Johnson v. Walton

• Decision Date: 31 December 1853
• Parties: B. T. JOHNSON v. J. WALTON, Trustee.
• Court: Tennessee Supreme Court

33 Tenn. 258

B. T. JOHNSON

v.J. WALTON, Trustee.

Supreme Court of Tennessee.

December Term, 1853.

FROM SUMNER.

This was an action of replevin in the circuit court of Sumner, brought by Walton as trustee for Frances George, to recover a slave conveyed to him by deed executed by said Frances while Frances King, and Hugh T. George, in contemplation of marriage, in trust for the use and benefit of said Frances. The slave was levied upon some time after the marriage, by the plaintiff in error as an officer, under an execution against George. The marriage settlement, it seems, was executed by the parties before the marriage, and acknowledged and registered a few days thereafter. The recovery was resisted by the defendant in replevin, on the ground of certain irregularity in the probate and registration of the instrument, which are stated in the opinion. There was verdict and judgment in the court below (Judge Baxter presiding) for the trustee, Walton; from which Johnson appealed in error to this court.

Guild, for the plaintiff in error; Soloman, for the defendant in error.

MCKINNEY, J., delivered the opinion of the court.

This was an action of replevin. It appears, from the bill of exceptions, that on the 27th of October, 1850, Frances King, then a feme sole, and the owner of several slaves and other personal property, in contemplation of marriage with Hugh T. George, made conveyance (in which her intended husband joined) of said slaves and property to Josiah Walton, the plaintiff below, in trust for her separate use and benefit. The marriage took place on the same day, but subsequent to the execution of the deed of settlement to wit, 27th of October, 1850. The deed purports to have been acknowledged and registered in Sumner county, where the parties then resided. The supposed acknowledgment of the deed was made three days after its execution, and after the marriage. The certificate is as follows:

“ State of Tennessee, Sumner county:

Personally appeared before me, John L. Bugg, clerk of the county court of said county, Frances King and Hugh T. George, the bargainors, and who acknowledged that they made and executed the within marriage contract, and for the purposes therein set forth. Witness my hand at office, this 30th October, 1850.

JOHN L. BUGG, Clerk.”

On the foregoing certificate of acknowledgment the deed was admitted to registration, on the 4th of November, 1850. On the 5th of June, 1852, Benjamin S. Johnson, the plaintiff in error, recovered a judgment for $61.16, before a justice of Sumner county, against said Hugh T. George, upon a promissory note executed by him and others, bearing date the 9th of August, 1851. Execution was issued on said judgment, and levied on a boy named Henry, one of the slaves included in the foregoing deed of settlement, and thereupon this action was brought by Walton, the trustee, and the slave was replevied. The jury found for the plaintiff, and a new trial having been refused, the defendant appealed in error to this court. On the trial, the before-mentioned deed, though objected to, was admitted to go to the jury.

In this we think there was error. By the act of 1831, ch. 90, “all marriage contracts or agreements” are required to be acknowledged...