Turner v. Belden

• Decision Date: 31 January 1846
• Citation: 9 Mo. 797
• Parties: TURNER v. BELDEN, ADM'R.
• Court: Missouri Supreme Court

9 Mo. 797

TURNER

v.BELDEN, ADM'R.

Supreme Court of Missouri.

January Term, 1846.

APPEAL FROM HOWARD CIRCUIT COURT.

CLARK, for Appellant. It is insisted by the appellant that the Circuit Court committed error, for the following reasons: 1. The rights of the plaintiff's intestate to the slaves, depended on the fact whether the defendant had given them to his daughter. The evidence of a gift was not by any means certain; indeed there was no evidence of an absolute gift, but that the slaves were placed in the possession of Pulliam upon trial, with an expressed intention to give them, if they suited--the possession being delivered to Pulliam with this understanding--the gift was not completed, and was not intended to be until the slaves had been tried, and the defendant informed that they suited. It was only a promise to give on condition, which condition was never complied with. The third instruction, therefore, was too broad, and is in contravention of a well settled principle of law. 2 Iredell N. Car. R. 361, Adams v. Hays; 2 Ala. R. 118, Sims v. Sims; 2 Johns. R. 52, Noble v. Smith. 2. That the possession of Pulliam in this case, under the circumstances, was the possession of Turner; the slaves having been placed in his possession by Turner for a particular purpose, he held them as bailee for Turner, the right to him not naving passed by the special possession, and could not pass according to the evidence, until Pulliam notified Turner that the negroes would suit. See 8 Mo. R. 346, Allison v. Bowles; Hardin, 531, Woods v. Chism; 1 Dana Ky. R. 110, Pool v. Atkinson. 3. That the question of title in this case depending on possession, and the manner in which it was acquired, it was not competent for the plaintiff to use in evidence Pulliam's declaration claiming the property as his. Such a rule would enable any person having property in his possession for a special purpose, to gain the absolute title by a mere claim of right, although such claim was in contravention of the principles of true honesty and fairness. By such a rule, a father's intended bounty could be controlled by a mere claim before the gift had actually been made; this being the case, the court ought to have given the fifth and sixth instructions asked for by the defendant. See 1 Johns. R. 340, Warring v. Warring; 8 Wend. 480, Welland Canal v. Hatheway; 4 Cowen, 587; Jackson v. Cole, 2 Rawle, 241; 2 J. J. Marshall, 4, Talbot v. Talbot; 4 Bibb, 270, Canole v. Early; Cowen's notes on Phil. Ev., 154, note 165; Greenleaf's Ev. 120. 176, 203, 223; 5 Mo. R. Wilson v. Woodruff; 8 Mo. R. McLean v. Rutherford. 4. That this being a suit between Pulliam's representative and Turner, none of the reasons usually invoked in favor of purchasers and creditors can apply. It is a pure question of right, depending on the facts necessary to constitute a gift, there being no pretense of a purchase or other conveyance. It is contended that the facts proved do no constitute a gift, and the instructions given by the Circuit Court on that branch of the case were erroneous. 8 Mo. R. 346, and authorities there cited. 5. That admitting the correctness of the general principle, that the declarations of one while in possession of property may be used as evidence in his favor, yet such a rule is never applied as between the parties, unless to explain the nature of possession, certainly never to give title. But in this case the court allowed the declaration of Pulliam to go in evidence, not only while he had possession, but before he obtained it; and also as to how he got it, and that, too, when the question to try was his title to the property claimed. Upon the principle decided by the Circuit Court in this case, a person who had the possession of property on loan, or for any special purpose, might acquire the absolute right by holding over, and when he was sued, just prove that he had claimed the property as his while he had it, and that claim made, perhaps, in fraud of the true owner, will secure him the property. See authorities cited on the 2nd and 3rd points. 6. It is very clear that the verdict in this case is against the evidence; there is not a particle of evidence that Pulliam ever claimed the children of Ellen, or that they were ever in the possession of Turner. A new trial ought then to have been granted, admitting that the court committed no error in ruling the law on the trial.

