Liptrot v. Holmes

• Decision Date: 31 March 1846
• Docket Number: No. 60.,60.
• Citation: 1 Ga. 381
• Parties: John Liptrot, administrator of Camilla Talton, plaintiff in error. vs. James Holmes, defendant in error.
• Court: Georgia Supreme Court

1 Ga. 381

John Liptrot, administrator of Camilla Talton, plaintiff in error. vs. James Holmes, defendant in error.

No. 60.

Supreme Court of the State of Georgia

MARCH TERM, 1846.

This was an action of trover and conversion, tried before Judge Floyd, in the Superior Court of the county of Houston, on the appeal, at April Term, 1846. The suit was brought by the plaintiff in error against the defendant in error for the recovery of damages for the alleged conversion of fourteen slaves.

The defendant in error pleaded the general issue, and also a special plea, alleging, that if the slaves sued for were the separate and trust property of the plaintiff's intestate, in her lifetime, the same slaves were reduced to possession by Henry Talton, the husband of said Camilla Talton, the plaintiff's intestate; and that the said Henry Talton beingin the possession of said slaves before and at the time of the death of said Camilla, afterwards departed this life so possessed, and so in the enjoyment thereof. And the defendant in error, and Narcissa J. Talton, the widow of said Henry, obtained letters of administration on the estate ci said Henry; and, as such administrator and administratrix, they received said slaves into their possession, and held and claimed them as such administrator and administratrix, as a part of the estate of said Henry.

Upon the trial, it was proved, by witnesses introduced in behalf of the plaintiff, that the slaves mentioned and described in said case were inherited by the said Camilla, the plaintiff's intestate, partly from the estate of Hopkins Liptrot, her former husband, and partly from the estate of Aquilla Liptrot, her father; that Henry Talton inter-married with said Camilla, and survived her, and afterwards married again, and died. Camilla left two children; one by her former husband, and the other by the said Henry. The demand of the slaves, and the refusal of the defendant to deliver them, and his possession before and after the commencement of the suit, and that he treated them as his own, together with their value, and the value of their lure, was proven. The plaintiff in error then introduced his letters of administration on the estate of said Camilla, and also a marriage contract between said Camilla and Henry, and John Liptrot, as trustee, (a copy of which marriage contract is attached, ^*) which was read in evidence to the jury by the plaintiff in error. The plaintiff then proved the intermarriage of said Henry and Camilla, in pursuance of said marriage contract, and closed' his case.

Whereupon the defendant\'s counsel, without introducing any evidence in support of his plea, moved the court for a nonsuit, on the ground that the legal estate was in said John Liptrot, as trustee, and not as administrator, of said Camilla.

And, secondly, if the plaintiff had any remedy, it was in equity, and not in a court of law.

Which motion the court below sustained, and held, that an administrator took no other title than his intestate had, and stood in the same condition. Plaintiff sued as administrator of Camilla Talton, deceased and, to prove title, showed a paper, which purported to be articles of agreement made and entered into between said Camilla, then a single woman, Henry Talton, and John Liptrot, in contemplation of a marriage about to be solemnized between said Camilla and Henry, for the purpose of securing to Camilla the enjoyment of her property, free from all control of her future husband, and from all liability to his debts. To effect this object, the property of the said Camilla, by the said deed of agreement, was conveyed to the said John Liptrot, in trust, for the said Camilla; and, by the same deed, the said John Liptrot accepted the trust. The marriage was solemnized between the said Camilla and Henry. The property mentioned in the deed was received, and held, and controlled according to its provisions, during the life of Camilla. She died, leaving a child by said marriage, her husband surviving her. Henry Talton died, in the possession of the property, leaving the child of Camilla by said marriage surviving him. John Liptrot took let-ters of administration upon the estate of Camilla Talton, deceased, and brought the suit; and to show, and prove, titl, exhibits this deed.

Camilla Talton, the plaintiff's intestate, at the time of her death, had only an equitable interest in the property; and such interests are cognizable alone in a court of equity. The legal title remains in the trustee, and he alone could sue, and recover, at law; and the court, therefore, awarded the nonsuit. To which decision of the court below the plaintiff in error excepted.

1st. That the court erred in this, that it ruled only an equitable title vested in the plaintiff, as administrator of Camilla Talton.

