Selected
Court Cases 1843-1903...
Supreme Court of Mississippi.
ROGERS v. STATE.
May 18, 1903.
Appeal from Circuit Court, Neshoba County; G. Q. Hall, Judge.
H. H. Rogers was convicted of murder, and appeals. Reversed.
*320 S. A. Witherspoon, W. T. Houston, and L. M. Southworth, for
appellant.
Woods, Fewell & Fewell and J. N. Flowers, Asst. Atty. Gen., for the
State.
PRICE, J.
The grand jury of Neshoba county, March 8, 1902, indicted H. H.
Rogers *321 for the murder of Tom A. Byrd, and on December 23, 1902,
he was tried, convicted, and sentenced to life imprisonment; and the
case is here on appeal, with a record challenged by the defendant
with forty-four assignments of error. We will consider but one of
the numerous errors assigned, in so far as it relates to two charges
given for the state--Nos. 2 and 5.
Charge No. 2 is in the following language: "If the jury shall
believe from the evidence, beyond all reasonable doubt, that, in the
difficulty in which Byrd lost his life, that the defendant was the
aggressor and provoker of the difficulty, and that he prepared
himself for it by arming himself with a deadly weapon, to wit, a
pistol, and sought out the deceased and provoked the difficulty,
intending to use his pistol and overcome his adversary, if
necessary, and that he then shot and killed Byrd, he is guilty of
murder, and the jury should so find." This instruction charges the
jury, in substance, that if they believe that the defendant was the
aggressor and provoked the difficulty, and armed himself for it, and
sought out Byrd, intending to use the pistol and overcome Byrd, if
necessary, and that he then killed Byrd, he is guilty of murder.
This charge is erroneous, in that it denies the defendant the right
of self-defense. All the facts assumed or alleged in the instruction
may be true, and yet the killing may not have been in pursuance of
such former design, or that it may have been done in necessary
self-defense.
The fifth instruction given for the state is as follows: "If the
jury shall believe from the evidence, beyond all reasonable doubt,
that there was trouble or misunderstanding at the time of the
homicide between Byrd and Rogers, and that they agreed to face each
other about it, and that in pursuance of the purpose to meet and
face each other, each of them armed himself with a deadly weapon, to
wit, a pistol, and that they then met and faced each other, and that
Rogers in that meeting shot and killed Byrd, he is guilty of murder,
and the jury should so find." This instruction told the jury that
they should convict Rogers of murder if they believed there was
trouble or misunderstanding between Rogers and Byrd at the time of
the homicide, and that they agreed to face each other, and each
armed himself with a pistol, and that they did so face each other,
and Rogers killed Byrd at the meeting. The error in this instruction
is too manifest for argument or citation of authorities. There is no
evidence in the case on which to base such a charge. There is no
evidence that the parties had agreed to such a meeting. The
preliminary negotiations of the friends and relatives of the
unfortunate girl, and the part played in this effort to get matters
amicably adjusted, by Rogers, were all consistent with a lawful
purpose. Such a meeting as subsequently took place between Rogers
and Byrd, in which Byrd lost his life, falls far short of a
prearranged meeting for a duel. In the one case the meeting was to
adjust a misunderstanding, and remove, if possible, all stain from
the character of the girl. But in the other all efforts to peaceable
settlement are known to have passed, and the parties meet only to do
battle.
The state asked nine instructions, and, as is usual in such cases,
falls an easy victim to too many instructions. "The old paths are
the best paths." As said by this court in the Patterson Case, 23
South. 647, by Judge Whitfield: "Persons at their country's bar are
not to be charged into the penitentiary by a court as matter of law,
but to be put there by verdicts of juries, finding their guilt as a
fact." A circuit judge can hardly keep a nisi prius trial free of
error where counsel, unconsciously swayed by their interest in the
case, demand so much at his hands, and at a time when both time and
opportunity preclude an examination of the authorities. Prine v.
State, 73 Miss. 842, 19 South. 711; Patterson v. State, 75 Miss.
675, 23 South. 647.
For the errors assigned, the case is reversed and remanded.
82 Miss. 479, 34 So. 320
End of case ------------
Supreme Court of Mississippi.
BARRIER v. KELLY et al.
March 24, 1903.
Appeal from Chancery Court, Yazoo County; H. C. Conn, Chancellor.
Suit by B. J. Barrier, Jr., against I. M. Kelly and another. From a
decree of dismissal on sustaining a demurrer to the bill, plaintiff
appeals. Affirmed.
Exhibit C.
"This indenture made and entered into this 4th day of June, 1890,
between Mary Ann Ray, of Madison county, Mississippi, of the first
part, and I. M. Kelly, of Yazoo county, Miss., of the second part,
witnesseth: That the party of the first part in consideration of the
love and affection which she bears to her beloved son, Jackson
Harvell Ray, now a minor, and for other and divers good and lawful
considerations thereunto moving the said party of the first part,
not herein expressed, she hereby gives, grants, bargains, sells and
conveys to the party of the second part the following real estate,
to wit: An undivided half interest in the east half of the southwest
quarter, section seven; the east half and southwest quarter, and
east half of northwest quarter, section eighteen, T. 10, R. 2 west,
situated in Yazoo county, Mississippi. Also the following tract or
parcel of land known and described as follows: North half of section
three, township 8, range 3 west; east half of lot 7, section 18,
township 8, range 4 east, situated in Madison county, Mississippi.
