Woodson v. McClelland

• Decision Date: 31 May 1837
• Citation: 4 Mo. 495
• Parties: WOODSON & TRIGG v. MCCLELLAND.
• Court: Missouri Supreme Court

4 Mo. 495

WOODSON & TRIGG

v.MCCLELLAND.

Supreme Court of Missouri.

May Term, 1837.

APPEAL FROM THE CIRCUIT COURT OF BOONE COUNTY.

Sarah McClelland, the appellee, filed her bill against the appellants, they answered, and she replied. Issues were made up, which being found for her, she had a decree to reverse which they appeal to this court. The complainant in her bill, states that James McClelland, her late husband, in his life-time received from the estate of her father in her right, a sum of money with which he purchased a boy slave called James, which by his deed, executed in his life-time, he conveyed to her; that said deed was delivered to David M. Hickman, for safe keeping. After the death of her said husband, the defendants, Woodson and Trigg administered on his estate and took the boy James into their possession, as a part of the estate of their intestate. Their answer denies any knowledge of the alleged consideration, received by the intestate from the estate of the complainant's father, and states that it is doubtful whether the estate of the deceased will be sufficient to satisfy the creditors, and they require that the complainant be held to prove her statements. On the hearing of the cause before the Circuit Court, the defendant moved the court to dismiss the bill, and they now contend that on that motion the court ought not only to look into the bill to see that it contains equity, but also, to examine whether the Circuit Court had before it evidence sufficient to justify it in decreeing against them.

P. R. HAYDEN, for Appellant. The defendants admit that the deceased did purchase the negro with money by him received in right of his wife of the estate of her father, deceased, and that some considerable time after the purchase, and after the said McClelland had had the slave in possession, he made a deed of gift of him to his wife; but they deny that the said McClelland ever gave the possession of the slave or the deed of gift to the complainant.

They insist that the gift was voluntary, and void therefore, both in law and in equity; that it was, and is, void at common law, because the husband and wife by the principles thereof, are considered and esteemed as but one person, and incapable of making to each other such conveyances. See 1 Coke on Littleton, p. 3, (a); same book, 112, (a) section 168; 7 Bac. Abr. 366. That it is void under our statute, because by it, to be valid, the deed of gift should have been proved or acknowledged, and recorded, &c., which has not been done in the present case: See Digest of Statutes, 1825, 745, § 31. They insist that the gift is void in equity, because it was made without consideration, and that it was purely voluntary; that the donor was indebted when he made it; that he died indebted, and that it is wholly uncertain whether after the payment of his debts there will remain in the hands of the appellants, his administrators, any effects of the deceased, real or personal, to be distributed, &c. They contend that the inquiry into the solvency or insolvency of the said James McClelland, deceased, is collateral to the issue made between the parties in this cause, and that a court of equity cannot, nor will not, for the want of proper parties, and before the final settlement of the estate of their intestate, undertake to decide whether the slave donated, may or may not be needed in the payment of the debts of the deceased.

S. KIRTLY, for Appellee. I propose a preliminary inquiry, that I insist must make short work of this case. Are the errors proposed to be inquired into before this court? The statute provides that no exception shall be taken here to anything not expressly decided in the court below. In this case the issues made by the parties under the new revised code, were submitted to the court without the intervention of a jury, and were found for complainant, there was no motion for a new trial on the issues, or in arrest of judgment. The only error, if any, was in the finding of those issues; for the issues being found as they were, the decree followed of course. These trials of issue in chancery are on the same footing as trials at law. 1 Stat. of Mo. 511, art. 3, and p. 522, § 31; and it has been settled by this court such errors cannot be revised on such a record as this. In Davidson v. Peck, (4 Mo. 438) it is decided that, if a Circuit Court sitting as a jury, find erroneously, its judgment will not be reversed without giving the Circuit Court the opportunity to correct that error; this court, in that case, said the objection came too late, without a motion to arrest the judgment. In Swearingen v. Newman, 4 Mo. R. 456, the same principle is sustained, and these matters in chancery and common law are put on the same footing. That decision in which the very point now under consideration was decided, I think conclusive as to this case.

