McDermott v. Barnum

• Decision Date: 31 March 1852
• Court: Missouri Supreme Court
• Parties: MCDERMOTT, Appellant, v. BARNUM & MORELAND, Respondents.

16 Mo. 114

MCDERMOTT, Appellant,

v.BARNUM & MORELAND, Respondents.

Supreme Court of Missouri.

March Term, 1852.

1. The delivery of a slave, on a bailment by way of loan, does not subject the property to the debts of the bailee, until possession shall have continued five years under the loan. (R. S. 1845, 527.)

2. A. “delivers personal property to B., and permits him to retain possession of, and use and control it as his own.” Held, these facts do not amount to fraud in law, but are only evidence of fraud, to be passed upon by a jury.

3. When, under such circumstances, the property is sold under execution as B.'s, A. is not estopped from claiming it as his own.

Appeal from St. Louis Circuit Court.

This was an action in detinue for a slave named Austin.

John C. Rogers, Hugh Rogers and Lowe (composing the firm of J. C. Rogers & Co.), and also the plaintiff, McDermott, were contractors on the James River Canal in Virginia, 1841 and 1842. The former becoming embarrassed, sold various slaves to various creditors, among others to the plaintiff; a bill of sale for four negroes (among them Austin) for $2,000, was made to Rodk. McDermott, and was signed by Jno. C. Rogers & Co., by J. C. Rogers, on the 24th of January, 1842. Reilly, a witness to the bill, testified that the negroes were present at the sale, were delivered to the plaintiff and went to work for him; he identified the bill of sale, to “Rodk. McDermott,” as the one made on that occasion. The negroes remained working for the plaintiff about two weeks in Virginia, and until they were sent off in charge of Janney. Janney, then clerk of Rogers & Co., testified that they owed plaintiff for goods to a large amount--over $2,000, as he thought; they agreed to sell plaintiff four negroes, among them Austin, in payment or part payment of the debt. The negroes had been previously taken on attachment, which had been dissolved before that sale. Janney saw the slaves delivered to plaintiff. Afterwards, plaintiff delivered them to Janney to carry to Montgomery, Alabama, to sell, and to remit the proceeds to the plaintiff. When Janney left Virginia, Rogers & Co. were considerably indebted; they left some property there, but how much, Janney could not say. He took the negroes sold to plaintiff, and also others sold at the same time by Rogers & Co. to McKinney, and carried them to Montgomery county, Alabama, along with some negroes he had also received from that firm as a creditor. Rogers & Co. remained in Virginia when Janney left, but Hugh Rogers overtook him in North Carolina, and they went together to Montgomery. There Janney sold McKinney's negroes, and sent the proceeds to John C. Rogers in North Carolina, to be sent to McKinney, but he does not know that McKinney ever got the money; does not know if McKinney's directions were to send the money to Rogers, but his directions were to remit it. Janney sold some of the negroes of the plaintiff at Montgomery, and after paying his expenses, put the money in his pocket. Not selling all the negroes at Montgomery, because the prices offered did not suit him, and hoping to get better prices, he sent the rest by J. C. Rogers to Hugh Rogers at Mobile, with directions to sell plaintiff's negroes, and remit the proceeds to McDermott. Among them was Austin. Janney never sold Austin to anybody. Janney and Hugh Rogers married sisters of Lowe, one of the firm of J. C. Rogers & Co.

Hugh Rogers at Mobile had blooded stock for sale, and with the stock went to New Orleans, and thence to St. Louis, arriving here 10th of April, 1842; and in Mobile, and on the way, and in St. Louis, Austin attended on the horses. At St. Louis, in 1842 and 1843, Hugh Rogers claimed Austin as his property, hired him out and offered to sell him; he also used him in a stable which he kept. The negro was subsequently, in the fall of 1843, taken on attachment, sold and purchased by Barnum & Moreland. McDermott was pretty well-off; was known as Rory or Rod, or Roderick McDermott, and used to sign his name “R. McDermott.”

