Nat v. Coons

• Decision Date: 31 March 1847
• Citation: 10 Mo. 543
• Parties: NAT (OF COLOR) v. G. W. COONS.
• Court: Missouri Supreme Court

10 Mo. 543

NAT (OF COLOR)

v.G. W. COONS.

Supreme Court of Missouri.

March Term, 1847.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

TOWNSEND, for Appellant. 1. The judgment is erroneous, because a material issue joined between the parties was not found by the jury. See Fenwick v. Logan, 1 Mo. R. 401; Easton v. Collier, 1 Mo. R. 421; Jones & Jones v. Snedecor, 3 Mo. R. 390; Foster & Foster v. Nowlin, 4 Mo. R. 18; Pratt v. Rodgers, 5 Mo. R. 51. 2. The plaintiff showed a right to his freedom as against the defendant, because, First, both of the copies of the will offered in evidence by the plaintiff were competent evidence. The first, which was a copy of the record of the will, as recorded in the office of the Probate Court of St. Louis county, was competent evidence under the statutes of this State. See Rev. Stat. of 1845, title Wills, §§ 28, 29, 35, 36. The second, which was a copy from the office of the Probate Court of Warren county, State of Mississippi, was competent evidence under the laws of the United States, agreeably to which it was authenticated as a judicial proceeding of a court of record of the State of Mississippi, and likewise competent evidence under the laws of this State. See Rev. Stat. of 1845, title Wills, §§ 28, 29, 35, 36, and the act of Congress; also, Bright et al. v. White, 8 Mo. R. 422. The extract from the laws of Mississippi preserved in the bill of exceptions and offered in evidence on the trial, show that the probate was duly made before the proper court, and that the original will could not be had. Second. The validity and effect of the will is to be decided upon by the laws of the State of Missouri, where the testator was residing at the time of his death, and where his negroes, as well as other property, were locally situate, and not by the laws of Mississippi. See Story's Conf. Laws, 62, 63, 64, 65, 66, 67, 312, 314, 391, 394, 398, 403. The case in 7 Louisiana R. 135 (Wheeler, 311) cited by Mr. Spalding, does not contradict these authorities, inasmuch as it appears from that case that the testator died in the State of Georgia, and was domiciliated there at the time of his death. 3. According to the laws of this State, the will effected a full and perfect emancipation. See Rev. Stat. of 1835, title Slaves, art. 2, §§ 1, 2, 3, 6. 4. The will is not merely directory, but ipso facto, works an immediate emancipation upon the testator's death. See 1 Gill & Johns. 390. 5. The evidence offered by the defendant, therefore, was entirely irrelevant, as it showed no authority for the defendant's holding the plaintiff in slavery, nor any justification or excuse thereof. 6. The defendant stands in the shoes of his testator, and even were the emancipation void as to the creditors of the testator, the defendant is not in a situation to avoid it, but deriving his authority from the will, is bound by it, and cannot hold the plaintiff in slavery, contrary to its provisions. 7. The law has taken care of the rights of creditors by providing that slaves emancipated by any deed or will shall be liable to be taken in execution to satisfy any debt contracted by the person emancipating them prior to the act of emancipation. Rev. Stat. of 1835, title Slaves, art. 2, § 3. 8. But if the plaintiff's right to his freedom depends upon the sufficiency of the assets of the testator, exclusive of his slaves, to pay his debts, and in default of such assets, the defendant had a right to hold said slaves in slavery, then surely the evidence offered by the plaintiff to show that no such deficiency of assets existed, was entirely competent and ought to have been received. 9. If there was no original deficiency of assets, surely the defendant ought not to be permitted to take advantage of his own wrong, by alleging, as an excuse for holding the plaintiff in slavery, a deficiency of assets, which he himself had produced by his waste and misconduct. 10. But surely it was competent for the plaintiff to show that some of the demands originally established against the estate had been subsequently disallowed, and were not, at the time of the trial, debts against the estate. 11. The evidence given upon the trial showed an amount of assets in the hands of the administrator far exceeding the debts remaining unpaid, none of which assets were shown to be unavailable.

SPALDING, for Appellee. 1. The first error assigned cannot be sustained. It is upon the finding of the jury that the “defendant is not guilty of said several grievances, or either of them, in manner and form,” &c. and nothing is said of the second issue on the plea that the plaintiff was not a free person at the commencement of this suit. First. The record shows that only one issue was submitted to the jury, and on that one they found. The act of submitting the issues was the act of the parties; if they chose to drop the second issue and go to the jury on one only, they ought not to be permitted afterwards to object; where all the issues are submitted, and the jury fail to respond, it is different. Second. The court below never passed upon the point, and therefore this court cannot take notice of it. 1 Mo. R. 283, 350, are cases where motion in arrest was made, but none was made here. The cases where the court has reversed, are cases of several material issues, all submitted to the jury, and the jury, failed to find as to some of them. 9 Mo. R. 632; but it must be otherwise where the jury were not sworn on all the issues. Third. But the issue found embraced the whole case; and if the jury had found for plaintiff on the second issue, the judgment must have been given for the defendant. See Rev. Code of 1835, title Freedom; 1 Mo. R. 115, Tate v. Barcroft; 1 Mo. R. 419, Wear v. McCorkle. Where judgment is for the right party on the whole record, court will not reverse. 1 Mo. R. 746, Wathen et al. v. English; 9 Mo. R. 632; 1 Mo. R. 223; 5 Mo. R. 51, 477. 2. The will of Milton Duty does not free the slaves, but only provides they shall be manumitted on the happening of a certain event, and they were never manumitted. 3. But even if the will does emancipate them, yet the emancipation was conditional and contingent, and was to take effect only after the payment of all the testator's debts, for this is the express provision of the will. 2 Har. & Gill, 1; Wheeler on Slavery, 327; 2 Leigh's R. 189; Wheeler, 315. 4. At the time the suit was brought, and even at the time of trial, the debts were not all paid. Only 51 per cent. had been paid on the debts in the 6th class, and nothing on the debts in the 7th class, and nothing on the debt of Strong, which was pending on appeal in the Circuit Court. 5. The testimony offered and rejected, that there were assets enough and money enough in the administrator's hands to pay the debts, and that the administrator had committed waste, &c., was irrelevant, as the freedom depended by the will on the actual payment of the debts, and not on the fact that there were sufficient assets to pay them. Those assets may all be squandered, and the securities of the administrator be insolvent. In truth, it is not known even to this day but that Nat will have to be sold...