Terrill v. Boulware

• Decision Date: 31 January 1857
• Citation: 24 Mo. 254
• Parties: TERRILL et al., Appellants, v. BOULWARE et al., Respondents.
• Court: Missouri Supreme Court

24 Mo. 254

TERRILL et al., Appellants,

v.BOULWARE et al., Respondents.

Supreme Court of Missouri.

January Term, 1857.

1. A., in the year 1784, died intestate, in the State of Virginia, possessed of certain slaves, leaving a widow and two children--B., a daughter, and C., a son--him surviving; certain of the slaves were allotted to the widow as dower slaves, and remained in her possession until her death, in the year 1816; B., the daughter, married and died before her mother, in the year 1812, leaving D., her husband, and several children her surviving. In 1816, after the death of the widow of A., proceedings for a partition of the dower slaves were instituted by C. against the children of B.; in this suit in partition D. appeared and acted as guardian ad litem for his children, and, an allotment having been made to D.'s children, hetook possession of the slaves so allotted, and afterwards brought them to the State of Missouri. Held, 1st, that D. by acting as guardian ad litem for his children in the suit in partition, did not become a party to such suit in such sense that he would be concluded by the judgment rendered in behalf of his children, nor would he be estopped thereby to controvert the title of his children; 2d, that by the law of the State of Virginia said slaves, upon the death of A., in the year 1784, descended to and vested in his heirs--B. and C.--subject to the widow's dower; that the interest so vested in B. passed to D., her husband, and not to her children.

Appeal from Randolph Circuit Court.

Francis Conner, in the year 1784, died intestate in the State of Virginia, possessed of the family of slaves in controversy in this suit. He left him surviving his widow, Sarah, and two children, Paul Conner, and Lucy Conner, the mother of the plaintiffs in this suit. Lucy Conner afterwards married Flemming Terrill, under whom the defendants in the present action claim title. Said Lucy died in the year 1812, leaving her surviving her husband Flemming Terrill, and several children, a portion of whom are plaintiffs in the present action. The slaves in controversy were assigned to Sarah, the widow of Francis Conner, as her dower, and remained in her possession until her death in 1816. After her death, Paul Conner instituted a suit for a partition of these slaves against the infant children of his sister Lucy, who appeared, by their father, Flemming Terrill, as guardian ad litem. In this suit, an allotment of the slaves in controversy was made to the children of said Lucy; and their father, F. Terrill, took said slaves into his possession, and afterwards, upon his removal to the State of Missouri, brought them with him and continued to hold possession of them until his death in the year 1853. Wm. F. Boulware, defendant, is in possession of the slaves in controversy, as executor of the will of Flemming Terrill. The facts stated above are admitted before this court. The plaintiffs suffered a non-suit in the court below in consequence of the giving of certain instructions to the jury. These instructions it is unnecessary to set forth.

Young, Clark and Davis, for appellants, cited Rev. Code of Virg. 1819, Tit. Wills, Descents, Slaves, pp. 355, 382, 431; Wood v. Simmons, 20 Mo. 368; 10 Mo. 372.

Napton, Buckhartt, Prewit, for respondents, cited Dad ev. Alexander, 1 Wash., Va., 30; 2 Call. 470; Drummond v. Snead, 2 Call. 483; Bank's Adm'r v. Markberry, 3 Litt. 276; Ewing's Heirs v. Handley's Heirs, 4 Litt. 346; 1 Tuck. Com. 331; Robinson v. Brock, 1 H. & Munf. 213; Chichester v. Vass, 1 Munf. 115; Ball v. Townson, 4 Watts & S. 559; 3 Gill & Jo. 384; Angell on Lim. 206; Foulk v. Brown 2 Watts, 209; 8 Barr, 184.

SCOTT, Judge, delivered the opinion of the court.

By the act of 1792 all negro and mulatto slaves in all courts of judicature within the commonwealth of Virginia were held, taken and adjudged to be personal estate. Slaves being personal estate, a gift of them might be made by parol. But no question was raised in the court below whether the admissions of the testator, Terrill, were not evidence of a gift of the slaves to his children.

One point relied on was that Terrill, by acting as guardian ad litem for his children in the suit for partition of the slaves, in which suit the slaves in controversy were allotted to his children, is now estopped from controverting their title If the plaintiffs had set up a gift by their parent, such conduct would have been strong evidence in support of such a claim. If Terrill had been a party to the proceeding and the judgment in partition had not been appealed from, he would have been concluded, however erroneous it might have been, for the matter would have passed in rem judicatam. But we know of no rule which makes an attorney or guardian ad litem to a suit a party in such sense as would render the judgment conclusive upon him. In matters where admissions may affect the rights of the party, such conduct would be evidence against the party; but we do not see on what principle he would be estopped from afterwards asserting his rights. If the plaintiffs would make this an estoppel in pais, we do not see that any of the elements of such a pretension exist in the case. An estoppel in pais arises where a party, by his conduct or admissions, induces others to act upon the faith of them; and where, if he were afterwards permitted to prove such admissions or conduct were false, such presumption would operate as an injury to the persons who were misled by them. In the present case there is no pretense that Terrill by his conduct has induced any action of others whereby they would be injured if he were allowed to prove that the inference deduced from his conduct was false. The case falls within the principle that the admissions of a party under a misapprehension of his legal rights do not affect him.

The main point relied on by the plaintiffs is that--as at the death of Francis Conner, the grandfather of the...