Broadwater v. Darne

• Decision Date: 31 January 1847
• Citation: 10 Mo. 277
• Parties: BROADWATER v. DARNE.
• Court: Missouri Supreme Court

10 Mo. 277

BROADWATER

v.DARNE.

Supreme Court of Missouri.

January Term, 1847.

ERROR TO CALLAWAY CIRCUIT COURT.

LEONARD & HARDIN, for Appellants. 1st. The action of replevin is a proceeding in rem, and cannot be maintained unless the defendant be in possession of the property sought to be replevied at the commencement of the suit. 1 Chitty's Pl. 185, § 2, title Replevin; Rev. Stat. title Replevin; Doe, Ex'r Ray, v. Huntingdon, 6 East, 286; Sharp v. Whittenhall, 3 Hill, 576. 2nd. The testimony offered by the defendant on the cross-examination of plaintiff's witness, Thomas J. Minor, and rejected by the court, was improperly excluded. The gross inadequacy of the price, the fact that even this sum was only nominally paid, and that after the pretended sale, Broadwater denied to the plaintiff that he had ever sold him the slaves, and that plaintiff assented to this, taken in connection with the direct evidence that Broadwater was intoxicated when he signed the bill of sale, are all circumstances to show that the conveyance was obtained from a man deprived by drunkenness of the capacity of managing his affairs, while the implied admisssion of plaintiff, that he never bought the slaves from Broadwater, was a direct contradiction of the fact upon which he relied for his title to the property. 3rd. The testimony of Mrs. Whaley, which the defendants offered and the court rejected, ought to have been received.

Although not sufficient of itself to establish that plaintiff, after his brother-in-law's Jeath, had surrendered to his sister and her children, this right to the slaves that he had acquired by the bill of sale, it was legal evidence for that purpose; it showed him to be under the strongest moral obligation to restore the slaves to his widowed sister and her children--and when taken in connection with his acknowledgment that the slaves belonged to them and not to him, was almost conclusive evidence of the fact. 4th. The evidence of John Scott, of plaintiff's acknowledgment that the slaves belonged to the defendant and her children, ought not to have been rejected. The principal question in the issue was whether the slaves were the property of the plaintiff, and the plaintiff's direct admission that they did not belong to him, was here excluded. 5th. The plaintiff's 6th and 16th instructions are erroneous; although one be in the peaceable possession of property and another wrongfully dispossess him, yet the first possessor cannot without right to the property, recover the possession from the wrong doer, by replevin--to this action, property in the defendant, or even in a stranger, has always been a good plea, but if the plaintiff's doctrine be correct, it is no bar in all that class of cases where there has been a wrongful taking. Butcher v. Potter, 1 Salk. 93; Harrison v. McIntosh, 1 Johns. R. 380-384; Rogers v. Arnold, 12 Wend. 30; Prosser v. Woodward, 21 Wend. 205; Ingraham v. Hammond et al. 1 Hill 339; Sharp v. Whittenhall, 3 Hill, 576; Brown v. Webster, 4 N. Hamp. R. 500; Whitwell v. Wells, 24 Pick. 25. 6th. The plaintiff's 9th and 11th instructions are also clearly erroneous. 7th. A contract entered into by a party so intoxicated as to be incapable of managing his affairs, is void, and the defendant's 3rd instruction ought to have been given. Chitty on Contracts, 139; Story on Contracts, 17, 18; Fenton v. Holloway, 1 Stark. 126; Pitt v. Smith, 3 Camp. 33; Williams v. Inabit, 1 Bailey, 343; Reynolds v. Waller, 1 Wash. Va. R. 164; Arnold v. Hickman, 6 Munf. 17. 8th. The defendant's 4th and 5th instructions ought to have been given. 9th. Fraud avoids all acts, and gross inadequacy of price is evidence of fraud, and upon this ground the defendants were entitled to their 6th and 7th instructions. Fermor's case, 3 Co. R. 77; Borden v. Fitch, 15 Johns. R. 144. 10th. Under our statute, the defendant's plea put the plaintiff upon proof of his title to the property, and therefore the court ought to have given the defendant's 8th instruction. 11th. The defendant's 9th and 10th instructions assert what is admitted to be law, and there was evidence before the jury either of a gift or a sale of the slaves to the defendant, one or the other, and whether it was sufficient or not, was for the jury and not for the court to decide.

