Booth v. Terrell

• Decision Date: 31 August 1854
• Docket Number: No. 5.,5.
• Citation: 16 Ga. 20
• Parties: Martha Booth, plaintiff in error. vs. Richmond Terrell, defendant in error.
• Court: Georgia Supreme Court

16 Ga. 20

Martha Booth, plaintiff in error. vs. Richmond Terrell, defendant in error.

No. 5.

Supreme Court of the State of Georgia

AUGUST TERM, 1854.

Trover, in Newton Superior Court. Tried before Judge Starke, March Term, 1854.

This was an action of trover brought by John P. Booth and his wife, Martha Booth, against Richmond Terrell, for the recovery of eight negro slaves, to-wit: Letty and seven children, named in the declaration. Pending the action John P. Booth died, and the same proceeded in the name of the wife.

The defendant pleaded the general issue and the Statute of Limitations.

On the trial, plaintiff proved by two witnesses, that in the year 1820, in Jefferson county, Richard Hodges, the father of Mrs. Booth, loaned Letty, the negro woman sued for, to Richmond Terrell and his wife, for and during the life-time of the latter, with the understanding, that at the death of Mrs. Terrell, the said girl Letty should be returned to his daughter, Martha Hodges, the plaintiff in the action.

Plaintiff also read in evidence the will of Richard Hodges, the 2d item of which read as follows: "I give and bequeath to my daughter, Martha Hodges, eleven negroes, named as follows: Mary and her four children (naming them and others,) and Letty; the last named in the possession of Mrs. Terrell, and to remain so during Mrs Terrell's natural life; then to become the property of my daughter, Martha Hodges." The plaintiff also proved the death of Mrs. Terrell, the conversion and value of the negroes and closed.

The defendant introduced testimony, which it is unnecessary to set out here.

The Court charged the Jury, "that a loan of a slave by one person to another, for the life of the person to whom the property was loaned, or for the life of his wife, by a parol agreement that the slave should be returned to the owner or his heirs, at the death of such person, vested an absolute title to the slave, in the person to whom it was loaned. And if the Jury believed that Richard Hodges was the owner of the negro girl Letty, and that he loaned her to the defendant or his wife upon a parol contract, that she was to be returned to him or his heirs, after the death of defendant\'s wife, that the defendant thereby acquired an absolute fee simple title to the negro, and the plaintiff could not recover; but the Jury ought to find a verdict for the defendant."

To which charge of the Court, Counsel for plaintiff excepted and has brought up the same for review.

Ezzard & W. W. Clark, for plaintiff in error.

Floyd, for defendant in error.

By the Court.—Lumpkin, J., delivering the opinion.

This is an action of trover by Martha Booth against Richmond Terrell, for eight negroes. The plaintiff relies on the following title, namely: that her father, Richard Hodges, intermarried with Louisa Terrell, the daughter of the defendant; and by said marriage, acquired the title to Letty, who, together with her children, constitute the property in dispute. That Mrs. Hodges died some short time after her intermarriage with plaintiff's father; and that thereupon, Richmond Hodges loaned to his mother-in-law, Mrs. Terrell, wife of the defendant, and at her special request, and by the consent and approval of the defendant, the girl Letty, to be held and enjoyed by her as a loan, during her life-time; and at her death, one of the witnesses swears, the negro was to be returned to plaintiff, who is the daughter of Richard Hodges by a former wife. The other witness testifies to the same contract, in substance, except that he states the girl was to be returned to Richard Hodges or his heirs. Richard Hodges died in 1824; and by his will, bequeathed Letty to his daughter, the plaintiff in this action.

The Court charged the Jury that the loan of a slave by one person to another, for the life of the borrower, by a parol agreement that the slave should be returned to the lender or hisheirs, at the death of the borrower, vested an absolute title to the slave in the borrower.

This charge is excepted to, and the only question to be determined is, did the Court submit the Law of the case correctly, upon the facts proven?

Counsel for the defendant below and in error, insist that the charge of the Court is sustained by the decision of this Court in Bryan vs. Duncan (11 Ga. R. 67.) And also by the doctrine ruled first by this Court in Kirkpatrick vs. Davidson (2 Kelly's R. 301,) and repeatedly recognized since, that a remainder in slaves cannot be created by parol.

The point decided in Bryan vs. Duncan was, that in a will, the word lend was sometimes construed to be equivalent to give. And in support of this principle, Hinson and Wife vs. Pickett and Myers, adm'r, vs. Pickett (1 Hill's Ch. R. 35,) was relied on.

But what was the reason given in both of these cases, for holding that in those wills the word lend meant gift? It was because "the testator evinced a clear intention to part with the entire dominion over the party bequeathed. After his death, the property never could have reverted to his executors. A final disposition of it is made by the testator". Such is the language of this Court in Bryan vs. Duncan.

And in the case in Hill, Judge O'Neall says: "the term lend, when used in a bequest, is generally equivalent to give. In some special cases, it has its appropriate meaning: as in Baker vs. Baker & Red, decided by this Court in December, 1831. But in such cases, there is something which shows that the testator did not intend the legal estate to pass to the legatee. In the will under consideration, the testator has not manifested any such intention; he uses the word to pass from him the entire property in the chattel; and it is worthy of remark, that he uses the word, (lend) not in relation to the life-estate, which he had created, as he supposed, for his daughter, but also to the absolute estate in remainder, which he also supposed he had created in favor of her children.

The testator parts with the entire dominion in the prop-erty; and it is absurd to say, that an estate which can never revert, can be a loan, which implies that the use of the thing is parted with for a limited time, or for a special purpose, and the right of property remains in the lender. It is therefore clear, that the word lend, in this will, must be considered as synonymous with give".

The cause of the defendant cannot derive much aid from these precedents. First, this is not a will, but a gift, inter vivos; and secondly, so far from the lender's manifesting any intention to part with the title to this property, it is stipulated, expressly, that it shall be returned to him or his heirs, at the death of Mrs. Terrell.

Is this an attempt by Richard Hodges, to create, by parol, a remainder, in personal property? What is a remainder? The remnant of an estate, limited to arise immediately on the determination of a precedent particular estate. Read the testimony of Sarah Smith and George C. Hodges, and I am quite sure that it never would occur to any legal mind that Richard Hodges, by the loan which he made of Letty to Mrs. Terrell, for life, intended to create a new estate in this negro, in himself, at the death of his mother-in-law. And this he would do, in legal contemplation; provided it were a remainder. One of the rules regulating remainders is, that they must pass out of the grantor, at the time the particular estate is created. And yet, Mr. Terrell, the defendant, declared, at the time that Hodges parted with the girl, that he had no claim on her, and that his wife only wanted her as a loan; and that he would return her at the old lady's death.

It has never been decided by this Court, that a reversion, in personal property, could not be created by parol; although, from the use of that word, in the first opinion delivered upon this subject, (Kirkpatrick vs. Davidson, p. 302,) incautiously perhaps, it may be inferred that the Judge who wrote it out, supposed, at the time, that the rule applied to reversions as well as remainders. Be this as it may, we are clear that this is neither a remainder or reversion.

We have attempted to show that this is no remainder.

Is it technically a reversion? What is a reversion? It is the return of an estate to the grantor and his heirs, after the grant is over. But here no estate, as we shall presently see, ever was granted; but a mere gratuitous permission to Mrs. Terrell to use the servant for a...