Smoot v. Wathen

• Decision Date: 31 January 1844
• Citation: 8 Mo. 522
• Court: Missouri Supreme Court
• Parties: SMOOT v. WATHEN, ADMINISTRATOR, &c.

8 Mo. 522

SMOOT

v.WATHEN, ADMINISTRATOR, &c.

Supreme Court of Missouri.

January Term, 1844.

ERROR TO CAPE GIRARDEAU CIRCUIT COURT.

LEONARD, for Plaintiff. 1st. The plaintiff below is not a creditor or purchaser within the meaning of the fifth section of the act for the Prevention of Fraud, passed January 4th, 1825, Rev. Stat. of 1825, p. 402, or of the fourth section of the same act, revised and passed February 11, 1835, Rev. Stat. of 1835, p. 283, and entitled by virtue of this act, to insist that his intestate acquired title to this slave by five years' continued possession, there being no registered deed or will manifesting the loan. 5 Munf. R. 305; Tucker's Com. 345-6. 2nd. The statute of limitations did not commence running upon the possession of Mr. Smoot, the husband, until that possession became adverse to the party having the title. Gillespie v. Gillespie's Heirs, 2 Bibb, 92; Montague v. Lord Sandwich, Esp. N. P. R. 595. 3rd. The verdict was clearly against the evidence. The original possession of the husband was under a loan, and not a gift to the wife, and never became hostile until 1836, when he refused to surrender the possession so acquired, and thereby converted his holding into an adverse possession. Jackson v. Parker, 3 Johns. Cases, 124; Brandt v. Ogden, 1 Johns. R. 158; Jackson v. Thomas, 16 Johns. R. 300; Jackson v. Waters, 12 Johns. R. 367.

SCOTT and ZEIGLER, for Appellee. One point only seems to arise in this case: Did not the slave, Mary, become the absolute property of Smoot, he having, in right of his wife, an acknowledged claim to the slave, and having had the undisturbed possession for nearly six years? This was either a gift or a loan, by Susan Block, of the slave to Rachel Block, alias Smoot, her daughter, wife of William Smoot. If a gift, the consideration being good--that of marriage--and as possession bona fide accompanied the gift, then the property was Smoot's, the husband, in the right of his wife. Laws of 1825, p. 402, § 3; Laws of 1835, p. 283, § 4. If a loan, as is pretended, then the possession of Smoot was ripened into a title, as he remained in peaceable possession nearly six years without any demand made or pursued by due course of law by the pretended lender. Laws of 1825, p. 402, § 3; Laws of 1835, p. 183, § 5. Smoot does not appear to have had anything to do, or to have been consulted or apprised of the pretended arrangements between Susan Block and Rachel, his wife. It is not necessary that in such cases the possession should be adverse, as is pretended by the plaintiff in error The statute does not contemplate that the possession should be adverse, to give the title.

NAPTON, J.

Wathen, administrator of William Smoot, deceased, brought an action of detinuc against Rachel Smoot, widow of the deceased, to recover a slave named Mary Ann. The defendant pleaded non detinet. Issue was taken thereon, and the cause was submitted to the court, neither party requiring a jury. The court found, that the defendant did detain the slave, and that her value was five hundred and fifty dollars. It was therefore adjudged, that the plaintiff have and recover said slave, or in default thereof, that he recover the damages, &c. A motion for a new trial was made and overruled, and exceptions taken to the opinion of the court.

The facts preserved by the bill of exceptions were the following: In 1831, the County Court of Cape Girardeau county ordered a division of the slaves of Simon Block, deceased, among his heirs. Commissioners were appointed to make the division, and it appearing, from the report of the commissioners, that division in kind could not be made, an order of sale was made, and a sale took place in pursuance of such order. At the sale, Susan Block, administratrix and guardian of her three minor children, Rachel, Zipporah, and Rebekah, purchased three slaves, Mary Ann, Charlotte, and Jane, for the use and benefit of these minors.

In December, 1832, Rachel Block intermarried with William Smoot, and some few months thereafter went to house-keeping. Mrs. Smoot applied to her mother for the slave, Mary Ann, which request Mrs. Block at first declined acceding to, alleging that said slaves, Mary Ann, Charlotte, and Jane, were of unequal value, and designed for all her wards. At the instance of John Juden, who had intermarried in the family, Mrs. Block consented that Mrs. Smoot should have the slave, with the understanding that said slave was to be returned to Mrs. Block whenever demanded. It does not appear that Smoot was privy to this understanding, or knew anything of the arrangement between his wife and Mrs. Block.

In 1836, in consequence of the marriage of Zipporah, another daughter of Mrs. Block, she applied to the County Court for an order for a division of said slaves, which was granted, and commissioners appointed. Application was made to Smoot for the girl, Mary Ann, but he refused to deliver her up. Measures were taken to institute a suit, but nothing was done; and in December, 1838, Smoot died, having retained possession of the slave from the time of his marriage, or shortly thereafter, until his death.

Subsequently to the death of Smoot, in 1839, a division of the slaves was made, and Mrs. Smoot was permitted to retain possession of the girl Mary Ann by paying to her sisters, Zipporah and Rebekah, seventy or eighty dollars, which the commissioners who made the division supposed to be the amount by which said slave Mary Ann exceeded the others in value.

The bill of exceptions, after reciting the testimony, concludes as follows: “The plaintiff read to the court the statute law of Missouri, and contended that the possession of said slave in controversy by said Smoot, from the time of his intermarriage with defendant to the time of his death, in December, 1838, vested a title thereto in said Smoot by possession. The defendant contended, that such possession by William Smoot, from the time of such intermarriage to the time of his death, did not vest any right to said slave in said William Smoot, unless the said William Smoot held the slave adversely to said Susan Block, or the rest of said wards; and that the five years' possession by said William Smoot, to vest a title to said slave under the law, could only commence from the time of his refusal to have a division in 1836. The court decided the law in favor of the plaintiff; that the said five years' possession by William Smoot, required by law to vest a title to said slave, commenced from the time he came into possession thereof on his intermarriage, and not from the time of his refusal to have the slave sent to the commissioners for a division in 1836. To which decision of the court the plaintiff excepts,” &c.

The bill of exceptions does not show, in a very satisfactory manner, upon what ground the decision of the Circuit Court was based, or what specific point that court intended to decide. I will, however, consider the question in the different aspects in which it has been presented in the briefs.

1. The statute of frauds, it is believed, has no application to this case. Supposing this to have been a loan, and therefore made void by that statute as to creditors and purchasers, the property, as between the parties, is still considered a loan, and when the loanee dies possessed, the property is not assets, nor can it be recovered as such by the administrator. It is liable to the creditors in another form of proceeding. 5 Munf. 305; 1 Tuck. Com. 346.

2. It is well-settled, that the five years' possession, which gives title under the statute of limitations, and enables a defendant to maintain his possession, or a plaintiff to sustain his action, must be an adverse possession. Clark v. Hardiman, 2 Leigh. 351; Brent v. Chapman, 5 Cranch, 358. The Circuit Court, it is stated in the bill of exceptions, held that the possession requisite to give title in Smoot commenced from the time of his first getting possession of the slave after his marriage, and not from the time when he refused to deliver her to the commissioners. The...