Hepburn v. Dundas

• Decision Date: 07 March 1856
• Citation: 54 Va. 219
• Court: Virginia Supreme Court
• Parties: HEPBURN & als. v. DUNDAS & als.

54 Va. 219

HEPBURN & als. v. DUNDAS & als.

Supreme Court of Appeals of Virginia.

March 7, 1856

(Absent ALLEN, P.)

1. A deed of emancipation sets the slave free upon the payment of a certain sum, and the interest thereon, and provides that a receipt in full for the payment shall be taken as complete testimony of such discharge. The payment of the money may be inferred from circumstances; and it is not essential to produce the receipt.

2. There are three negroes, children of the same mother, born slaves, and the mother and children are afterwards emancipated. One of the three dies, having acquired real estate, intestate and without children. The mother is dead. The other two take the estate as heirs of the deceased sister.

3. Prior to the act, Code, ch. 177, § 14, p. 673, interest could not be allowed by a jury in an ejectment upon the profits and the jury having allowed such interest it is mere surplusage, and the judgment will be for the principal sum and interest from the date of the verdict.^[a1]

This was an action of ejectment in the Circuit court of Alexandria county, instituted in April 1848, by the lessee of Moses Hepburn and Arthur Waring and Julianna his wife, persons of color, against James H. Dundas and others claiming as heirs at law of William Hepburn deceased, to recover a tenement in the city of Alexandria. The plaintiffs Moses and Julianna claimed as the brother and sister of Letty, a woman of color and as such her heirs at law, to whom the property was devised by William Hepburn. The facts are stated by Judge SAMUELS in his opinion. The defendants demurred to the evidence; and the court below rendered a judgment upon the demurrer in favor of the defendants. And thereupon the plaintiffs applied to this court for a supersedeas, which was allowed.

The case was elaborately argued by Wellford and Morson, for the appellants, and H. Winter Davis, for the appellees.

SAMUELS J.

This is an action of ejectment, brought before the Code of 1849 was enacted. It is therefore incumbent on the plaintiff to sustain his action by proving a right of entry in his lessors at the time the action was brought. The only evidence offered on the trial was that of the plaintiff; and to this the defendant demurred. We must, therefore, regard as fact every thing which was directly proved by the testimony, or which the jury might have fairly inferred from it.

It must, therefore, be taken as true, that the property sued for by the plaintiff and that held by the defendants is the same property. That William Hepburn had title in fee to the premises, and that he held possession, claiming such title from the year 1796, at least, until his death in the year 1817. That by his will he devised the same to Letty sometimes called Letitia Hepburn, a woman of color, and a bastard. That Letty, by her guardian, or by her husband, had possession of the property from Hepburn's death until her own death in 1823 or 1824, after having had living issue, which died in her lifetime. That Letty's mother being dead, Moses and Julianna, lessors of the plaintiff, are the bastard brother and sister of Letty, and the only surviving issue of Letty's mother. That Grymes, the husband of Letty, held the property as tenant by the curtesy until his death in 1834. The question of capacity in Letty, Moses and Julianna respectively, to take or transmit the inheritance, turns upon the same facts. It appears that they were the children of Esther, a slave, the property of William Hepburn, and were thus born slaves. That Hepburn, on the 1st of February 1816, conveyed Esther and her said children to Hannah Jackson, a woman of color, the sister of Esther; (a question is made, to be considered hereafter, whether Hannah Jackson had capacity to acquire title to these slaves, or to emancipate them.) That Hannah Jackson executed a deed of emancipation, dated February 12, 1816, in due form of law, whereby she set free Esther and her children, if she had capacity in law to acquire and manumit slaves. In regard to this question of capacity, it appears that Hannah Jackson had been the slave of one John Harper. That Harper, on the 23d of October 1810, in consideration of one hundred and ninety-six dollars, sold and by deed conveyed Hannah to one William Goddard for the term of ten years, and no more; and at the end of that time, set her free; and also set free any child or children of Hannah, born during her servitude. This deed was executed in form to operate as a deed of prospective emancipation. On the 24th of October 1810, Goddard executed a deed of emancipation, setting Hannah free whenever payment of the said sum of one hundred and ninety-six dollars, and the interest thereon, should be made; and providing that the receipt in full for the payment should be taken and admitted as complete testimony of such discharge. These deeds were duly recorded December 2d, 1811. It is shown by the evidence that Hannah Jackson acted as a free woman in buying and holding property. The evidence is not clear as to the precise time at which she began so to act; but from the fact that the deeds of emancipation from Harper and Goddard respectively, were withheld from the record from October 1810 to December 1811, and then recorded, and that Hepburn, on the 1st February 1816, sold Esther and her children to Hannah, and that no question has been made by those interested to make one about the status of Hannah or of Esther and her children, it may be inferred that every thing was rightly done in regard to them on the 1st February 1816. There is no force, I conceive, in the objection that the payment of the hundred and ninety-six dollars and its interest could be proved only by Goddard's receipt. The deeds of emancipation and registry thereof, and the fact of payment, completed the manumission; and the payment is sufficiently shown by the circumstances above stated, which occurred soon after the date of Goddard's deed. The provision in regard to the receipt was intended for the benefit of the freed woman; to give it a weight and force beyond that usually given to a mere receipt; to make it complete testimony. I am of opinion that Hannah Jackson was a free woman on the 1st of February 1816; that Hepburn's conveyance of that date passed to her his title to Esther and her children; and that her deed of the 12th February 1816 was effectual to emancipate them.

Holding then that Letty had capacity to take and transmit the inheritance by descent, that Moses and Julianna were of capacity to take the inheritance if the law cast it upon them, the bastard brother and sister of Letty, the question is presented whether the law of descents did so cast the inheritance?

If the estate in controversy had been within the jurisdiction of Virginia, and subject to her laws at the time of Letty's death, there would have been no reason to doubt the right of Moses and Julianna, the bastard brother and sister, to succeed to her estate. The statute of October 1785, 12 Hen Stat. p. 138, prescribes the course for descents of real estate. Section 16 enacts that " bastards also shall be capable of inheriting or transmitting inheritance on the part of their mother in like manner as if they had been lawfully begotten of such mother." The statute of October 1785 has been repeatedly re-enacted in Virginia with some modifications; the clause above cited, however, has always been re-enacted without change, and is now...