Also the following personal property: A one-half undivided interest
in all the cattle and household effects (except one bedroom set and
clock, conveyed in deed of this date to the party of the second part
for B. J. Barrier), and one horse and buggy being now owned by the
party of the first part, and on the place on which she now lives in
Madison county, Mississippi, now on my home in Madison county,
Mississippi. To have and to hold the same until the said I. M. Kelly
and his successors in the trust as hereafter set forth in
succession, and subject to the limitations, terms, conditions, uses,
and purposes hereinafter specified. But this conveyance is in trust
and on the following terms and conditions, and for the following
uses and purposes, and subject to the conditions, limitations,
powers, and provisions following: Said party of the second part is
to take charge of, control, manage, and direct the property herein
conveyed to him as he may see proper, in the interest of said minor,
until he shall become of age, when the said property herein
conveyed, and still remaining in the hands of said trustee, shall be
delivered to him; and said trustee is hereby directed to make a
deed, in fee simple, to said lands, to said Jackson Harvell Ray, who
shall thereafter hold the same absolutely. The said trustee is
hereby authorized to make any improvements on said property he may
see proper, rent out and control the same, and to invest any surplus
money he may have, belonging to said minor, in property, which shall
in all things follow the trust. Said trustee may resign his trust
and appoint a successor in writing, duly acknowledged and recorded,
or by last will and testament, and, should he die or resign without
appointing a successor, the chancellor of the district may, on the
application of said minor, or any one in his behalf, appoint a
successor, but said minor may have the right to designate such
successor, subject to the approval of the said trustee, and such
successor shall have all the rights herein conferred on said Kelly,
and be subject to all the requirements and conditions of this
instrument. Said trustee shall render to the court, which has
jurisdiction of the matters of guardianship an annual account,
showing the condition of his trusteeship, but will not be required
to show receipt for expenditures, but his account book shall be
sufficient evidence of all receipts and expenditures. Said trustee
may lease said land in Madison county to the father of said minor on
such terms as he might see proper, and make lower prices to him on
account of his relationship, if he sees proper to do so. Should said
minor die during his minority without a wife living, or issue of the
body, or descendants of the same, the property herein conveyed shall
go to his half-brother, B. J. Barrier, or his children, or
descendants of the same, should he have any. Said trustee is hereby
directed to make the necessary conveyances at the proper time to
vest the title according to the terms of this instrument. Said
trustee is to use sufficient of the proceeds of the said personal
property, which he may sell at public or private sale, on such terms
as he may think best, and of the rents and profits of said land, in
suitably maintaining, educating, and taking care of said minor; and
if there *976 should not be a sufficient sum of money realized by
said trustee out of the cash, notes, chooses in action, delivered to
him in accordance with an instrument of even date, herewith,
executed by me for the benefit of my son, B. J. Barrier, to pay what
said trustee is required to pay by said instrument, he may pay such
deficit out of the said proceeds of said personal property, or rents
and profits of said land. It is intended that said trustee shall pay
all taxes and other necessary expenditures on said land, and to have
such reasonable compensation for his services as the court to which
he accounts may allow him. He shall also be allowed such reasonable
attorney's fees and other expenses as he may have to incur in and
about his trusteeship.
Witness my signature this the day and year first above mentioned.
[Signed] Mary Ann Ray."
Exhibit D.
"This indenture made and entered into this the 4th day of June,
1890, between Mary Ann Ray, party of the first part, of Madison
county, Mississippi, and I. M. Kelly, party of the second part, of
Yazoo county, Mississippi, witnesseth: That the party of the first
part, for and in consideration of the love and affection which she
bears her beloved son B. J. Barrier, now a minor, and for other
divers good and lawful considerations thereunto moving the said
party of the first part, not herein expressed, she hereby gives,
grants, assigns, and delivers to said party of the second part all
of the cash money, notes, chooses in action or other evidence of
indebtedness now belonging to her; also the following personal
property: A one-half undivided interest in all the cattle on the
home place in Madison county, Mississippi; also the only bedroom set
being on the said place, and an undivided half interest in the
bedding and household effects of every kind; also one clock; all
being on said place in said county, and property being claimed by
party of the first part, and said place referred to being the one on
which the party of the first part now resides; and, for
consideration aforesaid, the party of the first part, gives, grants,
bargains, sells, and conveys to the party of the second part
whatever interests she may have in the lands of her former husband,
B. J. Barrier, Sr., situated in Yazoo, Madison, and Neshoba
counties, in the state of Mississippi, owned by B. J. Barrier, Sr.,
at his death. To have and to hold the same unto the said party of
the second part and his successors in the trust as hereinafter set
forth in succession, and subject to the terms, conditions, uses, and
purposes hereinafter specified. But this conveyance is in trust, and
on the following terms and conditions, and for the following
purposes, and subject to the limitations, powers, and provisions
following: The said trustee shall, out of any money, or collections
from any notes, chooses in action or other evidence of indebtedness,
as heretofore mentioned, pay all of the family expenses of or other
demands made on him by the party of the first part, or such
expenditures as he may think necessary, whether required by the
party of the first part, during her life; hereby giving him full and
discretionary power during the life of the party of the first part,
except so far as she may direct; she reserving the right to direct
any expenditure of such property, while she lives, that she may see
proper. At the death of the party of the first part, said party of
the second part is hereby directed to pay all debts that she may
owe, including burial expenses, without probation and registry, as
speedily as he can, out of said money, notes, etc., then erect such
monument as he may see proper over the grave of the party of the
first part and her deceased children, and pay expenses of removing
the remains of the latter to the graveyard at Concord Church, in
Yazoo county, Mississippi, where the party of the first part directs
the said party of the second part to bury her remains. He is next to
pay over the sum of one hundred dollars to Miss Eva Barrier, niece
of the party of the first part, in consideration for the kindness
she has shown and the services she has rendered to the party of the
first part. He shall next pay to her husband, J. H. Ray, the sum of
___ dollars; all of which sum, etc., shall be paid out of said
money, notes, etc.; and should there be any balance left, the said
trustee is to use the same for the benefit of said B. J. Barrier, as
he may require. The party of the first part hereby conferring on the
said trustee full power and discretion. The said trustee may sell or
dispose of said other personal property as he may think best, either
by private or public or public sale, and on such terms as he may see
proper, or retain such portion thereof for the use of the said minor
as in his judgment the interest of the said minor may require. Said
trustee is also authorized to use any of the said funds for the
education, support, and maintenance of said minor, or may lend out
or invest any surplus money he may have for the benefit of said
minor. And he shall report to the proper court, in his guardianship
of said minor, should he act as such, under the last will and
testament of said party of the first part, appointing, him, or he
may report as trustee and separate from any matters of guardianship,
his acts and doings hereunder, but his books of account shall be
deemed sufficient evidence of his receipts and disbursements in his
accounting hereunder, and he shall be allowed a reasonable
compensation for his services in this trust and all reasonable
attorney's fees and other necessary expenses which he may incur.
