Dean v. Davis

• Decision Date: 31 July 1848
• Citation: 12 Mo. 112
• Parties: DEAN v. DAVIS.
• Court: Missouri Supreme Court

12 Mo. 112

DEAN

v.DAVIS.

Supreme Court of Missouri.

July Term, 1848.

APPEAL FROM WASHINGTON CIRCUIT COURT.

COLE, for Appellant.

1st. The appellee had neither a property general, nor special in the slaves, Stephen and John, that would authorize him to recover in an action of trover. 2nd. A special property can only arise from possession, and the appellee never at any time had possession of said slaves. 3rd. A general property is a perfect right to the thing, coupled with possession, or an immediate right to the possession. 4th. It will be contended, that the failure of Jones to pay the mortgage debt did not nor could, under the peculiar phraseology of the mortgage deed, vest in appellee any title whatsoever to the slaves in issue. 5th. If there was, however, a right vested in consequence of Jones' default, yet the foreclosure of the mortgage by Davis, and judgment thereon, merged that right in a higher security, and the present action cannot be maintained. 6th. To divest Jones' right to the possession of the slaves under the mortgage, it was necessary to foreclose and to request a delivery in order to their sale. 7th. It will be insisted that the instrument called a mortgage, although it purports in its inception to convey title, yet in its subsequent part so qualifies the first by creating a trust in Davis so specific and precise in its character, that Jones' title cannot be divested, unless by a compliance with said mortgage according to its tenor and effect. 8th. There is no sufficient evidence of a conversion by appellant, 9th. It is insisted that the mortgage from Jones to Davis was without consideration, intended to defraud Jones' creditors, and therefore void, and that the Circuit Court erred in excluding from the jury the evidence offered by appellant to prove the fraud. 10th. It will be insisted that appellant's title derived through the warrant of distress of the United States, against Jones, a defaulting and insolvent debtor, is better than a title to the slaves deduced from the mortgage although such mortgage was not tainted with fraud. 11th. The sheriff in his return on the special fi. fa. for the sale of the slaves in issue, returns that Stephen is not found but is silent as to John, non constat but he was found, and the verdict and judgment are consequently erroneous. 12th. The instructions given for plaintiff below were erroneously given by the court. 13th. The court below erred in excluding the evidence offered by appellant to prove fraud, the decision being adverse to an instruction given by the court, that fraud was a bar to plaintiff's recovery. 14th. The defendant's motion for a new trial, under the law and facts of the case, ought to have been granted, and the court erred in overruling it.

FRISSELL, for Appellee. The defendant in error insists that in this case the court below committed no error. That the warrant of distress under which the plaintiff in error claims title, being in derogation of common right, must be construed strictly, and its operation is not to be extended by construction. That the recording the levy would create no lien on personal estate, because the law regulating the warrant of distress does not provide for recording such levy. That there was no evidence given or offered tending to show any fraud in the mortgage to Davis, either on the part of Jones or Davis. That the attempt to prove a failure of consideration was fully rebutted (if any rebutting testimony were necessary) by the judgment of foreclosure of the mortgage. 3 U. S. Statutes at Large, 592-3-4; 9 Peters, 8, 19, 21, opinion of Chief-Justice Marshall.

MCBRIDE, J.

Davis brought his action of trover in the Washington Circuit Court, against Dean, to recover damages for the conversion of two slaves. Plea, not guilty: judgment for plaintiff: motion by defendant for a new trial, which was overruled, exceptions taken and the case brought up by appeal. On the trial, in support of the issue the plaintiff read in evidence a mortgage executed by Augustus Jones and wife to Timothy Davis, on the 19th June, 1838, duly acknowledged on the same day and admitted to record on the 18th July, 1838, in the recorder's office of Washington county; by which the said Jones and wife conveyed the said slaves, together with a large amount of other property, to secure Davis in the payment of $30,000. The mortgage is in the usual form of such instruments, with the exception, that it provides the slaves shall be reserved until the other property be sold, and then sold if an amount sufficient has not been made out of the other estate to satisfy the mortgage, debt, and costs; and that the slaves are to remain in possession of Jones until their sale shall become necessary, as before provided. This mortgage was foreclosed by a petition filed for that purpose on 5th September, 1843; upon which judgment was had on the 28th October, 1845; execution on the judgment 3rd December, 1845, upon which, and two subsequent executions, the real-estate conveyed in the mortgage was sold, and produced the sum of about $600; there was also sold one negro man, named in the mortgage, for about $50--the other negroes not found by the sheriff.

Evidence was also given tending to prove that the negroes sued for, were in the possession of Jones, the mortgagor, from the year 1836 to 1842 or 1843, after which they were in the possession of Dean, the defendant. That one of the negroes was worth from $500 to $700, and the other worth from $1,200 to $1,500--that a demand was made of the defendant, Dean, for the negroes, prior to the institution of this suit, who refused to deliver them to the plaintiff's agent.

The defendant gave in evidence a record of the District Court of the United States, with the indorsements and certificates thereon--being a distress-warrant issued by the solicitor of the treasury against Augustus Jones and his securities, dated 25th May, 1837, recorded in the office of the District Court of Missouri on the 22nd July, 1837. By virtue of which the marshal of said district on the 15th November, 1838, levied upon the negroes in question, and filed his said levy for record in the office of the clerk of the court for said district, on the 3rd May, 1839; and sold said negroes on the 11th June, 1839; when James M. White became the purchaser at the sum of $1,539, and received possession of said slaves.

Next a mortgage from James M. White to the county of Washington, of certain real-estate, and also the negro slaves in controversy, dated 6th August 1842, to secure a debt due by Jones, as principal, and White, Dean and McCabe, as securities, to the county, for the sum of $2,600, and interest thereon, the mortgage duly acknowledged and recorded. Then an order from the county court of Washington county, made at the November term, 1843, directing the sheriff to levy and make the amount of the mortgage debt, out of the property therein specified; and the return of the sheriff showing that, at the sale of the slaves in controversy, John Dean became the purchaser thereof at the price of $700. Sale took place 29th December, 1843.

This was all the evidence given in the cause. The defendant offered to read in evidence, on the trial, the record and proceedings of a former suit brought by the plaintiff, Davis, against Jones, to show that the mortgage from Jones to Davis was fraudulent, and intended to defraud creditors, and that Jones did not owe the debt intended to be secured thereby; but the court refused to permit the same to be read, and the defendant excepted.

The plaintiff asked, and the court gave the following instructions to the jury:

1st. That the distress-warrant given in evidence is not a lien upon...