Giboney v. Bedford

• Decision Date: 31 October 1852
• Citation: 17 Mo. 56
• Court: Missouri Supreme Court
• Parties: GIBONEY, Respondent, v. BEDFORD & KITCHEN, Appellants.

17 Mo. 56

GIBONEY, Respondent,

v.BEDFORD & KITCHEN, Appellants.

Supreme Court of Missouri.

October Term, 1852.

1. Under the new practice, where the trial is by the court without a jury, the party wishing a review of the finding of facts must make out a case, setting forth the facts he wishes found differently, and the evidence bearing upon them.

Appeal from Stoddard Circuit Court.

Geyer & Dayton, for appellants.

J. D. Cook and Delafield, for respondent.

RYLAND, Judge, delivered the opinion of the court.

This was an action under the new code for the recovery of personal property, a negro boy. The plaintiff claims that the defendants wrongfully and without leave took the negro boy from her possession and have not returned the same; and the defendants answer and deny that they unlawfully took the property of the plaintiff, but that they hold the negro boy as the property of Robert Giboney's estate, they being his administrators.

The proof for plaintiff was in part oral and part in writing, including a deed of gift to Mrs. Elizabeth Giboney of the boy in question, by her father, John B. Walker, which is as follows:

“Know all men by these presents, that I, John B. Walker, have this day given to my daughter, Elizabeth Walker, who is now married to Robert Giboney, of Stoddard county, Bloomfield, and consequently, whose name at present is Elizabeth Giboney, a certain negro boy, named Squire, supposed to be eight years old, to have and to hold the said negro during her natural life, and then to fall to her heirs, executors and administrators, and that from this day forward, my daughter, Elizabeth Giboney, is to hold the said negro boy, Squire, as her own property, and also as a gift, which I willingly give to her, as my child, in consideration of the love and affection which I, John B. Walker, her father, have for her. But in making my daughter, Elizabeth Giboney, this title to said negro boy, Squire, which she is to hold as her property alone from this day, he, the said negro boy, Squire, however, is to remain in my possession during my natural life, or until such time as I no longer require or need him or his services. In testimony,” &c.

The testimony of the witnesses for the plaintiff tended to show that the boy was considered the property of the wife by the husband; and there was testimony for the defendant tending to show acts of ownership by the husband over the negro boy in dispute.

The case was submitted to the court without a jury, without any points of law raised by either party, or without any propositions of law arising on the case, brought to the mind of the court....