When said minor arrives at the age of twenty-one, then said trustee
shall deliver to him whatever of the estate herein conveyed to him
which he has on hand undisposed of, or convey to him any real estate
he may have purchased *977 for him, if not already conveyed to him,
or the interest in the lands aforesaid of his father. The party of
the first part has not conveyed to said trustee for the benefit of
said minor any real estate except whatever interest she may have in
his father's lands, because said minor has inherited from his father
and his deceased brothers sufficient real estate to make him own
about an equal amount in value to that owned by party of the first
part, and this day conveyed by her to the said party of the second
part, as trustee for her son, J. Harvell Ray. Said trustee may, in
writing, duly signed and executed and recorded, resign his
trusteeship hereunder, and appoint a successor, or may appoint one
by his last will and testament; and such successor shall have all
the rights, powers, and privileges herein given the party of the
second part. Witness my signature this day and year first above
mentioned, after the interlineation on the third page, 'or the
interest in the lands aforesaid of his father,' and 'except whatever
interest she may have in his father's lands.'
[Signed] Mary Ann Ray."
C. H. Williams and W. W. Lockard, for appellant.
Barnett & Perrin, for appellees.
WHITFIELD, C. J.
At the time of the death of Mrs. Ray, B. J. Barrier, Jr., became the
legal owner of the entire Taylor tract of land. His mother had first
been married to Mr. Barrier. The only issue surviving from this
marriage was B. J. Barrier, Jr., the appellant. After the death of
Mr. Barrier, the widow intermarried with Mr. Ray, and by him had one
son, the appellee. The appellant and appellee were therefore
half-brother. Mr. Barrier and Mr. Ray had bought, each, an undivided
half interest in the Taylor tract of land. These transactions
occurred before the Code of 1880 abolished dower. Mrs. Barrier, upon
her husband's death, was entitled to dower in that half of the
Taylor land bought by her husband Barrier, which dower was never
assigned. Upon her death, the dower interest expiring, B. J.
Barrier, Jr., became sole owner of that undivided half interest.
After the marriage of the widow Barrier to Mr. Ray, and before the
birth of their son, the appellee, Mr. Ray conveyed his undivided
half interest to Mrs. Ray, then his wife, for her life, remainder to
two Barrier sons then living, of whom B. J. Barrier, Jr., was one.
The other Barrier son died, and B. J. Barrier, Jr., inherited this
interest. Of course, upon the death of Mrs. Ray, her life estate in
this land expired, and appellant became sole owner of that half
interest, also, in the Taylor land. So that, as stated, on the death
of Mrs. Ray the appellant became the sole owner of the legal title
of the entire Taylor land. On the 4th of June, 1890, Mary Ann Ray
made two deeds, by one of which she conveyed to I. M. Kelly, as
trustee for J. H. Ray, Jr., an undivided half interest in certain
chattels and household effects, and a buggy and a horse, and
attempted to convey an undivided half interest in the said Taylor
land to I. M. Kelly, trustee, to be by him conveyed to J. H. Ray,
Jr., upon his arrival at majority. By the other deed she conveyed to
I. M. Kelly, trustee, for the benefit of B. J. Barrier, Jr., "all of
the cash money, notes, chooses in action and other evidences of
indebtedness" belonging to her at the date of the deed; also one
undivided half interest in the cattle on the home place; also the
only bedroom set of furniture, and also an undivided half interest
in the bedding and the household effects of every kind; also one
clock, and whatever interest she might have in the lands of her
husband B. J. Barrier, Sr., situated in Yazoo, Madison and Neshoba
counties, in this state, and owned by her husband B. J. Barrier,
Sr., at his death. She, however, reserved the right during her life
to make any expenditure out of the notes, cash, etc., she might see
proper; and she further charged the cash, notes, etc., with the
family expenses, her debts, burial expenses, the cost of erecting a
monument over herself, and of removing the remains of her deceased
children to the graveyard at Concord Church, and with the payment of
a legacy of $100 to Miss Eva Barrier, her niece; and the balance, if
any, was to be used by the said trustee for the benefit of B. J.
