Milly v. Smith

• Decision Date: 30 September 1829
• Citation: 2 Mo. 171
• Parties: MILLY v. SMITH.
• Court: Missouri Supreme Court

2 Mo. 171

MILLY

v.SMITH.

Supreme Court of Missouri.

September Term, 1829.

ERROR FROM THE CIRCUIT COURT OF ST LOUIS COUNTY.

M'GIRK, C. J.

This was an action on the part of Milly for freedom, under the ordinance of Congress of 1787, for the government of the Northwestern Territory. There was a verdict and judgment against the plaintiff in the court below. The facts of the case appear to be, as found by a special verdict, that one David Shipman, then residing in the State of Kentucky, on the 17th of October, 1826, made a deed to Smith, the defendant in error, by which Shipman, among other things, granted, bargained and sold the plaintiff, Milly, as a slave to Smith, to have and to hold her, together with her increase, to said Smith and his heirs forever, subject to this condition, to wit: that whereas the above named Shipman is indebted to the Commonwealth's Bank of Kentucky in about the sum of $800, for which the said Stepheu Smith is bound as security, and the said Shipman is also indebted to the heirs of William Cooper in about the sum of $600, for which the said Smith is bound as security in a replevin bond (also Shipman is indebted to other persons in several other large sums, for which Smith is also bound as security), and also said Shipman is indebted to Smith himself in about $200.

Now the lands (several tracts of land also sold or mortgaged), slaves and chattels aforesaid, with their future increase, are hereby declared to be given in mortgage to secure and indemnify and pay the said Smith as security, and in his own right, in the several sums of money hereinbefore enumerated and mentioned, and it is hereby expressly understood and agreed upon between the parties, that the said Shipman may and is hereby permitted to retain and keep the possession of said land, slaves and chattels, with their future increase, and to have the use thereof, subject, however, to the lien hereby created; and should said Shipman, or the said Smith, at any time hereafter be able to effect a sale of the lands, slaves, &c, or any part thereof at their fair value, and apply the proceeds thereof to the payment of the liabilities and claims herein enumerated, or to the discharge of a judgment in favor of the Farmers and Mechanics' Bank of Shelbyville against said Shipman, that in such case, the said Shipman and Smith will consent to said sale, and make title to the property so sold, in which title said Smith will release the lien hereby created. Witness our hands, &c. It is farther found, that soon after the execution of the said instrument, called a mortgage, Shipman, who was then greatly embarrassed in his pecuniary circumstances, took the said Milly, with several other of his slaves, and secretly, with intent to withdraw himself and property from Smith and other creditors, ran away with them to the State of Indiana, and there, in Jefferson county, executed a deed of emancipation in due form of law to the said Milly, she being present, which deed emancipated Milly with one other in the mortgage mentioned.

It is further found that Shipman then carried Milly to Peoria county, in the State of Illinois, where he then settled and resided, with an intention of residing there permanently; hired a farm, and declared his intention of residing there permanently, and has ever since resided there from November, 1826, till May, 1827, at which time said Smith came there and took Milly secretly and against her consent, and the consent of Shipman, and brought her to St. Louis, claiming her as his slave, and holding her as his slave, when and where this suit for freedom commenced; and the court further adds, that after the deed of emancipation was executed, Smith paid as security for Shipman to the sheriff, who had executions against him therefor, the claims of Levin Cooper, and the claim of Polly Rice, mentioned in the instrument of mortgage, amounting to the sum of sixteen hundred and thirty-four dollars, and that the executions issued after Shipman had carried Milly to Indiana as aforesaid. It is further found that Smith never had possession of Milly until the month of May, 1827, when he went to Illinois and seized her and brought her to St. Louis aforesaid, and that he claims her as a slave under the deed of mortgage, and that Shipman had, before the mortgage and during several years, had and held Milly as a slave. It is further found, that the deed of mortgage was executed in Shelby county, in Kentucky, where Smith and Shipman both resided, and that Milly was by Shipman then held as a slave.

The jury, or court sitting as a jury, also find several statutes of Kentucky, the result of which is, that, for purposes of descent, slaves are real property, and that for the purposes of contract and execution they are personalty. The court also find, that the common law of England is and was at the time of making this mortgage, the law of Kentucky.

Upon this state of facts and law, the question submitted to us is, whether Milly is by law entitled to her freedom? W...