Milly v. Smith

• Decision Date: 31 May 1828
• Citation: 2 Mo. 36
• Parties: MILLY (A WOMAN OF COLOR) v. SMITH.
• Court: Missouri Supreme Court

2 Mo. 36

MILLY (A WOMAN OF COLOR)

v.SMITH.

Supreme Court of Missouri.

May Term, 1828.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

TOMPKINS, J.

This was an action of trespass, &c., under the statute brought by Milly the appellant, against Smith the appellee, to establish a right to freedom. The appellee pleaded the general issue. Judgment was entered for the appellee, from which the appellant appeals to this court. The facts proved at this trial are, that David Shipman, a resident of Kentucky, owned and was in possession of the appellant as a slave; that on the 17th October, 1826, while residing in Kentucky, he executed a deed to said Smith of which a copy is here given, viz: “This indenture made this 17th day of October, 1826, between David Shipman of the one part, and Stephen Smith of the other part, witnesseth: that the said David Shipman, for and in consideration of the sum of one doller to him in hand paid, the receipt of which he doth hereby acknowledge, hath granted, bargained and sold, and by these presents doth convey unto the said Stephen Smith, and his heirs forever, a tract of land in Shelby county, on Guess' Creek, containing 26 acres, upon which said Shipman's grist and saw mill now stands; also, a negro man named Moses, about 30 years of age; one woman named Milly, about 25 or 6 years old; one child called David, about 18 months old; Harry about 16 years; Bill about 12 or 13 years old; Sarah about 27 years old; Eliza about 15 years old; six head of horses; one yoke of oxen and cart; ten head of cattle; 30 head of sheep; 30 head of hogs; beds and furniture; household and kitchen furniture of every description; farming utensils, and one clock: To have and to hold the said land, slaves and chattels, with their future increase, to him the said Stephen Smith, and his heirs, forever--and the said David Shipman covenants that he will warrant the title thereof to the said Smith, and his heirs, against the claim of all persons whatsoever, rendered, however, subject to the following conditions, that is say: that whereas the above named David Shipman is indebted to the Commonwealth's Bank in about the sum of eight hundred dollars, for which the said Stephen Smith is bound as security, and the said Shipman is also indebted to the heirs of William Cooper, in about the sum of six hundred dollars, for which said Stephen is bound as security in a replevin bond, also indebted to Elijah Warner in about the sum of one hundred and twenty dollars, an execution in the name of Helm for about one hundred and forty dollars, for which sums said Stephen is also bound as security; and is also indebted to said Stephen in his own right in about the sum of $207 due by note. Now the lands, chattels and slaves aforesaid, with their future increase, are hereby declared to be given in mortgage to secure, save, indemnify and pay the said Stephen 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 between the parties, that the said David Shipman may, and is hereby permitted to retain and keep possession of the said land, slaves and other chattels with their future increase, and to have the use thereof, subject, however, to the lien hereby created; and should said Shipman, or said Smith, at any time hereafter be able to effect a sale of the land, slaves, &c., or any part at their fair value, and apply the proceeds...