Carter v. Feland

• Decision Date: 31 January 1853
• Citation: 17 Mo. 383
• Parties: CARTER, Plaintiff in Error, v. FELAND, Defendant in Error.
• Court: Missouri Supreme Court

17 Mo. 383

CARTER, Plaintiff in Error,

v.FELAND, Defendant in Error.

Supreme Court of Missouri.

January Term, 1853.

A., being about to travel abroad for his health, left his slaves with his brother, B., in Tennessee, to keep until his return, with the agreement that if he never returned, B. should become the owner of the slaves; A. remained abroad many years without being heard from, when B. gave the slaves to his son-in-law, who brought them to Missouri, and afterwards sold them to the defendant, who had no notice of A.'s claim; afterwards, A. returned and brought this suit to recover the slaves. Held,

1. The declarations of B., while in possession of the slaves, are not admissible in evidence against A.

2. In an action of trover, the measure of damages is the value of the thing converted, at the time of the conversion. Thus, A. was entitled to recover the value of a slave which died in the possession of the defendant after demand and refusal.

3. The 5th section of the act concerning fraudulent conveyances, (R. C. 1845,) which provides that a party remaining in possession of slaves five years under a pretended loan, shall be taken to be the owner as to his creditors and vendees, &c., does not apply to a loan, in another state, of slaves which the bailee afterwards brings into this state; at least not, unless the possession of the bailee, or those claiming under him, continues five years after the slaves are brought within this state.

4. The statute of limitations could not begin to run against A. until the possession of B., or those claiming under him, became adverse; which was not at least until B., by some act, assumed to himself the ownership of the slaves.

Error to Buchanan Circuit Court.

James B. Gardenhire, for plaintiff in error. 1. The declarations of James Carter were clearly inadmissible. There was no such privity between him and the plaintiff in error, as to render his declarations admissible. The plaintiff in error did not claim under James Carter, but James claimed under him. Before the declarations of a privy or agent are admissible, the privity or agency must be established by independent testimony. 2 Stark. 59. 5 Watts, 392. 2. The record shows that demand was made and suit brought, four years after the negro woman was brought to this state. The statute of fraudulent conveyances, if applicable at all to the case, could not operate until the slave was brought into this state. It is a law affecting the remedy only, and has no extra-territorial operation. It is like other statutes of limitation in this respect. Strithorst v. Graeme, 3 Wils. Rep. 145. Williams v. Jones, 13 East, 448, opinions of Lord Ellenborough and Bayley, J. Bank of Alexandria v. Dyer, 14 Pet. 141. Field v. Dickenson, 3 Ark. Rep. 409. Wilson v. Appleton, 17 Mass. 180. Byrne v. Crowninshield, 17 Mass. 55. Bulger v. Roche, 11 Pick. 36. Dwight v. Clark, 7 Mass. Rep. 515. Ruggles v. Keeler, 3 J. R. 264. 3. The facts of this case, as collected from James Carter's declarations, show a hiring, and not a gratuitous loan. The statute concerning fraudulent conveyances, therefore, does not apply. 4. The fourth instruction asked by the plaintiff in error ought to have been given. The death of the child, after demand, was defendant's loss.

Vories, for defendant in error. 1. The third instruction asked by plaintiff did not correctly state the rule as to the measure of damages, and was properly refused. 2. The fourth instruction was properly refused, because it assumed that all the main issues were to be decided in favor of the plaintiff. 3. The sixth instruction was incorrect, in assuming that James Carter could not hold the negroes adversely, without a demand and refusal. The law on this point was correctly stated in the fifth, seventh and eighth instructions given for the plaintiff. 4. The tenth instruction asked by plaintiff was properly refused. There is no exception in the statute concerning fraudulent conveyances, in favor of either persons or property absent from the state. If there were no such exceptions in the statute of limitations, it would undoubtedly apply to foreigners, as well as to causes of action arising abroad. Ruggles v. Keeler, 3 J. R. 265, and cases there cited; also 3 J. C. R. 217. Our statute of fraudulent conveyances affects the right of property, and not merely the remedy. 5. The eleventh instruction asked by plaintiff was properly refused, because there was no evidence of any hiring. 6. The declarations of James Carter, made while in possession of the negro, were properly admitted to explain the nature of his possession. Oden v. Stubblefield, 4 Ala. 40. 9 N. H. 271. 1 Greenl. Ev. 120, 189, 191. 2 Phill. Ev. 596-7-8, 601-2.

