Vaulx v. Campbell

• Decision Date: 31 July 1843
• Parties: VAULX v. CAMPBELL, EX'R, &C.
• Court: Missouri Supreme Court

8 Mo. 224

VAULX

v.CAMPBELL, EX'R, &C.

Supreme Court of Missouri.

July Term, 1843.

ERROR FROM GREENE CIRCUIT COURT.

WINSTON, for Plaintiff. 1. The court erred in permitting the declarations of the Sims' to go to the jury, such declarations being no more than hearsay evidence. 2. The court erred in giving the defendant's instruction, such instruction leaving the jury to judge of what constituted a legal title to the property.

PHELPS, for Defendant. 1. That court did not err in admitting the declarations of the young Sims' as to the ownership of the property, as they were in possession of the same. 2. That if the sons of the deceased held themselves out to the world as the owners of the property, and defendant intermeddled with it by their consent, this will not render him liable as an executor de son tort. 1 Com. Dig. 378, ch. 2; 1 Esp. N. P. 251; 1 Esp. R. 3. That plaintiff has not shown that defendant was an executor ae son tort, and the verdict is therefore for the right party. 4. That if improper evidence was received, the court will not set aside the verdict, provided there be sufficient evidence without it to authorize the finding of the jury. 1 Taunton, 14. And if, on the whole, judgment is given for the right party, it ought to stand. Mo. R. 163, 313, 588, 746.

TOMPKINS, J.

Joseph Vaulx commenced an action of debt in the Circuit Court of Greene county, against John P. Campbell, and the judgment of that court being rendered against Vauix, he brings his writ of error to this court, in order to reverse the judgment of the Circuit Court. The suit was brought on two single bills obligatory for $325 each, made by Isham Sims, sen., deceased, and to maintain his suit the plaintiff introduced evidence to prove that Campbell, the defendant, had become liable as the executor of his own wrong by intermeddling with the property of the deceased.

After giving the bills in evidence, the plaintiff proved that Isham Sims, who executed said instrument of writing, died in the year 1835, and had never been in this part of the State, viz: Greene county; that he died possessed of ten or twelve negroes, two wagons and teams, and houschold and kitchen furniture, and that said property was brought here by Isham Sims and Thomas Sims, sons of the deceased; that said negroes were worth, on an average, about five hundred dollars each; that in the year 1806 or 1807, the defendant was going to the South with some negroes of his own, and young Isham Sims, son of said deceased, took the negroes of the deceased, and went with the defendant.

The witness stated that he had a demand against the said deceased, and that the defendant gave his note for the amount, which was about forty dollars. The witness then understood that young Isham Sims had secured the defendant for it. The witness saw, with the stock of the defendant, a mare, which had been owned by said Isham Sims at the time of his death, worth about fifty dollars.

The defendant then asked the witness to state what Isham Sims, deceased, told him in his life-time about the manner in which he came to the possession of some of said negroes; to which question the plaintiff objected, and the witness was permitted to answer the question, and the plaintiff excepted to the opinion of the court. The witness then stated that Isham Sims, the deceased, told him that he took six of those negroes from his father, without leave, in 1834 or 1835. The witness then being interrogated by the defendant, stated that the family of the said deceased did claim and use said property as their own, and exercise over it the rights of ownership by hiring, selling, &c. that the six negroes which Isham Sims, the deceased, took from his father, were brought back; but that a negro woman and her two children were not brought back, and that said woman and her children were worth one thousand dollars; that Isham and Thomas Sims, sons of the deceased, called the property their own.

The plaintiff then proved, by another witness, that he saw the said negroes in the possession of young Sims; that the defendant and young Sims went off together with the negroes, and with a wagon and team which young Sims called his own, the defendant taking away some of his own negroes; that after the defendant returned, he said he could have sold the negroes better, but Sims would not allow them to be separated. The witness being asked whether the defendant meant that he or Sims could have sold the negroes better, replied, ““judge for yourselves,” repeating what he had before said. This took place in the year 1837. The defendant proved that young Sims exercised the rights of ownership over these negroes, and other things not thought material to notice here.

No other testimony was given in the cause by the defendant. The plaintiff then proved that young Isham Sims said that the defendant sold the negroes while he was sick, and that the tavern-keeper told him, said Sims, that he was raised up in the bed, to sign the bill of sale; that said Sims also stated to witness, that there was a difference between himself and the defendant about a draft, for which the negroes, taken away by young Sims and the defendant, had been sold; that young Sims told the witness they were both interested in it, and that the defendant held it and refused to give it up, until some demands which the defendant had against young Sims were satisfied or secured; that the defendant told the witness he had some demands against said Sims, and would not surrender the draft.

On a review of this evidence, the plaintiff in the action is found to have produced no evidence against the defendant stronger than this, that the defendant was going to the South with some...