LEONARD & DAVIS, for Appellee. The defendant objects to the declarations of Pulliam given in evidence by plaintiff, made by Pulliam while in possession of the slaves, that they were his own property. In this we think the Circuit Court decided the law correctly. These declarations are part of the res gestae. See Williams v. Vanmeter, 8 Mo. R. 342; Greenleaf, 120; 2 Phil. on Ev. 585, 596-7-8, 601-2. It is also objected, that the court below permitted the plaintiff to prove that Turner, at the time of the marriage of his daughter, and ever since, was wealthy. We think that where a man's daughter marries, and he sends slaves along with her, his circumstances being sach that he could well spare them, that the law will construe his act as an intent to give, in the absence of any declarations touching the subject. See 5 Monroe, 503; 3 Hen. & Mun. 132, Moore's Adm'r v. Dawney et al.; Mulliken v. Greer, 5 Mo. R. 489. Turner's counsel also contends that the letter written by the intestate (Pulliam) to the witness, Pearson, and read in evidence to the jury, was improperly permitted by the court. The letter was produced by the witness, Claiborn F. Jackson, and offered as rebutting evidence to the testimony of defendant's witness, Warson, who had testified that Turner wrote the memorandum sent by him with one Short, who went after the negroes to the house of Pearson. Witnesses Pearson and Jackson having proved this letter to be the same spoken of by Warson before it was read to the jury. See instructions of Turner withdrawing the effect of the letter from the jury. It is also insisted that the fifth and sixth instructions asked by Turner on the trial below, were improperly refused. That depends upon the admissibility of Pulliam's declarations, as to his ownership of the slaves while in his possession, and treated by him as his own property. See also 4 McCord, 262; Pool v. Bridges, 4 Pick. 378, and cases referred to as above; 2 J. J. Marshall, 383. Also the giving of the 3rd, 4th, 5th and 6th instructions asked by the plaintiff below, is assigned for error. It is believed that instructions were correctly given. When Turner left Pearson's he instructed him to deliver the negroes to Pulliam or his order, in the event he got them back from Fizer. The order, therefore, sent by Short was in pursuance of the original authority given by Turner.

The record shows that the negroes were continuously in the possession of Pulliam, up to the time of his death, from the time they came from Pearson's.

NAPTON, J.

This was an action of trover brought by the administrator of E. R. Pulliam, to recover the possession of a negro woman named Ellen and her two children. The plaintiff had a verdict and judgment.

The facts of the case, so far as they are deemed material, were as follows: In 1841 Pulliam married the daughter of Turner, and shortly after the marriage went to housekeeping. Upon this occasion, Turner sent with his daughter a servant girl, named Sarah, who remained in the possession of said Pulliam until the winter of 1841-2; when the girl was returned to Turner on account of her not suiting his daughter, Mrs. Pulliam. In January, 1843, Turner applied to one Pearson, of Saline county, for the purchase of the slave, Ellen, and informed Pearson that it was his wish to purchase a servant for his daughter, Mrs. Pulliam, and if the girl Ellen would suit, it was his design to give her to his said daughter. After some negotiation on the subject, Pulliam and Turner having both seen the girl, the purchase was concluded; the slave and her children were sent to Pulliam, and the purchasemoney paid by Turner. Pulliam continued in possession of the slave until his death, which took place in November, 1842. Evidence was given on the part of Turner to show that the gift to his daughter was not absolute, but upon the condition that if the slave pleased her, it was to be her's; if not, that the slave should be returned. The plaintiff gave evidence conducing to show the contrary; and amongst other evidence, the declarations of Pulliam whilst he had possession of the girl, of his absolute title, were given in evidence. To the admission of this testimony exceptions were taken.

The court, at the instance of the plaintiff, instructed the jury as follows: 1. If the jury believe from the evidence that the defendant gave the slaves in controversy, or any of them, to his daughter, who was then the wife of...