Gabriel Moore's Adm'r v. Minerva

• Decision Date: 01 January 1856
• Parties: GABRIEL MOORE'S ADM'R v. MARY MINERVA AND HER CHILDREN.
• Court: Texas Supreme Court

17 Tex. 20

GABRIEL MOORE'S ADM'R

v.MARY MINERVA AND HER CHILDREN.

Supreme Court of Texas.

1856.

The case of Womack v. Womack, supra, cited in answer to the first point in this case.

Suit by a negro woman and her three children, by their next friend, for their freedom, and for the value of the services of the mother: Held, that there was no misjoinder of parties.

It is common in chancery, where several claim under the same title (to sustain a suit in the name of all as plaintiffs, and), to decree to each one his particular interest; and our proceeding by petition is analogous to a proceeding in chancery.

The objection that the petition does not aver what were the laws of Ohio, where the deed of manumission was executed, is not well taken. If, by the laws of Ohio, such manumission was forbidden, the fact should be shown by those impeaching it; because a restriction on the right of the owner of property to dispose of the same at his pleasure must be affirmatively shown, before his right to do so can be restrained. (The master had taken his slave to Ohio and manumitted her.)

There is nothing in our laws which would cause a slave emancipated by deed to revert to the condition of slavery, by coming into this state with her former owner.

The laws which forbid the immigration of free negroes into this state, and provide for their removal, do not incapacitate such free negroes from suing for their freedom, before it has been forfeited by proceedings under those laws.

In a successful suit for freedom, if the defendant took possession in good faith, damages (in the nature of hire) would be allowed from the time of a demand made for freedom; and, in the absence of proof of demand, from the commencement of suit.

If slaves are taken by their owner from Alabama to Ohio, and manumitted there, and are then brought into this state, in a suit for their freedom our courts will not investigate the question whether or not such manumission violated the laws of Alabama.

A deed of manumission cannot be impeached by the administrator of the grantor, on the ground that it was made to defraud creditors; the creditors alone can impeach it on such ground.

It seems that an administrator with the will annexed is chargeable with notice of the contents of the will, although it be in a particular as to which the will has no direct legal effect.

Appeal from Harrison. Tried before the Hon. W. W. Morris.

Suit by the appellees, by their next friend, against Obadiah Hendrick, administrator with the will annexed of Gabriel Moore and William A. Hill, to establish their freedom; an amendment of the petition claimed pay for the services of said Mary Minerva. The suit was commenced November 24, 1852, and the ages of the children were then seven years, four years, and six months; a fourth child, born during the pendency of the suit, was made a party by amendment.

Gabriel Moore, being at the time a resident of Alabama, in 1841 or 1842, took Mary Minerva, then between twelve and fourteen years of age, to Cincinnati, Ohio, and left her there at school, declaring at the time, in Cincinnati, his intention to educate and emancipate her. In September, 1842, he returned to Cincinnati and executed there a deed of manumission to said Mary Minerva, and had it put upon record. Again, in 1843, he returned to Cincinnati and took Mary Minerva away with him, telling witness that he was going to Mississippi, and that his address was Panola town, Panola county, Mississippi. In the spring of 1843 or 1844, Moore immigrated to Texas, bringing said Mary Minerva with him. In 1844 he died, leaving a last will and testament, in which he mentioned the deed of manumission, stating that it was on record in Cincinnati, and stated his desire that said Mary Minerva should be free, and in case of opposition thereto, from any quarter, bequeathed her to his brother, with the request that he would emancipate her. Mary Minerva had been hired out ever since, and at the date of the suit was hired to the said William A. Hill.

C. M. Adams, for appellants.

Marshall & Wigfall, for appellees.

LIPSCOMB, J.

This suit was brought by Mary Minerva to recover the freedom of herself and her children, and to recover damages against the administrator of Moore-- verdict and judgment in her favor; motion for a new trial overruled, and the administrator appealed to this court. The errors assigned are:

First. The said cause was tried in December, 1855, at a time when the district court had no power to hear and determine causes--at a time when no district court could be holden.

Second. The court erred in overruling the demurrer.

Third. The court erred in striking out the special answers of the defendant.

Fourth. The court erred in not charging the law of the case.

Fifth. The court erred in the charge to the jury.

Sixth. The court erred in overruling the motion for a new trial.

These assignments are very general; we propose, however, to take up such of them as may be regarded as presenting anything material to be discussed and decided, as presenting the grounds intended by appellant's counsel, and presented in his brief. The first ground, the authority to hold the district court at the time it was holden, has been decided and overruled, in the case of Womack v. Womack, decided a few days ago.

We propose to take up the exceptions to the petition, presented by the demurrer, the overruling of which is the appellant's. Second error assigned: That there is a misjoinder of petitioners, four persons suing together for freedom, and for damages for the deprivation thereof. This ground is not well taken, and could not be sustained under the most stringent rule of pleading. The suit is by the mother for her own freedom and the freedom of her minor children, whatever may be the style of the parties; and if there were damages to be assessed for the services of the children, it would inure to her benefit, and might well be consolidated in one judgment, as accruing for the services of herself and children.

But if the children had not been minors, it is not believed that the objection would be sustained. The parties all claiming their freedom under the same title might well unite in the action; and so far as the damages for the deprivation of their liberty is involved, though the damage would be separate and to each individual according to the proof of the value of their services, there can be a separate judgment. The judgment and decree would be in favor of each for his freedom, and the damages assessed to each. It is common in chancery, when several claim under the same title, to decree to each one his own particular interest; and our proceeding by petition is analogous to a proceeding in chancery. There is no inconvenience in such rule; it dispenses with a multiplicity of suits, which is a favored object, always to be encouraged by our jurisprudence, and is not more difficult in practice than assessing the different value of a slave and his services, in a case brought to recover a number of slaves; which has to be done in such cases, and is of frequent occurrence.

The objection that the petition does not aver what were the laws of Ohio, where the deed of manumission was executed, is not well taken....