Penrose v. Green

• Decision Date: 30 November 1827
• Citation: Penrose v. Green, 1 Mo. 774 (Mo. 1827)
• Parties: PENROSE v. GREEN.
• Court: Missouri Supreme Court

1 Mo. 774

PENROSE

v.GREEN.

Supreme Court of Missouri.

November Term, 1827.

ERROR FROM ST. LOUIS CIRCUIT COURT.

M'GIRK, C. J.

This was an action of detinue for a negro woman, a slave; verdict and judgment for the defendant in error, who was also the defendant below; pleas, non detinet.The facts of the cause, with the instruction refused and given, appear by a bill of exceptions.Many facts and propositions appear by this record which are not of importance to be noticed.I will, therefore, proceed to the point on which I believe this cause must be decided.It appears that one Edwards recovered judgment in the Circuit Court of St. Charles county against one Clement B. Penrose, and on that judgment sued out execution and levied the same on the slave in question, which the sheriff sold under that execution to Edwards, and that Edwards accordingly took possession The plaintiff, Mary B. Penrose, immediately commenced an action in the Circuit Court(which was removed to the District Court of the United States), against Edwards for this slave; to which action Edwards pleaded several pleas, among which were property in himself; and, secondly, property in Clement B. Penrose, both of which were traversed.Upon the trial the jury found that the slave was not the property of said Edwards, and that she was the property of Clement B. Penrose; upon which a return was awarded.

Clement B. Penrose soon afterwards executed a bill of sale of the slave to the plaintiff, and the slave then being in his possession, made a delivery to the plaintiff.The marshal soon after, by a writ de retorno issued, delivered the slave to Duff Green, as the agent of Edwards, by which agency, and by no other claim, Green held the slave when this action was brought against him by the present plaintiff.Upon this state of facts the plaintiff's counsel on the trial prayed the court to instruct the jury that the transcript of the record in the suit between the plaintiff and Edwards, as given in evidence, is conclusive that the property in the slave was not in Edwards.Second.That said record is conclusive evidence that the property in the slave was, at the commencement of the suit therein mentioned, in Clement B. Penrose.Third.That the defendant is estopped from showing title to the slave to be in Edwards at any time prior to the commencement of the suit between Mary B. Penrose and Edwards.Fourth.That the deed from C. B. Penrose to Mary B. Penrose is conclusive evidence against the defendant in this case.Which instruction the court refused, but instructed the jury that if they believed the deed from C. B. Penrose to Mary B. Penrose was fraudulent, they ought to find for the defendant.

The errors relied on are two: first, that the court refused to give the instruction required; and, secondly, that the court erred in giving the instruction it did.

Whether the court erred on the last point depends mainly on the question, did the court err on the first point?

The first point is, in substance, what is the effect of a plea of property in a stranger, in an action of replevin, when it is found for the party pleading it?Edwards plead property in himself; that was found against him; also property in a stranger, which was found for him.This finding must have some effect.It had the effect to entitle him to a return.The law is that property in a stranger is a good plea, either in bar or...