Beale's Adm'r v. Dale

• Decision Date: 31 July 1857
• Citation: 25 Mo. 301
• Parties: BEALE'S ADMINISTRATOR, Respondent, v. DALE, Appellant.
• Court: Missouri Supreme Court

25 Mo. 301

BEALE'S ADMINISTRATOR, Respondent,

v.DALE, Appellant.

Supreme Court of Missouri.

July Term, 1857.

1. Where a father sends home with his married daughter a slave, saying at the time that he had given the slave to her, it will not be presumed, as a matter of law, to be an absolute gift.

2. In an action for the possession of a slave, in which the value of the slave was alleged to be nine hundred dollars, and the damages for the detention one hundred dollars, the jury did not find the value of the slave, but “assessed the damages at eight hundred dollars.” Quere, whether a judgment for such sum could be supported?

Appeal from St. Clair Circuit Court.

E. P. Wright, for appellant.

I. A new trial should have been granted on account of the verdict. The verdict was bad. It only finds part of what was in issue. The issues were, whether the slave belonged to plaintiff as averred; and if so, what was her value, and what the damages arising from the detention, if wrongfully detained? The jury failed to find the value, and the omission is fatal. (1 Chit. Plead. 141; 7 Bacon Abr. Verdict. m.) The damages were too large--being assessed at eight hundred dollars, and the amount claimed being only one hundred.

II. The first and second instructions given on the part of the plaintiff are wrong; the first is absolute, without reference to the disputed fact whether the slave was given to the wife for her separate use or not; and if it was, the instruction is wrong. The second is a comment on the evidence, and also states that as a presumption of law which should have been found by the jury. The instructions asked by defendant should have been given. If the facts were as supposed in defendant's instructions, the administrator of Beale's estate could not recover in any form of action.

III. The judgment should have been arrested; it neither conforms to the relief sought nor to the verdict. The petition sought the recovery of the slave, and the judgment should have been for such recovery; or rather the judgment should have been in the alternative, that the plaintiff recover the negro girl; or the value thereof, if he cannot have the negro girl, and damages for the detention. (1 Chit. Plead. 141.) But judgment should not have been rendered for greater damages than claimed in the petition. The jury having failed to find the issues, the court would reverse the judgment, even if no motion in arrest had been filed. (3 Mo. 275; 5 Mo. 53; 9 Mo. 624.)

Johnson and Gardenhire, for respondent.

I. Both parties conceded there was a gift; respondent insisting it was absolute, and vested the slave in Beale, the decedent; and appellant, that it was conditional, and vested the slave in decedent's wife during life, and in her children afterwards. This was a question of fact submitted to the jury under instructions every way unobjectionable, and they found it for the plaintiff.

II. But it is insisted in this court that the verdict was for greater damages than asked in the petition, and that the jury did not assess the value of the slave. Neither of these objections appears in the motion for a new trial. If valid, they were certainly sufficient grounds for a new trial, and the attention of the court below ought to have been called to them in the motion for a new trial. It was not done. There is nothing at all in the record to show that either of these objections ever was presented to, or thought of in, or decided by, the court below. This court only reviews such points as the record shows were presented to, and decided by, the court below. It is a court of review.

III. It cannot be insisted that these objections were presented to, and decided by, the court in the motion in arrest of judgment, and the decision of the court upon it. A motion in arrest is an attack upon the petition, as a motion for a new trial is an attack upon the verdict. There is no defect in the petition; the defect, if any, was in the verdict, and it was not pointed out to the court in the motion for a new trial. The judgment conforms to the verdict, and the verdict is such a one as will support the judgment; and, although the verdict might have been attacked successfully in the motion for a new trial, yet it was not so done, and it must stand, and standing supports the judgment.

RYLAND, Judge, delivered the opinion of the court.

This is an action, instituted in the Circuit Court of St. Clair county, by Metcalf, as the administrator de bonis non of the estate of James Beale, deceased, against Dale, in the nature of an action of detinue, for the recovery of the possession of a negro girl slave.

The plaintiff alleges that Beale died, the owner of the slave; that he, by virtue of his letters of administration, became the legal owner of the slave, and as such was entitled to the possession; that defendant wrongfully detains the negro girl; that the slave is of the value of nine hundred dollars, and that the damages sustained in consequence of the detention amount to one hundred dollars. Plaintiff asks judgment for the immediate possession of the negro girl slave, and for the damages for the detention. The defendant answered, denying the averments in the petition, and claims the negro as his own property.

It appears from the evidence set forth in the bill of exceptions that the wife of the decedent Beale (who is now the wife of the plaintiff) is the daughter of the defendant Dale. The negro girl in controversy was owned and raised by Dale. The evidence respecting the ownership of the slave at the time of the commencement of this suit consisted principally of the declarations of the defendant, and of the deceased Beale. The plaintiff endeavored to prove that defendant gave the slave absolutely to his daughter, in the life-time of Beale. The defendant endeavored to prove that he gave the negro to his daughter during her life, and after her death to her children, but not to take effect until the death of defendant's wife. The evidence shows that nothing was said by defendant about giving the negro, until some time during the last sickness of Beale. His daughter was then mother of several children by Beale. The jury found “the issues for the plaintiff, and assessed the damages at eight hundred dollars.” The judgment is as follows: “It is, therefore, considered by the court that the said plaintiff have and recover of the said defendant the said sum of eight hundred dollars so assessed by the jury as aforesaid, together with his costs and charges in this behalf expended, and that execution issue therefor.” As the court gave an improper instruction on the part of the plaintiff, and the judgment will in consequence have to be reversed, we have considered it most prudent not to give any intimation about the evidence. We shall, therefore, not make any statement of it particularly.

The law allows a person to make a parol or verbal gift of a slave, provided possession accompany the gift. The donor cannot give and retain the possession verbally, but may give verbally and without writing, if he give possession of the property to the donee at the time or shortly after, so that there be a transfer of the property and possession from the donor to the donee, bona fide, changing the property and possession, divesting the same from one and investing it in the other. The law allows a person to give, by parol, a slave to his daughter for life, and at her death to her children, especially if she have children living at the time of the gift, and the possession accompany the gift. In such case the delivery of possession to the mother, the tenant for life, was a delivery pro hac vice to her children. This doctrine is plainly laid down by this court in Pemberton v. Pemberton, 22 Mo., 338. The court, in delivering the opinion, asked the question: “Was it in the power of the donor to make this gift to his daughter for life, and then to become the property of her children? The children, in this case, were alive at the time the donation was made to their mother for life, and to them after her death. This donation gave the mother a life estate and a vested remainder to her children; the delivery of the possession to the mother, the tenant for life, was a delivery pro hac vice to her children.” The court also said in this case of Pemberton v....