In the further considering this case as far as the bill of exceptions exhibits it, I insist in the first place that, by the instrument set out in the bill and answer of the 31st of December, 1830, the appellant's intestate made a legal and valid settlement of the slave in controversy on the complainant, which cannot be impeached or set aside by the defendants in any event. Col. McClelland made this settlement not only in consideration of the marriage, which is in itself a valuable consideration for the agreement, and sufficient to give validity to the settlement against all persons except antecedent purchasers and creditors, as is clearly laid down in Kent's Com. 145, and ably adjudged in Reade v. Livingston, 3 Johns. Ch. R. 481: and the numerous authorities, English and American, there quoted, but also in consideration of receiving the money given for the slave, or the slave himself, by and in right of the complainant from the estate of her father, John Hunt, deceased. This, though denied by the answer, is admitted by Col. McClelland in the instrument, and abundantly proved by the witnesses. Independent then of the consideration of marriage, it was not a mere voluntary settlement, for it has been repeatedly held that such a settlement, after marriage, is good, provided the husband has received a fair and reasonable consideration for the thing settled, so as to repel the presumption of fraud; and such is the precise language deduced from the authorities on this subject; see 2 Kent, 146. It is held to be a good and sufficient consideration if the wife makes a charge on her equitable estate for the benefit of the husband, or even agrees to part with a contingent interest. It is said the amount of the thing settled should bear some reasonable proportion to the consideration received. In this case the complainant had a family of children by a former husband, as appears by the instrument itself, and the negro, settled by the husband, also having children by a former wife, was a part, but how small a part does not appear, of the portion of complainant from the estate of her father. Surely there could be no case whereby every principle of right and justice a settlement of the kind could be more loudly called for, and ought to be so little questioned, especially by the husband of those very children of Col. McClelland, by the former wife, I think the propositions above laid down are well sustained by the authorities referred to, as also 1 Atk. 190; 2 do. 518; 2 Ves. 16; 10 Ves. 139. I rely in the second place that if this could be considered a voluntary settlement without any valuable consideration known to the law, which evidently it is not, it is yet valid as against these defendants, and will be supported against all persons except purchasers and creditors. I go farther and say it would be good even against subsequent creditors, if made without any fraudulent intent; and so is the decision in the case of Reade v. Livingston, before referred to. The same proposition is amply supported by the Supreme Court of the United States in the case of Sexton against Wheaton, 8 Wheaton's R. 229. Chief Justice Marshall in giving the decision of the court, says, “that a review of all the decisions of Lord Hardwick will show his opinion to have been that a voluntary conveyance (even to a child) by a man not indebted, if a real and bona fide conveyance not made with a fraudulent intent, is good against subsequent creditors; and that the decisions made since the time of Lord Hardwick maintain the same principle.” This decision is sustained by Shaw v. Standish, 2 Vern. 326; Stillman v. Ashdown, 2 Atkins; Fitzer v. Fitzer and Stephens, do; Walker v. Burrows, 1 Atkins, 94; Townsend v. Windham, 2 Ves; Stephens v. Olive, 2 Brown's Ch. R. 90; Glaister v. Huver, 8 Ves. 199. In conclusion of these references, Judge Marshall says emphatically that a voluntary settlement in favor of a wife and children is not to be impeached by subsequent creditors on the ground of its being voluntary. But it is insisted that by the force and effect of the 31st section of the act respecting slaves, passed 1st October, 1804, the settlement of Col. McClelland is utterly void, and passes no estate to his wife. This section provides that no gift of a slave shall be sufficient to pass any estate, unless it be by will, proved and recorded, or by deed, proved by two witnesses, or acknowledged and recorded, & c. The 33d section provides that the act shall be construed to extend only to gifts of slaves, whereof the donors have remained in possession, and not gifts of such slaves as have at any time come into the possession of, and have remained with the donee, or some person claiming under such donee. This act was passed in 1804, and the two sections contain substantially the same principle as is enacted in relation to slaves, by the 3d section of the statute of frauds passed the 4th January, 1825. The two sections amount to this, that there may be a valid gift of a slave by will or deed, &c., without delivery of possession; but if it be by parol, possession must accompany the gift. If...