that, in the view of a court of equity, evidence of this kind would be deemed competent.

For, if a man having title to an estate which is offered for sale, and knowing his title, stands by and encourages the sale, and thereby another person is induced to purchase the estate, under the impression that the title is good, the former, so acting, will be bound by the sale, and neither he nor his privies will be at liberty to dispute the validity of the vendee's title. Stoors v. Barker, 6 Johns. Ch. 169;Wendell v. Van Rensselaer, 1 Id. 354; 1 Story's Eq. Jur., sec. 385.

This doctrine, indeed, goes still further, and demands that the true owner shall speak out and forbid the sale. But the case we have supposed is one of positive and actual fraud, and in such case neither infancy nor coverture will constitute any excuse for the guilty party; “for neither infants nor femes covert are privileged to practice deception or cheats upon other innocent persons.” 1 Story's Eq. Jur., sec. 385; Nicholson v. Hooper, 4 Myl. & Cr. 172; Pickard v. Sears, 6 Ad. & E. 474. So, in Sugden on Vendors, 262, margin, it is said, if a person having a right to an estate permit or encourage a purchaser to buy it of another, the purchaser shall hold it against the person who has the right, although covert, or under age.

Now, does this doctrine apply in an action for personal property in a court of law?

A person may be estopped by matter in pais, as well as by record and by deed. 4 Com. Dig., Estoppel; 2 Ph. on Ev., C. & H. notes, 192.

In Pickard v. Sears, 6 Ad. & E. 474, which was trover for machinery and other articles, it appeared that the plaintiff had the legal title, but gave no notice of his claim at the time the defendant became the purchaser, though present, and informed that the goods were to be sold. It was held,...