Withers ex rel. Maddox v. Shropshire

• Decision Date: 31 March 1852
• Citation: 15 Mo. 631
• Parties: WITHERS, TO USE OF MADDOX, v. SHROPSHIRE.
• Court: Missouri Supreme Court

15 Mo. 631

WITHERS, TO USE OF MADDOX,

v.SHROPSHIRE.

Supreme Court of Missouri.

March Term, 1852.

On the 30th of March, 1848, William Maddox brought an action of assumpsit, with foreign attachment, against John E. Shropshire. On the same day the writ was levied on a negro as the property of said Shropshire, and a return not found, made as to the defendant. On the 28th of August, 1848, an appearance was made for Shropshire, by his attorney, Staunton Buckner. The plaintiff, who caused himself to be garnisheed on the writ of attachment, August 29th, 1848, filed interrogatories against himself, to make himself answer to his own suit, touching his indebtedness, and touching money, goods, chattels and effects in his hands, belonging to John E. Shropshire. On the 27th of March, 1849, Martha Shropshire, by her next friend, came into court, and by her interpleader claimed the negro that had been attached, as her own property, on which interpleader an issue was made up to be tried. On the same day John E. Shropshire filed a plea in bar, “defending the demand of the plaintiff.” On the 29th of August, 1849, the cause was tried before the court without a jury, a verdict was rendered for the interpleader, Mrs. Shropshire, and an order made restoring her the negro. A motion for a new trial made by the plaintiff was overruled. A motion to arrest judgment was also made by the plaintiff and overruled. The bill of exceptions shows: 1st. That John Withers died in 1838.2nd. That by his last will and testament, he devised to his wife certain negroes (of which the negro attached was one), during the life of his said wife, with power in her at any time during life, to divide said negroes among the five youngest children of the testator. Mrs. Mary Withers, the devisee for life, took possession of the negroes devised to her as stated, and held them till a few days before the levying of the attachment in this case, when she made the division contemplated by the will, allotting to Martha Shropshire, the interpleader, the negro in dispute, neither Shropshire nor his wife being present at the division. Shropshire and wife at the division lived in the State of Mississippi, but they were living in Missouri at the time of the decease of John Withers. 3rd. A few days after the division mentioned, the slave in dispute was attached in this suit as the property of John E. Shropshire. 4th. Neither Shropshire nor his wife ever had the actual possession of the negro in dispute; that Shropshire was insolvent and never had exercised any act of ownership over the said negro, in fact declined to do so. 5th. The negro was at the date of the attachment in possession of Wm. E. Maddox, the plaintiff, and had never been out of his possession, from the allotment up to the levy, old Mrs. Withers being at said Maddox's, who was her son-in-law. The plaintiff asked the following instructions which were refused: 1. That if the property in dispute was devised by John Withers to Mrs. Shropshire, and set apart for her by her mother, under authority of said will, it is liable to be attached for her husband's debts. 2. Mrs. Shropshire being a married woman, cannot maintain her claim to the property attached in this proceeding. The plaintiff excepted to the refusal of the court to instruct as asked, also excepted to the opinion of the court in overruling motions for new trial and in arrest of judgment, The plaintiff, Maddox, appealed from the judgment of the court rendered on the interpleader. On the 25th of March, 1851, a judgment was rendered against the defendant, John E. Shropshire, for the sum of $218 37 and $272 damages. The plaintiff below moved the court to correct the judgment so as to make the judgment special, as well as general, and to grant an award of execution against the negro in dispute, which motion was overruled, and the plaintiff excepted. The plaintiff below then prayed an appeal to the Supreme Court and the same was allowed.

JOHN D. DRYDEN, for Appellant. 1. At the moment of time that Mrs. Withers allotted to Shropshire or wife the negro in controversy (as she had the power under the will to do), a present estate in said negro vested in Shropshire, which he could during the coverture, without the concurrence of the wife, in his own name, sell, release or sue for and recover. Commonwealth v. Manly, 12 Pick. R. 173, 175; Taliaferro v. Taliaferro, 4 Call, 93; 2 Kent's Com. 195; 1 Chitty's Pl. 74. Such property would pass under a general assignment of the defendant in bankruptcy or under the insolvent laws. 2 Kent's Com. 138. 2. The choses in action of the wife vest absolutely in the husband, subservient only to her right of survivorship in case he does not convert them or reduce them to possession during the coverture. 2 Kent's Com. 135. 3. Any property of the defendant which can be seized or which is held by another for the defendant is subject to the writ of attachment. See 9th section of 1st article Attachment law, Rev. Code 1845; also 4th subdivision of 12th section, same article; Lee and others v. Tabor & Watson, 8 Mo. R. 322. The choses in action of the wife, which vest in the defendant (husband) do not form an exception to this rule. Wheeler v. Bower, 20 Pick. 563; Ashbrook v. Waters, 19 Pick. 354. 4. The general rule is that for the injuries done to the wife's personal...