Barrier, Jr., as he might require. In this last deed the grantor
says: "The party of the first part [the mother] has not conveyed to
said trustee for the benefit of said B. J. Barrier, Jr., any real
estate, except whatever interest she might have in his father's
lands, because said minor has inherited from his father and his
deceased brothers sufficient real estate to make him own about an
equal amount, in value, to that owned by the party of the first
part, and this day conveyed by her to said party of the second part
[Kelly] as trustee for her son J. Harvell Ray." These deeds were
made on the same day, mutually referred to each other, not for
description of the property, merely, and are plainly parts of one
transaction, and to be construed as one instrument. The mother,
having executed these deeds on the 4th of June, 1890, died June 10,
1890.
We think it perfectly clear that Mrs. Ray believed herself to be
owner of the undivided half interest in the Taylor land which she
attempted to convey to her son J. H. Ray, Jr., and in which her
husband had conveyed to her a life interest only; and, second, that
she believed her Barrier son, the appellant, owned the other
undivided interest in that same land, which came through his father,
subject to her dower interest. She also thought she had some
interest in certain lands in Madison and Neshoba counties, which she
conveyed to her son B. J. Barrier, Jr.
In July, 1890, Kelly qualified as guardian to B. J. Barrier, Jr., in
Madison county. On *978 the 16th of November, 1897, B. J. Barrier,
Jr., became 21 years of age; and in March, 1898, Kelly made his
final report as trustee and guardian of Barrier, reporting a
settlement between him as trustee and guardian, according to the
terms of the deed of Mary Ann Ray to Kelly for Barrier's benefit,
and was discharged by the court. Some four years thereafter, to wit,
on December 30, 1901, appellant filed this bill against his late
guardian, Kelly, and his half-brother, the appellee, claiming that
he was owner in fee simple of the entire Taylor tract of land, one
undivided half interest in which his mother had attempted, as shown,
to convey to his half-brother, J. H. Ray, Jr. He prayed that this
deed should be canceled as a cloud upon his title; and, second, that
the court should decree him possession of, and ownership in fee
simple of, the entire Taylor tract of land; third, that Kelly,
trustee, should be required to account and pay over to him the other
half of the rents and profits from said land, which he had collected
since and including the year 1890, together with the interest at
legal rate thereon; and, fourth, that in case Kelly had paid these
rents to J. H. Ray, Jr., he, the said Ray, should be required to
account and pay over same to him. The appellee at the May term,
1902, demurred to this bill upon the ground that it showed no cause
of action, and that the appellant did not offer to do equity. This
demurrer was sustained by the court, and 60 days allowed complainant
in which to amend his bill, or file an amended bill in the case. The
complainant declined to amend his bill in the 60 days allowed him,
whereupon the court below dismissed the bill, and from that order
this appeal is prosecuted.
It will be observed that the bill was dismissed under the principle
of equitable election; the court holding that the appellant had made
his election in accordance with the instrument, and not against it,
and that he could not now repudiate that election. It will be
specially noted that in this case it is clear, first, that the
mother believed herself to be the owner of the land she attempted to
convey to the appellee, and hence could not have intended to convey
that land as being the appellant's property; and, second, that
nevertheless she did in fact attempt to convey what was not hers,
but plaintiff's property. It is clear, therefore, on the face of the
instrument, that she did convey, or attempted to convey, an
undivided half interest which was not her property, but wholly the
property of appellant, and by the same instrument did convey to him,
first, the surplus left from the profits of cash, notes, etc.;
second, certain specific household effects; third, an undivided half
interest in the cattle on the place; and, fourth, whatever interest
she had in certain lands in the three counties named.
One of the fundamental differences between the doctrine of equitable
election, as we administer it, and as it was administered under the
Roman civil law, from which it was borrowed, is that with us the
doctrine of equitable election applies, whether the donor was or was
not aware that he was dealing with property not his own. 1 Pom. Eq.
Jur. § 463; 1 White & Tudor's Leading Cases in Eq. p. 546; note to
Streatfield v. Streatfield; and the Am. & Eng. Ency. of Law (2d Ed.)
vol. 2, p. 68 (2). Another difference between the two systems is
that under the civil law the doctrine of equitable election was
confined to wills. See Mr. Swanston's notes to Dillon v. Parker, 1
Swanston, 359 and note, above referred to, in 1 White & Tudor's
Leading Cases in Eq., vol. 1, pt. 1, pp. 513-541. With us the
doctrine applies to deeds, wills, and all other instruments
whatsoever. One of the differences between the application of the
principle to a will and to a deed is that "in the case of deeds,
such as settlements, a person may be compelled to elect, although
there is not a clear intention on the part of the settlor to dispose
of property which is not his own; and this on the ground that a
person cannot accept and reject the same instrument." See Am. & Eng.
Ency. of Law (2d Ed.) vol. 2, p. 69 (5), and note 2. Lord Redesdale
said of this in Birmingham v. Kirwan, 2 Schoales & L. 444, cited in
said note, that this difference arose "because deeds are generally
matter of contract, and the contract is not to be interpreted
otherwise than as the consideration, which is expressed, requires."
