Pendergrast v. Foley

• Decision Date: 31 January 1850
• Docket Number: No. 1.,1.
• Citation: Pendergrast v. Foley, 8 Ga. 1 (Ga. 1850)
• Parties: Edwin M. Pendergrast and others, plaintiffs in error. vs. O. Foley, administrator of F. Foley, deceased.
• Court: Georgia Supreme Court

8 Ga. 1

Edwin M. Pendergrast and others, plaintiffs in error. vs. O. Foley, administrator of F. Foley, deceased.

No. 1.

Supreme Court of the State of Georgia

JANUARY TERM, 1850.

In Equity, in Chatham Superior Court. Tried before Judge Fleming, February, 1849.

Patrick Pendergrast, a citizen of Savannah, being in bad health, left this State in 1830, for Ireland, leaving Daniel Foley as his general agent to manage his property, consisting of several ne-groes, drays, and some real estate. The immediate management of the drays was under the control of Andrew Dixon. On the 1st November, 1830, all the negroes and drays of Pendergrast were sold at public auction by Daniel Foley, and the negroes were all purchased by him.

In 1832, the last will and testament of Patrick Pendergrast was admitted to probate, and the executors qualified under the same. The executors had a settlement with Daniel Foley, and received from him the amount of the auction sales. Foley failed to pay over the amount received from Dixon for profits of drays previous to sale at auction. Andrew Dixon intermarried with the only daughter of Daniel Foley, and after his death, on 18th April, 1842, Dixon and wife mortgaged two of these negroes, Sam and George, to Ebenezer Jenckes, for the payment of $600. Subsequently, the mortgage was foreclosed, and the negroes sold by the Sheriff, and bought by Francis Foley, September, 1842.

In 1845, Edward Pendergrast and Philip Reily and Wife, (formerly Julia Ann Pendergrast) the legatees under the will of Patrick Pendergrast, brought an action of trover against Francis Foley for the two negroes, Sam and George. There was a verdict for the plaintiffs, and an appeal entered.

Pending the appeal, Francis Foley filed his bill on the Equity side of Court, setting forth that he was a purchaser for value without notice, and those under whom he claimed had been in adverse possession for more than four years. The bill prayed a perpetual injunction.

The answer of Pendergrast and Reily and Wife, set forth the foregoing facts; and farther, that the purchase by Daniel Foley was fraudulent and void; that Dixon had full knowledge of the fraud; that defendants were minors at the time of the sale, and but lately came of age, and had no knowledge of the fraud until within the last few years; that the executors assented to the legacy to them before the settlement, and that so soon as their assent was given, the Statute of Limitations ceased to run. The assent set up. by the defendants, was the payment for board and clothing of the minors shortly after the qualification of the executors.

Upon the trial, much testimony was introduced, not necessary to be here inserted.

The Court charged the Jury at some length, to which charge, the following errors are assigned:

1st. Because the Court charged the Jury, that when notice of the auction sale, in 1830, of said slaves was brought home to the executors, that inasmuch as that sale was the fraud, the fraud being thus discovered to the executors, that the bar of the Statute commenced.

2d. Because the Court charged the Jury, that the possession of Andrew Dixon (whether he had or had not knowledge of the fraud) of these slaves, had barred the right of the defendants thereto.

3d. Because the Court charged, that the Act of 1817 did not protect the interest of the minor legatees of Patrick Pendergrast, but that the executors being barred, the said interest of the minors was also barred.

4th. Because the Court charged, that the appropriation of the profits and income of the estate of Pendergrast, to the maintenance and support of the defendants, (who were sole legatees under said will,) did not, in law, constitute such an assent on the part of the executors, as to vest the legal title to the slaves in the legatees, so as to bring them under the provision of the Act of 18th December, 1817.

5th. Because the Court charged, that the defendants were barred by the Statute of Limitations from any claim to said slaves, when neither D. Foley, Dixon, or F. Foley, had separately had possession for the length of time prescribed by the Statute.

R. M. Charlton and John E. Ward, for plaintiffs error, cited the following authorities:

Michoud vs. Girod, 4 Howard's Sup. Ct. Rep. 561. 4 Blackf. 84. 5 Ga. Rep. 212. Ward on Leg. 364, 7. 2 Williams on Extrs. 984. Matthews on Extrs. 176, 177. Comyn's Dig. title Administration, c. 6. Paramour vs. Yardley, Plowden, 539, 544. Prince, 227, 229. McLeod vs. Rogers, 2 Richardson, 20, 22. 1 Hall's Jurisprudence, 225. 226. Tillinghast's Adams, 491.

Wm. Law, for defendant in error, cited the following authorities:

Harpending vs. The Dutch Church, 16 Peters, 455, 493. Paschal, adm'r vs. Davis, 3 Kelly, 262. Hovenden vs. Annesley, 2 Sch. & Lef. 630. 3 Pet. 52. 10 Pet 223. 17Ves.97. 1 Kelly, 388, 538, 379. 4 McCord, 423. Lewin on Trusts, 24 Law Lib 604. Mcpherson on Infants, 41 Law Lib. 540. 3 P. Wms. 309. 2 Ball & Beatty, 71. 20 pich. 2. 1 McLean, 533. Prince 578. 2 Treadway\'s Const. Rep. 549. 1 N. McC 296. 3 Mc Cord, 451. 1 Bailey, 504. 1 Bailey, 505.

By the Court. —Warner, J. delivering the opinion.

The main question involved in this case is, whether Francis Foley, the original defendant in the action of trover, was protected by the Statute of Limitations from a recovery of the two slaves, Sam and George, in a suit instituted by the legatees of Patrick Pendergrast, deceased. In November, 1830, the negroes were sold by D. Foley, at auction, as the property of Patrick Pendergrast, and purchased by D. Foley, who was the agent of Pendergrast. The negroes passed from D. Foley into the possession of one Andrew Dixon, and were mortgaged by Dixon to Jenckes, and subsequently sold, on the foreclosure of the mortgage, at Sheriff's sale, and purchased by Francis Foley, in 1842. Patrick Pendergrast died, leaving a will, by which H. Cassidy and L. O'Byrne were appointed his executors. In January, 1832, the executors of Patrick Pendergrast were qualified to execute his will. In March, 1832, the executors of Pendergrast had a settlement with D. Foley, the agent of Pendergrast, who sold the negroes at auction, in 1830, for the proceeds of the sale of the negroes, and received from said agent the amount of the sale thereof. In June, 1845, the legatees, under the will of P. Pendergrast, instituted their action of trover against the present defendant's intestate, Francis Foley, who was the purchaser of the negroes at the Sheriff's sale. Pending the action of trover, a bill was filed by the defendant in that action against the plaintiffs therein, praying for a perpetual injunction; and upon the trial of that bill in the Court below, the question in regard to the Statute of Limitations was made. From the time of the qualification of the executors of Pendergrast, and the settlement by them with D. Foley, in 1832, to the time of the commencement of the action of trover against Francis Foley, who claimed, under the title derived from Daniel Foley, more than twelve years had elapsed. The plaintiffsin the action of trover were therefore barred by the Statute of Limitations, provided the Statute run against them.

The Court below decided that the legatees, under the will of Pendergrast, were barred by the Statute, and there was a decree rendered, making the injunction perpetual; whereupon, the legatees...