Mulliken v. Greer

• Decision Date: 31 August 1838
• Citation: 5 Mo. 489
• Parties: MULLIKEN v. GREER.
• Court: Missouri Supreme Court

5 Mo. 489

MULLIKEN

v.GREER.

Supreme Court of Missouri.

August Term, 1838.

APPEAL FROM THE CIRCUIT COURT OF PIKE COUNTY.

E. BATES, for Plaintiff, cited: 5 T. R. 512; Phil. Ev. 138, 202-3; Bul. N. P 40; 4 Bibb, 35; 2 Hen. & Mun. 127, Co. Lit. 352, a.; 4 Com. Dig. 75; 3 Mo. R. 5, 38; 6 Con. R. 345.

U. WRIGHT, for Defendant, cited: 4 Bibb, p. 4; 3 Hen. & Mun. 127; 3 Mo. R. 464; 4 Mo. R. 295; 3 Mo. R. 283, 411.

TOMPKINS, J.

Greer brought his action of detinue in the Circuit Court against Mulliken, and he having obtained judgment there, Mulliken appeals to this court. The evidence of the case is, that in the month of October, 1834, Greer, the plaintiff intermarried with Patsey Mulliken, daughter of the defendant; that a few weeks after the marriage, two slaves, which were demanded in this action, were sent home with the wife to her husband's house without any avowal of the purpose for which they were sent; that the wife lived 11 or 12 months after her marriage, when she died, leaving an infant child; that the slaves remained at the plaintiff's house, and under his control till the death of his wife. They were then removed to the house of Mulliken, the defendant, but under what circumstances they were then removed, is not explained. There they have remained ever since. Before the action was brought, Greer, the plaintiff, demanded them from the defendant, and he refused to deliver them. Several witnesses were examined on the part of the plaintiff to prove that the defendant, before the marriage of his daughter with the plaintiff, had declared that he intended to give his lands to his sons, and his slaves to his daughters, four in number; and that he had allotted the slaves in question to his daughter Patsey, who afterwards intermarried with the plaintiff.

J. Sandusky, a brother-in-law of the defendant, stated that, about three years ago, and before the marriage of the plaintiff with the daughter of the defendant, in conversation with the defendant about his affairs, he alluded to his ill-health, and said he intended to give his lands to his sons, and his slaves to his daughters--two slaves to each; that the defendant was then speaking of the ultimate disposition of his property; and spoke of his will, but whether of one already made, or of one then to be made, the witness did not recollect. Another witness, Dougherty also a brother-in-law of the defendant, stated that about the year 1832 or '33, he had a conversation with the defendant about the disposition of his estate, and the making or altering of his will, in which he stated that he had given the slaves in question to his daughter Patsey. This also was before the marriage of the plaintiff The same witness, Dougherty, stated that in another conversation between him and the defendant, which was held after the marriage of the plaintiff, Greer, with the defendant's daughter, the defendant, according to the understanding of the witness, said that he had given the property to Greer, and that Greer would do very well. Hunter another witness, stated that about eight weeks after the marriage, he heard his mother, a sister to the defendant, chide him for giving up the slaves in question to Greer, the defendant being decrepit with palsy, and requiring the constant attention of his wife, and having but one woman slave remaining with the family; that the defendant replied he had given up a woman and girl to the oldest daughter, who had married Standifer; and he would do no less by Patsey.

It was given in evidence by both parties, that the defendant is an old man, so decrepit with palsy, that he can move about but very little, and can scarcely speak audibly, unless when lying down; that at the time of the cönversation first above detailed, he had a wife and seven children; that one of the children a daughter, died just before the marriage of Greer; that he had nine or ten slaves, viz: a man, sickly and of very little value; three women and five or six children--all of one woman--the oldest child between ten or eleven years old; that of these he gave to his daughter, Mrs. Standifer, a woman and girl; and sent home with Mrs. Greer the woman and boy demanded by Greer in this action. Several witnesses testified that, when Greer demanded the slaves as aforesaid, Mulliken replied, “did I make you a right to them?” To which Greer answered: “you gave them to my wife, and afterwards I thought you gave them to me. Did not you send the assessor to me and say, that as you had given them to me, I must list the property and pay the taxes?” That John D. Mulliken then told his father, the defendant, not to answer; that they were trying to draw some admission from him, and that nothing more was said.

John D. Mulliken, eldest son and principal agent of his father, the defendant, testified that the defendant often conversed with him and the family on the subject of the disposition of the estate; and that his purpose, often expressed, was to give his lands to his sons, and his slaves to his daughters; that he frequently expressed his determination not to part with the title to his slaves till his death; and that he intended by his will, to settle them on his daughters and their issue, beyond the control of their husbands; and that he had executed, at different times, several different wills, one of which the witness had written and two others he had seen. This witness also testified that his brother-in-law, Standifer, held two negroes of his father in the same manner that Greer held the two in dispute; that sometime about April, 1835, Greer being a witness in the trial of the right of property in these slaves, held by Standifer under the defendant, Mulliken, and then claimed by Mulliken against one Allison, the plaintiff in the execution, and being asked whether old Mulliken had...