We note this distinction, though it is immaterial in this case,
since it is perfectly manifest here that Mrs. Ray did intend to
convey the property she attempted to convey to Kelly for her son
Ray. There is no doubt about her clear intention so to convey, and
no doubt that that clear intention appears on the face of the
instrument; and just as little doubt that she meant to convey it as
her own, the fact being that it was complainant's property. The
doctrine of equitable election itself is, in our judgment, not
founded on intention, as held by so many cases, but is, as stated by
Mr. Pomeroy, "a positive rule of law, covering the devolution and
transmission of property by instruments of donation, and is invoked
wholly irrespective of the intention of the donor, although in the
vast majority of cases it undoubtedly does carry into effect the
donor's real purpose and desire." The doctrine rests, as we think,
upon the equitable principle that he who seeks equity must do
equity. We approve and adopt the statement of the doctrine by the
United States Supreme Court in Peters v. Bain, 133 U. S. 395, 10
Sup. Ct. 354, 33 L. Ed. 696, as follows. "The doctrine of election
rests upon the principle that he who seeks equity must do it, and
means, as the term is ordinarily used, that, where two inconsistent
or alternative rights or claims are presented to the choice of a
party by a person who manifests the clear intention that *979 he
should not enjoy both, then he must accept or reject one or the
other, and so, in other words, that one cannot take a benefit under
an instrument, and then repudiate it." In Cooper v. Cooper, L. R. 7
H. L. 67, Lord Chancellor Cairns, in explaining that the doctrine is
applied without reference to whether the donor knew that the
property of which he attempted to dispose belonged to another, said:
"The rule *** does not proceed either upon an expressed intention,
or upon a conjecture of a presumed intention, but it proceeds on a
rule of equity, founded upon the highest principles of equity, and
as to which the court does not occupy itself in finding out whether
the rule was present or was not present to the mind of the party
making the will." Mr. Pomeroy makes the matter exceedingly clear in
section 464: "A disposition calling for an application of the
doctrine of election may be made under the two following different
states of circumstances: Either the donor may know that the property
which he assumes to deal with is not his own, but belongs to
another, and notwithstanding such knowledge he may assume to give it
away, or he may give it away, not knowing that it belongs to
another, but erroneously and in good faith supposing that it is his
own. In the first of these two cases the presumption of an intention
on the part of the donor to annex a condition to the gift calling
for an election by the beneficiary plainly agrees with the actual
fact. At all events, it violates no probabilities. When a testator
devises an estate belonging to A. to some third person, and at the
same time bestows a portion of his own property upon A., he
undoubtedly must rely upon the benefits thus conferred upon. A., as
an inducement to a ratification by A. of the whole disposition. To
give A. the property which the testator was able to dispose of, and
at the same time to allow him to claim his own estate, which had
been devised to the third person, by his own paramount title, would
be to frustrate the evident intention of the testator. In the second
case, where the testator or other donor erroneously supposes that
the property which he undertakes to give away is in fact his own,
the doctrine of election applies with the same force and to the same
extent as in the former. Here it is, in the nature of things, simply
impossible that the donor could actually have had the intention
which the theory imputes to him, since he really believes himself to
have a disposing power over the property, or to be dealing with
property which is his own."
This case falls squarely within the second category stated by Mr.
Pomeroy, and it is simply impossible that the grantor, Mrs. Ray,
could have had the intention imputed to her by the theory, since she
believed herself to be disposing of her own property. We prefer,
therefore, the broader view of the Supreme Court of the United
States, of Mr. Pomeroy, and of Lord Chancellor Cairns, that the
rational basis of the doctrine is not to be found in the supposed
intention of the donor, but in the equitable principle that he who
seeks equity must do equity. We think this doctrine applies in full
force to this case. Appellant has made his election. He has been
receiving since 1890 whatever surplus has been yielded from the
cash, notes, etc. He has retained the specific personal gifts, and
for four years after his arrival at age, and after a full settlement
with his guardian has been made, has made no objection; all the
while knowing, as is clear from the pleadings, that his half-brother
was in reception of the rents and profits of the lands attempted to
be conveyed to him by his mother. Equity will not permit him now to
rip up the whole transaction, alter the entire situation, and
repudiate his election once definitely made. It is true that the
equitable doctrine of election is administered upon the principle of
compensation, and not of forfeiture, though, as said by Gibson, C.
J., in Lewis v. Lewis, 1 Harris, 79, 53 Am. Dec. 443, there may be
some few cases in which the principle of forfeiture alone can be
applied. In Am. & Eng. Ency. of Law (2d Ed.) vol. 2, p. 115 (3), the
rule is thus expressed: "According to the great weight of authority,
as now conclusively established, the refractory donee does not, in
such event, forfeit the benefit or estate conferred upon him, but is
bound only to make compensation out of it to the disappointed donee
to the extent of the value of the property of such refractory donee
which the donor has attempted to bestow upon such disappointed donee.
In such case a court of equity treats the refractory donee as a
trustee, and will sequester the benefit intended for him, in order
to secure compensation to the disappointed donee. But the excess
does not go to the personal representative of the testator, as if
undisposed of, but is to be given to the refractory donee; the
purpose being satisfied, for which alone the court controlled the
legal right. See, also, 1 Pom. Eq. Jur. § 468, and note 1 on page
636, and 1 White & Tudor's Leading Cases in Eq., note, supra, vol.