RYLAND, Judge, delivered the opinion of the court.

This was an action of trover, brought in the Buchanan Circuit Court, in December, 1847, to recover the value of a negro woman and child, which were alleged to be the property of plaintiff, and which the defendant had converted to his own use.

The defendant pleaded the general issue. Upon the trial of the cause, the plaintiff proved, that in the year 1831 or 1832, in the state of Tennessee, he was the owner of a negro woman, named Charlotte, and had her in his possession, and that she became the mother of the negro, Winny, named in the declaration; that in the month of October, 1847, the defendant was in the possession of the said negro woman, Winny, in the county of Buchanan and state of Missouri, who was about sixteen or seventeen years old, and had had the possession of her since the fall of 1844; that in October, 1847, before the commencement of the suit, the plaintiff went to the house of defendant in said county of Buchanan, and demanded of him said negro, Winny, who then had a child about six months old, and that defendant refused to give her up; that the child, since that time, died; and that Winny was worth $400 or $500. The defendant then proved, that after the possession of said negro woman, Charlotte, and her child Winny, by the plaintiff, in the year 1831 or 1832, James Carter, a brother of the plaintiff, had them in his possession in the state of Tennessee. The defendant then offered to prove the declarations of said James Carter, while he had said negroes in his possession, in reference to his right to said negroes, to which plaintiff objected, but the court overruled the objection and the plaintiff excepted. It was then proved that the said James Carter, while he so had the negroes in his possession, stated, that about the year 1831 or 1832, the plaintiff placed the said negro woman, Charlotte, and her child, Winny, in his possession, to keep for plaintiff until his return, as he was going to travel, but if he never returned, the said negroes were to become the property of said James Carter; that plaintiff then left the state of Tennessee, and did not return, until after the negro Winny was brought to Missouri; that James Carter retained possession of said negroes from the year 1831 or 1832, until 1841, when, no account having been heard of plaintiff, said James Carter claimed the negroes as his own, and continued so to claim said negroes, until they left Tennessee, because he said, that plaintiff was dead, which was generally believed to be the fact. He said that the negroes were his, by the terms of his agreement with the plaintiff, and that he would do with them as he pleased. In 1843, James Carter tried to get one Daniel Hogan, who was going to Missouri, to take the negro, Winny, along with him, and deliver her to one Richard Hogan, who then resided in Buchanan county, in the state of Missouri, and was the son-in-law of the said James Carter, but that said Daniel Hogan declined to bring said negro with him to Missouri; that in the spring of 1844, no account having been heard of the plaintiff, James Carter still had possession of said negroes, and claimed them as his own, and procured one Mathew Ferrell to bring the negro, Winny, from Tennessee, and deliver her to Richard Hogan, in Buchanan county, Missouri. The said Richard Hogan, having acquired the possession of said negro woman, by gift, from his father-in-law, James Carter, in the fall of 1844, sold her for $400, to defendant, Feland, who had no notice of the plaintiff's right or claim to said negro, Winny. It was also proved that, during all the time that James Carter had possession of said negroes, it was notorious through the neighborhood where the negroes were, that they were the property of the plaintiff, and equally notorious that they were to become the property of James Carter, if the plaintiff never returned, which was all of the evidence in the cause.

The plaintiff then moved the court to give the following instructions

1. That if the plaintiff demanded the negroes in the declaration mentioned, before the commencement of this suit, and they were his property, and the defendant refused to give them up, and appropriated them to his own use, it gives the plaintiff a right of recovery, if not precluded by other instructions.

2. If they find for the plaintiff, the measure of damages is the value of the negroes at the time of the appropriation, with interest on that amount, from the time of appropriation to the present time.

3. If they find for the plaintiff, and do not choose to give interest, they may find the value of the negroes at the time that the defendant appropriated them, adding thereto the value of the services of the negro woman, from the time the defendant so appropriated her, to the present time.

4. If the negro child in the declaration mentioned, did not die until after the plaintiff demanded, and the defendant refused to give it up, the plaintiff is entitled to recover in this action the value of the child, at the time of demand and refusal.

5. If the plaintiff placed said negro woman in the possession of James Carter, under whom the defendant claims, to be kept by the said James Carter for the plaintiff, and delivered up to plaintiff when called...