Pope v. Jenkins

• Decision Date: 31 July 1860
• Citation: 30 Mo. 528
• Parties: POPE et al., BY THEIR GUARDIAN, Appellants, v. JENKINS, Respondent.
• Court: Missouri Supreme Court

30 Mo. 528

POPE et al., BY THEIR GUARDIAN, Appellants,

v.JENKINS, Respondent.

Supreme Court of Missouri.

July Term, 1860.

1. One P., in Kentucky, in the year 1843, being insolvent, mortgaged his property, including a slave named Ellen, to secure certain liabilities. No proceedings to foreclose the mortgage were instituted, but the mortgagees set up the property for sale at public auction, P. being present and consenting to the course pursued. The mortgagees purchased the slave Ellen at this sale, took and kept possession of her for two years and then sold her to one M. for a full price. M. gave said Ellen to the children of P. in 1846, and executed a deed to them in 1850, which was duly recorded in Kentucky. In 1851 P. moved with his family to Missouri, and in the same year sold said slave to one J. Held, in a suit for the possession of said slave and her increase, brought by the children of P. against said J., that, whether P.'s equity of redemption was extinguished or not by the sale by the mortgagees in Kentucky, the legal title was in the plaintiffs; that such equity of redemption, if unextinguished, did not stand in the way of a recovery by plaintiffs, the defendant not wishing to redeem.

2. In actions for the possession of personal property, the plaintiff, if he succeed, has the choice of taking the property or its value. By the value of the property is meant its value at the time of its valuation by the jury. If slaves, for example, are sued for, and they die in the hands of the defendant during suit, the plaintiff has no just claim for more than damages for their detention up to the time of their death. If the depreciation in value or death be produced by ill-treatment or neglect, or the slaves be sold to another, the rule may be different.

Appeal from Platte Circuit Court.

This suit was commenced March 5, 1856. The facts in evidence sufficiently appear in the opinion of the court.

Plaintiff asked the court to instruct the jury as follows: “1. Before the defendant can set up any claim to the negroes, he must show that he is a purchaser from Cyrus Miller, the donor, or from the children, his donees. 2. If the jury find from the evidence that Miller was an innocent purchaser of said slave Ellen from Bruce, Fisher, and others, for a valuable consideration--took said negroes into his possession and kept them some time, and then in 1846 gave said negroes into the possession of the children of Alamander and Mary Ann Pope, plaintiffs as aforesaid, and that the children have ever since retained the possession of the same under the gift aforesaid, then they will find for the plaintiff. 3. If the jury believe from the evidence that Alamander Pope, the father of these children, mortgaged said negroes, and that said negroes were sold under said mortgage to Bruce and Fisher and others by the knowledge and consent of Pope; that Miller afterwards purchased from them for a valuable consideration and gave said slave to the plaintiffs, and evidenced said gift by deed acknowledged and recorded as the laws of Kentucky require, then the title vests in the children, and Alamander Pope, or Jenkins claiming under him, are estopped from saying that no title passed to said children. 4. If Alamander Pope mortgaged said negroes to Bruce, Fisher and others, and said negroes were sold under said mortgage with his knowledge and consent, then said Pope, or Jenkins, claiming under him, are estopped from saying that no title passed from the mortgagor. 5. If Miller, at the time of the gift, delivered the possession of said slaves to the children of Alamander and Mary Ann Pope, and that said children lived with their father under his control, and were so living at the time defendant purchased from the said Pope, then the possession of the father was the possession of the children, and the law presumes that Jenkins purchased with notice; and unless he shows he purchased from Miller or the children of Pope, he acquires no title, nor had Alamander Pope any title or right to convey the same or any interest therein. 6. If the jury believe from the evidence that Miller was an innocent purchaser for a valuable consideration of said negro; that he gave said negro and gave them the possession thereof, then it is immaterial whether Pope at the time of the mortgage contemplated a fraud or not, and Jenkins, his assignee, acquired no title to the property in question. 7. The answer admits that the slaves bought by Jenkins are the same sued for and described in plaintiff's said petition. 8. The answer admits the appointment of Moore as guardian, and his substitution as one of the plaintiffs in this cause. 9. If the jury find for plaintiff, they will also find the value of the negroes without taking into consideration the death of either of them. 10. That the certificate of the clerk endorsed on the deed of gift from Cyrus Miller to the children is evidence, or evidence that it was recorded as therein stated. 11. If the jury find for plaintiff, they will find the value of the slaves now living.” Of these instructions, the court gave those numbered seven, eight, ten and eleven, and refused the others.