1, pt. 1, p. 543. And it follows from this principle of compensation
that, since appellant in this case had his election to claim against
the instrument and retain his own property, he might, in case the
surplus arising from the cash, notes, etc., and proceeds of other
personal property given him, had exceeded in value his property
conveyed to his brother, have retained, in addition to his own
property, the difference between the value of that property and such
surplus; and it is earnestly urged that the bill does not show
anything but the mere settlement between him and his guardian, or
that he had received a dollar there from, and that the bill further
does not show that there was any surplus left from said cash, notes,
etc. But the perfect reply to this is that all this lay peculiarly
within the knowledge of complainant, and, under *980 the rule that
the pleadings must be taken must strongly against the pleader, it
must be presumed that if the fact had been that there was no such
surplus from such cash, notes, etc., he would certainly have averred
it. The bill avers the rents of the entire Taylor tract of land to
be only $300, and it may be that appellant has derived from cash,
notes, etc., and other personal property, more, in value, than the
undivided half interest in said land attempted to be conveyed by his
mother to appellee was worth. At all events, it was the duty of
complainant to fully and particularly disclose the truth as to
this--most especially so when he comes into a court of conscience,
pressing his legal rights to their utmost limit, without offering to
return anything he may have received. It is true, he was an infant
up to his arrival at age in November, 1897. But he waited, under the
peculiar circumstances we have set out, four years thereafter, to
file this bill. We are clearly of the opinion that the learned court
below was entirely right in applying to him the principle of
equitable election.
Not only did the court below give him 60 days in which to amend this
bill, but said time was given, if he chose so to use it, in which to
file an amended bill; and the inference from his failure to avail
himself of leave to do either is irresistible that he had stated his
case as strongly as it was possible to state it, and that, had he
made the full disclosure equity required at his hands in the
situation, it would appear that he had elected to keep what his
mother gave him, because it was worth more than the land belonging
to him, which he had conveyed to Kelly for his brother's benefit.
Affirmed.
62 L.R.A. 421, 82 Miss. 233, 33 So. 974
End of case ------------
Supreme Court of Mississippi.
GAMBLIN v. STATE.
March 2, 1903.
Appeal from circuit court, Neshoba county; G. Q. Hall, Judge.
Frank Gamblin was convicted of manslaughter, and appeals. Reversed.
Wm. Williams, Atty. Gen., for the State.
TERRAL, J.
Upon the trial of Gamblin in the circuit court of Neshoba county
what purported to be evidence of Roland Edwards was offered by the
state to be laid before the jury. This purported evidence consisted
of 12 pages of written matter, uncertified to by any officer. Before
reading it to the jury, reason, not to say law, seems to have called
for some explanation. Therefore the committing magistrate, J. C.
Harrison, being sworn, stated that he had caused the testimony of
Roland Edwards to be taken down in writing, but failed to state that
he duly certified to it. He was asked whether he could give the
substance of the testimony of Roland Edwards, to which he replied
that he could not; that the witness was on the stand for one and a
half days; and that what he thought was material was taken down in
writing, upon 14 pages of writing, of which 12 of the pages, he
thought, were before them, but 2 of them were missing; that he could
not say what was in the missing pages. The 12 pages were read to the
jury as the evidence of Roland Edwards.
We think it was inadmissible. There is no pretense that the
examining magistrate, Harrison, certified to it; for, if so, the
certification was lost, and that destroyed the validity of the
instrument as a means of evidence. Harrison denied that he could
give the substance of the evidence of Roland Edwards, and no other
person pretended any ability of that sort. The 12 pages of evidence
purporting to be the evidence of Roland Edwards were not admissible
in evidence.
Other errors are alleged, but the evidence does not support the
contention in respect to them.
Reversed and remanded.
82 Miss. 73, 33 So. 724
End of case ------------
Supreme Court of Mississippi.
RUSH v. BROUSSARD et al.
Oct. 28, 1901.
Appeal from chancery court, Neshoba county; C. L. Anderson, Special
Chancellor.
"To be officially reported."
Suit by H. C. Rush against F. A. Broussard and others to enjoin the
sale of notes, and to cancel a trust deed. Decree for defendants,
and complainant appeals. Affirmed.
A contract of agency to sell a patented washing machine gave the
agent the privilege of selling one-half and whole agencies at a
stated price, and of appointing two agents to retail family rights
for the machine throughout the United States. On a bill to enjoin
the sale of notes given for the purchase of such agency, and praying
that a deed of trust securing the same be canceled, complainant
alleged that the machine was worthless, and that the contract was
void as against public policy, since it tended to induce fraud on
the rights of others. Held, that the contract was valid, and would
be enforced.
In October, 1898, F. A. Broussard, agent of one Crooker, the
patentee of a washing *636 machine, made a contract with H. C. Rush,
appellant, appointing him the agent to sell family rights to use
said machines, and to sell agencies for same; and Rush agreed to pay
$500 for said agency, and executed his two promissory notes for $250
each, and, to secure their payment, gave a deed of trust on some
land. The contract provided that, for and in consideration of the
sum of $500, "I hereby grant, bargain, and sell to said Rush the
privilege of selling the family rights of the said washer, and of
selling one-half and whole agencies of said letters patent, and
appointing two agents to retail said family rights for the said
washer in the United States. And the said Rush may sell and grant
the privilege of selling one-half agencies for the sum of $500.00,
or full agencies for the sum of $1,000.00, in cash or bankable notes
(no more, no less), to any and all persons that he may successfully
solicit, excepting in the county, or to persons living in the
county, where some other person who has bought said agency, or his
subagents, are selling said family rights, and not there unless he
shall first obtain the written consent to sell of the other agents."
