Haile v. Hill

• Citation: 13 Mo. 612
• Parties: THOMAS HAILE v. ROBERT J. HILL ET AL.
• Decision Date: 31 October 1850
• Court: Missouri Supreme Court

13 Mo. 612

THOMAS HAILE

v.ROBERT J. HILL ET AL.

Supreme Court of Missouri.

October Term, 1850.

APPEAL FROM MADISON CIRCUIT COURT.

SCOTT & FITZGERALD, for Appellant. 1. The Circuit Court erred in sustaining the demurrer of the plaintiffs below to the fifth plea of the defendant below. 2 Chitty's Pl. 438; 1 Saund. 92 and note 3; 1 Mo. R. 202, McKnight v. Taylor; 1 Starkie's Ev. 221, 223, also 222, and notes, also 219 and notes. 2. The Circuit Court erred in permitting to be read to the jury as evidence a paper purporting to be the will of Ferguson Haile, together with the papers accompanying it. Story's Confl. of Laws, p. 391, § 465, also, p. 394, § 468, also, p. 215, § 260, also p. 527, § 636; 2 Har. & Johns. 191, 195; 3 Gill & Johns. 234, 242; Civil Code of 1825, p. 504, art. 1567, also p. 606, art. 1577, also, p. 506, art. 1580-81, also, p. 510, art. 1588; 5 Mo. R. 403, Haile v. Palmer and wife; 1 Starkie's Ev. 184, note 3; 8 Mo. R. 421, Bright et al. v. White; Civil Code, p. 478, arts. 1480, 1481, 1482, also, pp. 516, 518, arts. 1609 to 1616; Story's Confl. of Laws, pp. 396-7, § 471; Buller's N. P. 298. 3. The Circuit Court erred in permitting to be read in evidence to the jury two books purporting to be general digests of the acts of the Legislature of Louisiana, printed in 1828, also, two other books purporting to be the acts of the first and second sessions of the first Legislature of said State, printed in 1846-47, also, a book purporting to be the “Civil Code” of said State, printed in 1838, also a paper purporting to be an act headed “Civil Code,” approved March 31st, 1808. 7 Mo. R. 22, Hite v. Linhart; 2 Starkie's Ev. 331, note 2; 1 Starkie's Ev. 248, 249; 2 Starkie's Ev. 331, title Foreign Laws; 1 Peters' R. 229, Consequa v. Willings; 1 Johns. R. 385, Kinney v. Clarkson; Story's Confl. of Laws, p. 224, § 269; Rev. Code of 1845, pp. 466-7; 8 Mo. R. 421, 426, Bright et al. v. White; Story's Confl. of Laws, p. 201, § 242; also, p. 203, § 243; also, p. 219, § 263; also, p. 232, § 278; also, p. 299, § 362 and forward to § 557; 9 Mo. R. 56, Broadhead v. Noyes; also, 157, Dorsey v. Hardesty. 4. The Circuit Court erred in permitting to be read to the jury as evidence a paper purporting to be, the deposition of Elizabeth Haile, and in refusing to permit the defendant below to prove her to be interested in the suit. 1 Dallas' R. 273, 275; Starkie's Ev. 102, 103, 104, and notes. 5. The Circuit Court erred in permitting to be read to the jury as evidence of the confessions of Thomas Haile, a paper purporting to be a transcript of a record on petition had in the State of Louisiana, and in refusing to permit the defendant below to make and file his affidavit that he had not instituted said suit or caused it to be instituted. Peak's Ev. 56; Salk. R. 154; Buller's N. P. 236-7; 1 Starkie's Ev. 285-6 and note; 7 Tenn. R. 3; Roscoe's Ev. 105; 10 Mo. R. 621, Hall v. Guthrie; Peak's Ev. 54; Buller's N. P. 235; 6 Mo. R. 435, Keith v. Wilson; 1 Mo. R. 744, Bank of Mo. v. Scott; 2 Starkie's Ev. 42 and notes; 4 Mo. R. 82, Cozzens v. Gillispie; Roscoe's Ev. 57; 1 Barn. & Ald. 182, Hennel v. Lyon. 6. The Circuit Court erred in permitting to be read in evidence to the jury so much of a certain transcript of a record and proceedings of a suit heretofore determined, in which Martin and Lucy Palmer were plaintiffs, and Thomas Haile was defendant, as related to the names of the parties, the title thereof, and how it had terminated. 1 Starkie's Ev. 214; 2 Starkie's Ev. 214, and cases cited; Gilbert's Law Ev. 31. 7. The Circuit erred in refusing to permit the defendant below to read in evidence to the jury the record last referred to, and after the plaintiffs below had read portions of the same, the said court erred in refusing to permit the said defendant to read the rest and residue of the same. 2 Mo. R. 65, Hempstead v. Stone; 1 Starkie's Ev. 222; 8 Mo. R. 120, Offut v. John; 2 Starkie's Ev. 707, 708, & c.; 1 Chitty's Pl. 472; 2 Story's R. 733; 1 Chitty's Pl. 222; 1 Mo. R. 482, Chamberlin v. Smith; Starkie's Ev. 214 and note n, also 215, 222, 223; 5 Esp. Ca. 59; Peak's Ev. 29; Buller's N. P. 227, 228, 235; Peak's Ev. 34, 35; 1 Starkie's Ev. 188-9, note 2. 8. The Circuit Court erred in giving the seven instructions prayed for by the plaintiffs below, as preserved in the bill of exceptions. As the instructions given by the court relate to and are mostly connected with the errors referred to, the court are referred to authorities already cited in this brief. 9. The Circuit Court erred in refusing to give eleven of the twelve instructions prayed for by the defendant below.