TODD, ANSELL & SHELEY, for Defendant. 1st. That the action of replevin to recover possession of property will lie when the right to it is immediate, and if such right is proven, a perfect title to the property is not requisite. See Rev. Code, title Replevin. 2nd. The defendants, to impeach the title, presented by deed and delivery under it to plaintiff, must show themselves or one of them to claim as creditors to the maker, or as purchaser from the maker or a personal representative, as administrator, &c., or to have had paramount title before date of deed. Osborne v. Moses, 7 Johns. 161; 4 Bibb, 65, 70; 16 Johns. 189; 1 Story, § 371; 2 Littell, 12; Statute, title Fraudulent Conveyances. 3rd. That a tortious taking or detainer, without either of such titles, forbade the defendants from any defense against the deed of plaintiff so as to permit a recovery by them on the score of title or possession. 7 Johns. 140; 3 Wend. 280; 14 Johns. 84; 8 Johns. 432; 1 Wend. 109; Marshall v. Davis, 12 Wend. 30; Rogers v. Arnold, 3 Hill, 348; Barrett v. Warren, 1 Hill, 302. 4th. The sale of the negroes from Broadwater to Darne, being evidenced by deed, it cannot be impeached, changed, explained or contradicted by parol evidence. 2 Starkie, 544, title Parol Evidence, and notes; Morris v. Morris, 2 Bibb, 311; Cozens v. McGee, 2 Bibb, 321; Greenl. Ev. title Parol, 327; Rev. Stat. Frauds, &c. Parol evidence can only be introduced to show fraud in the execution of the instrument. Inadequacy of price is not sufficient to avoid a deed. 1 Story, §§ 244 to 247; Chitty on Contracts, 7, 8; Burrows and another v. Alter and another, 7 Mo. R. 434; Dorr v. Munsell, 13 Johns. 430; Dale v. Roosevelt, 9 Cowen, 307; 1 Littell, 62: Chitty on Contracts (new ed.) 412. 5th. To avoid a deed on account of drunkenness of maker, he must have been so drunk at the time of the execution of the deed, that he did not know what he was doing. 1 Story, § 230 to 232, and notes; 2 Kent's Com. 452, and notes; Campbell v. Ketchum, 1 Bibb, 406; 6 Munford, 15; 8 Vesey, 12; 2 Starkie, 326, title Drunkenness. 6th. The defendants are mere trespassers, without color of title, and the verdict is for the right party, and this court will not reverse for error committed by the court below.

SCOTT, J.

This was an action of replevin for six slaves, instituted by Darne against Margaret Broadwater and her son J. S. Broadwater (the appellants), in the Callaway Circuit Court, in September, 1844. The declaration contained two counts, one for an unlawful taking, and the other for an unlawful detention of the slaves. The cause was tried upon the general issue at the April term, 1845, when the plaintiff (the appellee), had a verdict and judgment, from which the defendants have appealed to this court.

Upon the trial, the plaintiff claimed the slaves under a bill of sale, dated in Virginia on the 25th February, 1825, from Wm. E. Broadwater, the husband of Margaret Broadwater, and father of John S. Broadwater, defendants and appellants, purporting to have been given in consideration of $400 paid by the plaintiff, and gave evidence that Wm. E. Broadwater resided in Virginia until 1830, when he died; that Margaret Broadwater, who was plaintiff's sister, went with her children to reside with him in 1825, after the execution of the bill of sale; that in 1833, she and her children removed with the plaintiff to this State, and resided with him until 1840, when they went to reside on a farm by themselves, taking with them some of the slaves embraced in the bill of sale. It was proved that the slaves went to, and remained with Darne, after the execution of the bill of sale, and that his possession continued. Margaret Broadwater resided with her brother until 1840; the slaves in controversy were in possession of Darne until about the first of May, 1844, when they left his service and were found at the house of Mrs. Broadwater. The sheriff testified that in May, 1844, a search warrant was placed in hands by Darne, the plaintiff, to search for the slaves sued for on the farm of Mrs. Broadwater. Then he went and found the slaves in Mrs. Broadwater's house above stairs, and brought them to the court-house of Callaway county, before 'Squire Overfelt, by whom the search warrant had been issued--that the search warrant was dismissed, and then a writ of replevin was put in his hands, and was served on the negroes at the court-house; he took the slaves to his house, where they now are and have been -- the defendant, J. S. Broadwater, his mother being from home, delivered up the slaves under the search warrant. Darne and his counsel informed the sheriff that they did not like the first writ of replevin, and that they would dismiss it and issue another. The first writ was served on the 3rd June, 1844, and was dismissed on the 16th September following; on the next day a second writ was placed in his hands, and it was served on the slaves then in his possession.

Upon cross-examination of one of plaintiff's witnesses, the defendant offered to prove that the $400, pretended to have been paid for the slaves embraced in the bill of sale, was not one-fourth of their value--that the plaintiff never paid this consideration, and that some time after the execution of the bill of sale, Broadwater declared in plaintiff's presence that he had never sold him the slaves, to which the plaintiff assented. This evidence was objected to by the plaintiff and rejected by the court, to which exceptions were taken.

The defendants then went into their case and offered in evidence the deposition of Mrs. Whaley, and read from it evidence that she saw plaintiff on his way to Broadwater's; that he said he was going there...