This contract further provided that Rush was to instruct the parties
to whom he sold family rights how to use them, and that neither Rush
nor his agents were to sell said family rights for more nor less
than $5. It further provided that neither Rush nor his agents would
manufacture the machines, and that Crooker would furnish same for $1
for each machine. One machine was to be given to each purchaser of
family rights, and Rush was to receive all profits derived from the
sale of the family rights. The bill alleges that Broussard showed
the machine to complainant, and explained it to him, and that he
declined to purchase the agency, and Broussard then determined to
defraud complainant, and to that end he made daily trips into the
surrounding country, and returned each day and reported to
complainant the number of his sales, aggregating from $10 to $30 per
day, and stated that he had sold to the best people in the
community, but that these representations were false; that the
defendant had sold no machines at all, but had only deposited the
machines with people for trial. The bill further charges that
defendants procured one Graham, who lived in a neighboring
community, and who had complainant's confidence, to spend a night
with complainant for the purpose of inducing him to purchase said
agency, and that he made false representations as to the merits of
the machine and as to what could be made out of the sales, and that,
on account of the misrepresentations of Graham and Broussard,
complainant purchased the agency and executed the notes and trust
deed. It further charges that the washing machine was worthless and
a "humbug," and that for that reason he never attempted to impose
them on the people. The bill charges that for that reason the notes
were without consideration and void, and that not only he, but that
the country at large, had been defrauded and swindled by the
deception, misrepresentations, fraud, and rascality of the
defendants. There were some other charges of fraud. The prayer of
the bill was that defendants be enjoined from selling the notes and
from executing the trust deed, and that trust deed be canceled as a
cloud to complainant's title to the land. Defendants answered,
denying all the material allegations of the bill. There was
considerable testimony taken by both parties, and the cause was
heard on the bill, answer, and proofs. It is contended by appellant
that the contract is illegal and void as against public policy,
because that portion of the contract relating to the sale of
agencies has a direct tendency to induce fraud and malpractice on
the rights of others, and, as that portion of the contract is
incapable of being separated from the remainder, the whole contract
is void.
Amis & Dunn, for appellant.
S. A. Witherspoon, for appellees.
CALHOON, J.
We concur with the chancellor in his conclusion on the facts, and in
sustaining the validity of the instrument granting Rush the
privilege of selling family rights and agencies of the washing
machine. This instrument violates no public policy, and Mr. Rush
went into the contract with his eyes wide open, and should pay his
notes.
Affirmed.
30 So. 635
End of case ------------
Supreme Court of Mississippi.
GAMBLIN
v.
STATE.
March 4, 1901.
Appeal from circuit court, Neshoba county; G. Q. Hall, Judge.
Frank Gamblin was convicted of murder, and he appeals. Reversed.
Two persons were engaged in mutual combat, and both drew their
pistols. Deceased got his out first, snapped it at accused, and
struck him on the head with it. Deceased started to run, and accused
followed him up, shooting him twice while running; the last shot
taking effect. Held, that a charge was erroneous which failed to
submit as a question for the jury whether the killing was done on
malice, or on heat of passion engendered by a mutual combat wherein
blows were passed on each side.
A charge that if the jury believed, beyond a reasonable doubt, that
accused maliciously intended to kill deceased at the instant he
fired the fatal shot, he was guilty of murder, should be qualified
by the condition that the killing was not done by accused in his
necessary self-defense; the evidence showing that the parties had
engaged in a mutual combat, though deceased was running from accused
at the time of the fatal shot.
The homicide occurred at a public gathering or picnic at a place
known as "Gamblin Springs," in the county of Neshoba, and there were
many eyewitnesses to the tragedy. The undisputed facts, as they
appear from the record, are: That a difficulty was first started
between Hugh Gamblin, a brother of defendant, and Isaac Tolbert.
That Hugh Gamblin approached Tolbert on the picnic grounds, and
ordered him to leave. While Tolbert and Hugh Gamblin were
quarreling, Frank Gamblin appeared on the scene, and commanded
Tolbert to leave the place, which Tolbert refused to do. A fight
then took place between Frank Gamblin and Tolbert. After fighting a
short time, both of the men drew their pistols; Tolbert getting his
out first, and snapping it at Gamblin and striking him on the head
with it. Some of the witnesses testify that Tolbert's pistol fired
one shot, while others testify that there were only three shots
fired, and all of them were fired by Gamblin. After Gamblin shot the
first time, Tolbert ran. Gamblin followed him up and shot him twice
while running, the third shot taking effect. There was evidence to
show that Tolbert's pistol was empty, and that he begged Gamblin not
to shoot, saying that his pistol was not loaded. The evidence shows
that defendant and deceased had had a falling out a short time
before *765 the homicide, and that defendant had made threats on
several occasions that he would kill deceased; that threats were
made on the morning of the killing by Gamblin that if Tolbert came
to the picnic he would have to leave, or one of them would be
killed. The first instruction for the state is as follows: "The
court charges the jury, for the state, that malice may be either
expressed or implied, and that, if the malicious intent to kill is
executed the instant it springs into mind, the offense is as truly
murder as if such malicious intent had dwelt in the mind, as the
deliberate purpose of the defendant, prior to the difficulty, to
take the life of the deceased; and if the jury believe from the
evidence, beyond a reasonable doubt, that Gamblin, the defendant,
maliciously intended to kill Tolbert at the instant he fired the
fatal shot, he is guilty as charged in the indictment, and the jury
should so find." On the trial, defendant was convicted, and
sentenced to imprisonment for life. A motion for a new trial was
made, and overruled by the court, and defendant appeals.
