Bogard v. Jones

• Decision Date: 30 April 1849
• Citation: 28 Tenn. 739
• Parties: BOGARD v. JONES.
• Court: Tennessee Supreme Court

28 Tenn. 739

BOGARD

v.JONES.

Supreme Court of Tennessee.

April Term, 1849.

This case was tried by Judge Dunlap and a jury, in the county of Hardeman, and a verdict and judgment rendered for the plaintiff. Defendant appealed.

J. R. Fentress, for plaintiff in error.

V. D. and H. A. Barry, for defendant in error.

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

This is an action of replevin brought by Wm. Bogard against Lewis Jones, to recover a negro woman named Julia, and her child named Ann. Upon the trial in the circuit court of Hardeman it appeared that the plaintiff purchased the negroes in dispute from John G. Price, on the 5th of April, 1846, at Salem, in Marshall county, state of Mississippi, for the price of $575, and received a bill of sale for them; that they remained in his possession, at his house in said county of Marshall, till about the 28th day of January, 1847; that on the 28th day of January, 1847, they were found in the possession of the defendant, in the county of Hardeman, state of Tennessee. It further appeared that the negro Julia was the child of a negro Sally, who had been devised to Fanny Morris for life, with remainder to her children, by her father, Archer Johnson, in the state of North Carolina, and that Fanny Morris was dead. It also appeared that the defendant claimed the negro Julia and her child Ann by virtue of a bill of sale executed to him on the 27th day of October, 1845, by Richard Freeman, who is proven to have been a son-in-law of Fanny Morris, who was dead before the execution of the bill of sale. It also appeared, from the testimony of A. Vanhook, that on one occasion he was at the house of Richard Freeman, and was then introduced to the young men who, he was informed by Freeman, were the sons of Fanny Morris and his (Freeman's) brother-in-law. Upon these facts his honor the circuit judge charged the jury, in substance, as follows: “The action of replevin was, in substance, an action of detinue, and it was necessary for the plaintiff to prove a right to the property in the dispute between the parties. That proof of the possession of the negroes is prima facie evidence of title, and would be sufficient to enable the plaintiff to recover against all persons but those having a better title; and that if the testimony had closed upon the plaintiff's proof, he would have been entitled to recover. To resist a recovery the defendant had read in evidence a copy of a will of Archibald Johnson, deceased, in one item of which he will to certain trustees two negroes and their increase, for the use of his daughter, Fanny Morris, during her life, with remainder to her children; also depositions to prove that the negroes in controversy were the issue of Sally, one of the negroes devised to Fanny Morris by her father; and also a bill of sale from Richard Freeman for the negro woman and child, and testimony to show that Freeman was the son-in-law of Fanny Morris, and that she was dead. Now, if the...