COLE, for Appellant. 1. The court below erred in excluding the 5th plea of appellant. 2. That instructions 6 and 7 confess the fact, and decide that the will of Ferguson Haile did not disinherit Thomas Haile, appellant. Taking this decision of the court to be true, and also as an admission of appellees, the appellees cannot recover in this action, having neither an exclusive right of property, nor a right to immediate possession in the property in suit. 3. The court below permitted the agreement of the parties to go in evidence to the jury on the part of appellant, but erred in instructing that evidence away. If it was legal evidence it should have remained with the jury, if otherwise, it should have been withdrawn. Under the instruction it was evidence and not evidence--an embarrassing affair for the jury, and a wrongful one for the appellant. 4. There were two grounds of legitimate defense to the plaintiff's action. First, That appellant was an heir of Ferguson Haile by the laws of Louisiana to the slaves in controversy, and entitled to a share thereof with the other heirs. The action of detinue could not be sustained under such a state of facts, and the plaintiff would have been non-suited. The appellees have been non-suited. The appellees have mistaken their remedy, if indeed they have rights. Secondly, The deed of compromise entered into by appellant and appellees, before the commencement of this action, contains technically a contract, founded upon a valuable consideration, by which the appellant acquired an interest in these slaves, and at the same time acquired a right to retain the possession thereof until the agreement was complied with according to the true intent and meaning thereof. This state of things pre-existing, precludes a recovery in this action. 5. Lucy Haile, widow, had an unfettered right under the will of her husband, to dispose of the estate as she pleased. One mode of alienation known to the law is that by the judgment of a court of record. The judgment of Thomas Haile against her for the property in suit, is as operative against her and those claiming in this suit, as if she had adopted any other mode of alienation, to-wit: by sale, gift, grant, &c. 6. The agreement of the parties to the suit contains a clear and decisive admission of right in Thomas Haile to one-sixth part as heir, and also to payment for money advanced, services rendered, &c. The office of the referees was not to ascertain rights, but to provide the way and means of compensation by money, slaves, &c., to Thomas Haile, out of the estate.

GARLAND, FRISSELL & JOHNSON, for Appellees. The court did not err in admitting all the volumes of Louisiana law, offered by the plaintiffs. By them the court must presume (as nothing appears to the contrary) that it was shown that the will of Ferguson Haile was properly proved and admitted to probate. It is not for this or any other court to attack that will collaterally--having been admitted and established by the proper tribunal, it must stand in full force and virtue as the will of Ferguson Haile, until annulled or reversed by the same or an appellate court. See Gaines' case, 2 Howard, 619: A court of equity will never put itself in the place of the arbitrators, and unless an award has been actually made, a court of equity will not decree performance of the intention of the arbitrators.” See Watson on Arbitration and Award, 229, and authorities there cited; Milnes v. Grey, 14 Vt. R. 406 et seq; Blundell v. Brittargh, 17 Vt. R. 241.

BIRCH, J.

In the year 1831, Ferguson Haile died in the State of Louisiana, having previously made a will, whereby after reciting that he had given to his two children by a former marriage (naming them, and the plaintiff in error being one) all he was able or intended to, his remaining property is devised to his wife, Lucy, and her children (by him), to be used and disposed of by her for their maintenance and education during her life, and to be equally divided amongst them at her death. The will was admitted to probate, and the widow administered on the estate, the controversy concerning which will be noticed hereafter. In the spring of 1832 the defendant below, who was one of the children of the first marriage, took certain negroes thus devised from the possession of his stepmother and her then husband, Martin Palmer, with whom she had recently intermarried, brought them to this State, and has assumed ever since to hold them as his own. Palmer and his wife followed the defendant to Missouri, and commenced an action of detinue against him for the negroes now again in suit; the declaration reciting, and one of the counts conforming to each of the said relations, that Mrs. Palmer sued as well in her own right as that of trustee for her children, who were plaintiffs below and appellees here. That suit was a long time on the docket of the Circuit Court, came to this court, was sent back, partially compromised, and appears to have been finally wound up upon the record by an entry of a general judgment against the plaintiff.

The first and most material question, therefore, is the one which is raised by the action of the Circuit Court, in sustaining the plaintiff's demurrer to the defendant's plea of former recovery; and as that plea made profert of and was determinable alone by the terms of the will, as denoting...