2d. Because the court erred in ruling that any estate or title remained in the said John Liptrot, after the death of Camilla Talton, and grant of letters of administration to the plaintiff.

3d. Because the court erred in ruling that the legal title remained in the said trustee, after the grant of said letters.

4th. Because the court erred in ruling that the plaintiff could not recover said property in trover, at law, against a wrong-doer.

5th. Because the court ruled that the plaintiff's remedy was solely in equity, and not at law.

6th. Because the court erred in ruling that the plaintiff could bring an action at law, as trustee, under said contract.

Upon which exceptions the errors complained of were assigned.

Samuel T. Bailey, for the plaintiff in error.

As this action is predicated on the deed of marriage settlement; or as, rather, plaintiff claims title through that deed, it becomes necessary to first inquire. What estate, or interest, was conveyed, or secured, by that deed, and to whom?

There is no ambiguity upon the deed. It first recites that, as Henry Talton and Camilla Liptrot intended marriage, and she had property in possession, and much more in expectancy, she was desirous to secure It against the debts and contracts of Talton; and that it should be " forever kept separate, and assured to her separate use and enjoyment." Therefore, to effect that clearly-expressed object, they do not anywhere, nor by any expression, convey any property, or title, or interest in the property, to Liptrot; but they say they have "made, constituted, and appointed John Liptrot trustee for the said Camilla, and for all and singular her property, real and personal, to keep, preserve and assure the same forever unto" (not John Liptrot, but) "the said Camilla, and to her entire and free use, control, and benefit, free and exempt from all and every liability, obligation, or charge of any and all Judgments, debts, demands, or contracts, now existing, or which shall hereafter exist, against the said Henry Talton." Here is all the right, title or interest, which John Liptrot ever had, or acquired, by virtue of this deed. He has no other power than that of a special attorney, to guard and protect the property in Mrs. Talton; no title passed to him, nor was intended to pass. The deed assures the title to Mrs. Talton alone; to her sole and separate use and enjoyment forever. This the law allowed, in spite of Talton's creditors, because he never had any title to, or possession of, the property before marriage; so that it wascompetent for him, before any title vested in him, to release and assure, to his intended wife, all her property, in possession or expectancy; and the title, to her, would have been good without any trustee. Equity would have held him a trustee for her. Had such a deed been made after marriage, creditors could have impeached it; because the title having been once in him, their rights would attach.

Clearly, then, Liptrot was a trustee without an interest. He held a bare office. His duty was to protect Mrs. Talton and her property against her husband and his creditors; and, as Talton assented, such an office or agency was lawful and binding. He was to see that she held and enjoyed her property forever. Would not such an agent, or trustee, as they call him, present a singular spectacle in a court of justice, maintaining that he had a better title and right to hold said prop erty, than Mrs. Talton, under this deed? Well, if Liptrot could not claim nor hold possession against her, with how much less right has a stranger, like the defendant to hold the property?

But, we maintain: 1st, that in those cases where title is conveyed to trustees, to the use of a feme, that the absolute legal title is in her, at all times, while she is discocert: that, whenever the coverture ceases, the title to the trustee ceases also. It is upon this principle, alone, that when separate property is given in trust, for a feme sole, with an express declaration that she shall not alienate, yet, if there is no limitation over in case of alienation, she may make a good title to the property.—11 English Ch. Rep. Condensed, 368"; 17 ib.; 1 ib. 34; ib. 37; ib. 40; 6 Eng. Ch. Rep. C. 461.

Then, if Mrs. Talton had survived the coverture, clearly she would have the absolute title, even if Liptrot had any during coverture. Her administrator has all her rights.

That absolute title vests in trustees, in any case, is more fiction than fact or law; and since the old feudal system of uses has been virtually abolished, courts have been disposed to look to the substance, rather than the forms of law; hence, they have held that a feme covert may convey her separate property, without the consent of her trustee.— Saunders on Uses and Trusts, 344, 345; 9 Ves. 520; 1 ib. 189, note; 15 ib. 596, 604; 2 Story, Eq. sec. 1388; 2 Kent, 170. Nor is a separate examination necessary.—13 Ves. 191. Does not this show that there is such a property in her, as would authorize an action of trover, when the coverture is removed?

When a trust is created for a particular purpose, and that purpose fail, a trust results to the original owner, or the heir.—2 Coke Lit. ⁵/₇ ⁰/₉ ²/...