Lawless v. Guelbreth

• Decision Date: 31 July 1843
• Citation: 8 Mo. 139
• Parties: LAWLESS ET AL. v. GUELBRETH.
• Court: Missouri Supreme Court

8 Mo. 139

LAWLESS ET AL.

v.GUELBRETH.

Supreme Court of Missouri.

July Term, 1843.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

LAWLESS, for Appellants.

GAMBLE, for Appellee. 1. The bill of sale from Armstead to Tiffin was regularly proved by proving the hand-writing of a deceased subscribing witness, and that the other witness (who being unable to write, made his mark), was out of the State; the grantor having also signed only by a mark. 1 Starkie, 329. 2. The subsequent evidence given by appellants, of the bad character of the subscribing witness, went to the jury, to influence their consideration of the question of fact, whether Armstead actually executed the bill of sale, and that question was left to them by the instructions of the court; this evidence did not affect the propriety of admitting the deed in evidence. 3. The appellants had all the benefit of all their evidence about fraud or imposition by the first three instructions given for the plaintiffs, and the last instruction given by the court of its own accord, except so far as they claimed to invalidate the title of defendant as a purchaser bona fide for valuable consideration, without notice of fraud 4. The defendant, as such bona fide purchaser without notice, was entitled to hold the property against the plaintiffs, and the instruction asked by defendant and given by the court was correct. 5 Term R. 175, Parker v. Patrick; 2 Term R. 750, Harwood v. Smith; 15 Mass. R. 156, Buffington v. Gerrish; 12 Pick. R. 307, Rowley v. Bigelow; 8 Cowen, 238, Mowray v. Walsh. 5. The court did right in refusing the fourth instruction asked by the plaintiffs, for the reasons, that it is not law as between Armstead and Tiffin; and, secondly, upon the authorities before cited, it is clearly not law between the plaintiffs and the defendant in this case. 6. The court did right in refusing the plaintiffs' fifth instruction. The instruction refers to a bill of sale, which is not on the record. The power of attorney to Tiffin had no date, and there was no evidence of when it was executed; the instruction refers to a holding of the slaves by Tiffin, without any designation of the time, and relies upon that fact as avoiding the bill of sale to defendant. Again, a sale made by Tiffin of slaves, which pass without a written conveyance, if he held a power of attorney, and also a bill of sale to himself, would pass the title without any deed, and in whatever form he might think proper to convey.

TOMPKINS, J.

Armstead Lawless, Hugh Lackey, and John W. Paulding, commenced an action of trespass on the case against Augustin Guelbreth, in the Circuit Court of St. Louis county, and judgment being there given against them, they appealed to this court. It appeared in evidence, that some time in the year 1830, Lawless, one of the plaintiffs, had purchased from Samuel Perry some slaves, to recover the value of two of which slaves this action is brought, the two plaintiffs, Lackey and Paulding, having become interested in them together with Lawless.

The plaintiff proved that the defendant had purchased these two slaves from Clayton Tiffin; that some time in the month of May, 1832, a riot occurred in St. Louis, and the plaintiff, Lawless, being then in possession of said slaves sued for in this action, was compelled to pass over into Illinois; that about five or six months after this riot, the slaves in question were seen in the possession of Clayton Tiffin aforesaid. One witness stated, that some days after the riot, he found Lawless in a field in Illinois; that Lawless then told him that Tiffin had obtained some instrument of writing from him (whether a bill of sale or a power of attorney, the witness did not recollect), after he had passed over into Illinois, and that Tiffin would give him no money: this witness also stated that Tiffin, about the same time, told him that Lawless owed him money. A power of attorney, without date, was then given in evidence; it was made by Lawless to Tiffin, and acknowledged before a justice of the peace on the 21st day of May, 1832. This power was extensive, and amongst other things, it authorized Tiffin to sell the negroes in question.

The plaintiff having closed his evidence, the defendant produced and read in evidence, by consent of parties, two bills of sale for the slaves, Sarah and Thomas, respectively, from said Tiffin to the defendant. The defendant also read in evidence a bill of sale purporting to be...