The court, of its own motion, gave the following instructions: “1. If the jury believe from the evidence that the negro Ellen was conveyed by deed of mortgage to Henry Bruce, William Bruce, Richard Fisher, and Jachaar P. Fisher, by Alamander Pope, and that subsequently thereto the negro was sold by the mortgagees at public sale with Pope's consent, and that at such sale the negro was bought by the mortgagees, then such sale is void as to a subsequent purchase from Pope without notice; and unless they believe that defendant purchased of said Pope with such notice, they will find for defendant. 2. If the jury believe from the evidence that the negro Ellen was conveyed by deed of mortgage as above, and that subsequently thereto the negro was sold at public sale by said Pope, with the consent of the said mortgagees [and they] became the purchasers for a valuable consideration, the sale was valid; and if they believe Miller purchased from them and by deed of gift gave the negroes to plaintiff and delivered the possession of the negro at the time, they will find for plaintiff.”

Vories, Hall & Spratt, for appellants.

I. The court erred in permitting the defendant to file supplemental answers. The court erred in giving and refusing instructions. The sale by the mortgagees was, under the circumstances, a good and valid transfer of the property in the slave. Miller assigned a good title to the slave. (11 Mo. 555.) The plaintiff's title is therefore good. The court erred in its ruling as to the measure of damages. The defendant gave bond. He retained them at his peril, and is responsible for them or their value.Woodson, for respondent.

I. Under the law of Kentucky the sale to the mortgagees was invalid. (1 Monr. 44; 3 Litt. 410; 5 Litt. 202; 9 Dana, 190; 6 Dana, 474; 12 Mo. 106; 1 Mor. & Brown's Dig. 449.) Defendant was an innocent purchaser. The plaintiffs were not entitled to recover the price of the dead slaves in any case. (R. C. 1855, p. 1243; 13 Mo. 612; 24 Mo. 269; 25 Mo. 301.)

NAPTON, Judge, delivered the opinion of the court.

This suit was brought by the children of Alamander Pope, through their guardian, to recover several slaves sold to the defendant by their father. The defendant gave bond as required by the statute, and retained possession of the slaves. During the pendency of the suit three of the slaves died, and this fact was brought to the attention of the court in a supplemental answer filed by the defendant.

It appears, from the evidence preserved at the trial, that Alamander Pope, in 1843, lived in Boyle county, Kentucky; that at this time he was hopelessly insolvent, and in order to secure certain of his friends, who had become his securities to a large amount, he had executed a mortgage of his land and slaves, and perhaps all his property, including a negro woman named Ellen, who was the ancestress of the slaves now in controversy. As the mortgaged property was believed to be insufficient to pay the mortgage debt, no proceedings to foreclose were instituted, but the mortgagees, to save expense, as they alleged, set up the property at public auction, Pope being present and consenting to the course pursued. The negro woman Ellen was purchased by the mortgagees at this sale, taken into possession for two years, and then sold to Cyrus Miller, a brother-in-law of Pope, for a full price. Miller gave the woman to the children of Pope in 1846 and executed a deed to the children in 1850, which was duly acknowledged and recorded according to the law of Kentucky. In 1851 Pope and his family removed to this state, and the defendant's title is derived from a sale made to him by Pope.

We do not conceive it necessary to allude to the instructions in detail which the court gave the jury on the trial of this case. It will be seen, upon an examination of them, that the case was made to turn principally upon the validity of the sale made by the mortgagees in 1843. The jury were instructed, that if the sale was made by the mortgagees with Pope's consent, it was void so far as the defendant purchasing from Pope without...