McCulloch v. Renn

• Decision Date: 31 October 1866
• Citation: 28 Tex. 793
• Parties: ROBERT MCCULLOCH v. RUFUS H. RENN ET AL.
• Court: Texas Supreme Court

28 Tex. 793

ROBERT MCCULLOCH

v.RUFUS H. RENN ET AL.

Supreme Court of Texas.

October, 1866.

In the state of Alabama, a purchase of slaves by an administratrix, at a sale by herself and co-administrator, and a confirmation of the sale by the orphans' court of that state, vested title in her to the slaves purchased.

By the intermarriage of parties, in 1840, in the state of Alabama, where the common law as to marital rights was then in force, slaves belonging to the wife became the property of the husband; and a subsequent sale of such slaves by the wife, without the concurrence of the husband, conveyed no title. Pas. Dig. art. 4639, note 1046, and art. 1000, notes 422 to 424.

A husband and wife residing in the state of Alabama made a deed of gift of three slaves, which the wife had brought into the marriage, to the wife's two infant children by a former husband, and the children continued to reside with the parents; but the slaves remained in the possession of the grantors subsequent to the execution of the deed of gift. Held, that such subsequent possession was consistent with the deed of gift, and did not of itself afford evidence of fraud, whether properly recorded or not.

Actual notice of the deed of gift debarred a party subsequently purchasing the slaves from the administrators of the former owner from the protection accorded to an innocent purchaser for value without notice, whether the first deed were properly recorded or not.

The donees of the slaves under the deed of gift were entitled, upon attaining their majority, to recover them in this state from a defendant who held them by purchase under the party who thus bought them with notice of the deed of gift, notwithstanding that such notice was not imputed to the defendant himself, and notwithstanding that the defendant and his vendor had held possession of the slaves for some seventeen years during the minority of the plaintiffs.

Infancy proved is a full replication to the plea of two years' possession of chattels.

APPEAL from Lavaca. The case was tried before Hon. FIELDING JONES, one of the district judges.

This suit was brought by the appellees on the 18th of November, 1857, to recover from the appellant a negro woman named Bettie and her three children. The plaintiffs were R. H. Renn, who joined with his wife, George Ann (Johnson) Renn, and her brother, James Henry Johnson, who sued by his guardian, the said R. H. Renn, who (wife and ward) claimed as heirs of George Washington Johnson, and by deed of gift from their mother, against Robert McCulloch. The defendant plead the general issue and fraud in the guardians of the plaintiffs, McDade and wife. He also plead the limitation of two years. There were many amendments, but the issue was, who was entitled to the negroes?

George W. Johnson, the father of George Ann and James Henry, died on the--day of February, 1839, in Montgomery county, Alabama, leaving his widow, Nancy Ann Johnson, and one child, the present plaintiff, James Henry Johnson, who was born on the 13th of October, 1837. In September, 1839, the plaintiff, George Ann, was born, her father having died a few months previous to her birth.

George W. Johnson left as a part of his estate the negro Bettie, then a child, now in controversy. On the 22d of April, 1839, administration on George W. Johnson's estate was granted by the orphans' court of Montgomery county, Alabama, to the widow, Nancy Ann Johnson, and one James H. McCulloch. In July, 1839, the same court ordered a sale of the stock and perishable property of the estate, and in August following a return of the sale was made. By this return of sale and by other evidence it appears that the negro Bettie and two others were sold, and purchased by the widow and administratrix, Nancy Ann Johnson. An order of court approving the sale was made on the 9th of September, 1839, and it was proved that this sale passed a good title to Nancy, the widow and co-administratrix.

On the 1st day of March, 1840, the widow, Nancy Ann Johnson, consoled herself and married Charles F. McDade, and by the marriage the property in the negress vested in the husband. And on the 4th of May, in the same year, these parties, McDade and wife, executed a deed of gift of the negro to George Ann, now seven months old, and James Henry Johnson, two and a half years old, the present plaintiffs. These donees, being infants, continued to reside with McDade and wife, and no ostensible change of the possession of the property took place. On the day of the execution of the deed, however, McDade and wife acknowledged it before a justice of the peace, and on the next day it was recorded in the county clerk's office of said county of Montgomery.

On the 18th of May, 1840, Nancy Ann McDade and James H. McCulloch sold the...