The defendants gave in evidence transcripts of judgments before justices of the peace in St. Louis, in 1843, in the cases of John T. Martin v. Hugh Rogers and P. McDonald; and two other cases against Hugh Rogers; also, a bill of sale, acknowledged and recorded, of a slave named Austin, to defendants, by constable Rule, of St. Louis township, dated 11th of November, 1843, stating that he had seized a negro named Austin, as the property of Hugh Rogers, and in virtue of the execution in Martin v. Rogers & McDonald, had sold him at public sale to the defendants.

To the introduction of this testimony the plaintiff objected; the objection was overruled, and exception taken at the time.

The defendants also introduced in evidence a bill of sale of a negro named Austin, to John C. Rogers by Hugh Rogers, at St. Louis, August 30, 1842; and the records of two suits of Childs v. J. C. Rogers & Co. in the St. Louis Court of Common Pleas, for the November term, 1842, for debts claimed to be due him by that firm. A slave named Austin, and another, were attached in these suits as property of the firm. John C. Rogers interpleading and claiming the negroes, the verdict was, that when attached they were not the property of John C. Rogers. What became of the original suit does not appear.

The defendants also introduced evidence to show that Hugh Rogers had, in St. Louis, in 1842-3, claimed Austin as his slave, hired him out, offered him for sale, and, generally, acted as owner of the slave.

To the evidence of Schultz, a witness for the defendants, plaintiff objected, and the objection being overruled, excepted.

The verdict was for the defendants. The plaintiff moved for a new trial on the usual grounds; the motion was overruled, to which the plaintiff excepted and appealed to this court.

The court gave the following instructions for the defendant:

1. Unless it is proved to the satisfaction of the jury, that Rodk. McDermott, named in the writing of the date of January 24, 1842, is the plaintiff and not another person, then said instrument is inoperative to convey to the plaintiff a title in the slave in the declaration mentioned.

2. If the jury find, from the evidence, that the instrument of writing, under which the plaintiff claims, of the date of the 24th of January, 1842, was executed by John C. Rogers, and accepted by the plaintiff, with intent to hinder, delay or defraud the creditors of John C. Rogers & Co., then the said writing is fraudulent and void as against the creditors of said firm, and of the members thereof.

3. It is not necessary that the fraudulent intent should be proved positively, but if, from all the circumstances, it appears to the satisfaction of the jury that such fraudulent intent existed on the part of the plaintiff, and the vendor or vendors in said bill of sale, at the time of the making thereof, it is sufficient.

4. If the jury find that the plaintiff, by himself or his authorized agent, delivered the slaves in the declaration mentioned to Hugh Rogers, one of the firm of John C. Rogers & Co., and suffered or permitted him to retain the possession of, and use and control the said slave as his own property, that while said Rogers was so in possession of said slave, using and controlling him as his own, he was regularly levied on and sold, to satisfy one or more executions against said Hugh Rogers, that the defendants became the purchasers of said slave at such sale, without any notice of the claim of the plaintiff, the verdict ought to be in favor of the defendants; but if the delivery was not the act of the plaintiff, nor authorized by him, he is unaffected by it or the subsequent possession of Hugh Rogers, unless it appears to the jury from the circumstances that he had knowledge of the acts of his agent and acquiesced in them.

To the giving of these instructions the plaintiff, by his counsel, objected, but the court overruled his objection, to which the plaintiff at the time excepted.

The court gave the following instructions for the plaintiff:

1. Fraud, in fact, is to be passed upon by the jury. He who attacks a transaction on this ground, must establish it by evidence to the satisfaction of the jury. This may be accomplished by proof direct and positive; or, as already stated, by the disclosure of such facts and circumstances as in themselves lead to that conclusion. But the jury are not authorized to infer the existence of fraud, unless there be some evidence in the case rendering such inference reasonable, or from which fraud may be deduced.

2. As a general rule, a purchaser at a sheriff's or constable's sale is not protected in his purchase, if the property he buys does not belong to the debtor, but to another. The jury are referred to the fourth instruction given for the defendants to determine the exception to this rule, or under what circumstances and conditions, if actually shown to exist, the true owner of property may, nevertheless, be displaced or be compelled to yield to the claim of a third party shown to have purchased at such sale, and without knowledge or...