Hugston & Jones and G. B. Huddleston, for appellant.
Monroe McClurg, Atty. Gen., for the State.
TERRAL, J.
The seventh instruction in behalf of the state is, in our opinion,
erroneous, in not submitting as a question for the determination of
the jury whether the killing of the deceased by the defendant was
done upon malice, or upon heat of passion engendered by a mutual
combat wherein blows were passed upon each side. The instruction is
as follows: "(7) The court instructs the jury, for the state, if
they believe from the evidence, beyond every reasonable doubt, that
the defendant shot Tolbert, with the intent to kill him, when
Tolbert was running, and while the defendant, Gamblin, was not in
any real or apparent danger of death or great bodily harm at the
hands of Tolbert, and that said shot so fired at such time did in
fact kill Tolbert, then Gamblin, the defendant, is guilty as charged
in the indictment." The intent to kill is common to both murder and
manslaughter, and, in our judgment, this charge requires the jury to
impute malice to the defendant if he shot Tolbert when he was
running, and when he was in no immediate danger of great bodily
harm, although there was evidence from which the jury might have
concluded that the killing may have been done in the heat of passion
arising from a mutual combat in which blows had been passed upon
both sides. The question whether the killing was done upon
preconceived malice, or upon heat of passion upon a new provocation,
was for the solution of the jury; and, in so far as the instruction
shuts them from the consideration of this question, it is upon the
weight of the evidence. We are also of the opinion that the first
instruction should have been qualified by the condition that the
killing was not done by the defendant in his necessary self-defense.
Reversed and remanded.
29 So. 764
End of case ------------
Supreme Court of Mississippi.
DEES
v.
STATE.
Nov. 12, 1900.
Appeal from circuit court, Neshoba county; G. B. Huddleston, Judge.
"To be officially reported."
Wess Dees was convicted of murder, and appeals. Affirmed.
West Headnotes
*849 E. V. Hughston, for appellant.
Monroe McClurg, Atty. Gen., for the State.
TERRAL, J.
Wess Dees was convicted at a special term of the circuit court of
Neshoba county of the murder of Elijah Fulton, and was sentenced to
the state penitentiary for life. A regular term of the circuit court
of Neshoba county is limited by law to six days. The circuit judge
ordered a special term of said court to be convened on the 4th
Monday of November, 1899, without specifying any period for its
conclusion. The court in fact continued into the second week after
it convened. Upon a day of the first week of said court the
defendant was indicted, and upon a day of the second week of said
term of court the defendant was put upon his trial, and was
convicted and sentenced as aforesaid; and, because the trial of the
defendant commenced in the second week, it is insisted that his
trial and conviction are coram non judice and void. It is insisted
that the circuit judge could not, by any authority vested in him,
continue a special term of court longer than six days, the limit of
a regular term of court, or, if he could do so, it must be done by
him in the order calling the special term, and that otherwise the
limitation of six days attaches.
Our Code (section 912) provides that a circuit judge may call a
special term of court, when the business of the court may require;
and section 630 provides that the court at a special term shall have
full jurisdiction to hear and determine all civil and criminal
business in the same manner as at a regular term; and we are of the
opinion that the special term of the court in this case was properly
continued during the second week. This case of Dees, at least, was
there undisposed of, and required a trial; and for this matter, as
well as for other matters, this special term was called, to
continue, of necessity, so long as the business of the court should
require. A regular term of court for every county is limited to a
fixed number of days; but the number of days of a special term is
not fixed by the statute, because it is to close up unfinished
business, and the judge does not fix it, because the power to
adjourn it is in his own hands, and, if predetermined, he might not
meet the requirements of the business of the court. A special term
of court is not limited by law to any fixed number of days, and,
when called, the judge may keep it open so long as it may be
necessary for the public service. Hutchinson's Code, c. 53, art. 8,
provides that, when a special term of court shall have been ordered,
it shall continue until all the business pending shall be finished.
The express provision of this early Code is, we think, a necessary
and reasonable implication from our present statutes on the subject;
and this construction is strongly fortified by the principles of the
common law. In People v. Sullivan, 115 N. Y. 185, 21 N. E. 1039,
Sullivan was put upon his trial on the 12th of March, 1888, and at
the end of the day the court adjourned until 10 o'clock, March 13th.
On account of a snow blockade no court met on the 13th. On the 14th
of March the trial was resumed, and upon his conviction he
interposed an objection that the proceedings of the court were coram
non judice and void. Peckham, J., said: "Nothing but the most
rigorous rule of law should, under the circumstances, compel a court
to admit its loss of jurisdiction, and the consequent failure of all
proceedings taken before it. If, from the positive commands of any
statute, or the decision of some court which is binding upon us, we
are compelled to so decide, nothing more need be said. We do not
think there is such a statute or decision. The term of the court
having been regularly opened, its continued existence thereafter
would by the common law be regarded as but one day. All the business
done at a term of court was by that law referred to its
commencement, unless the law directed certain acts to be done on
certain days. There is an inherent power in a court to adjourn its
proceedings from day to day as long as it is necessary to finish the
business legitimately brought before it, unless by the terms of some
statute its existence is sooner brought to a close." In Townshend v.
Chew, 31 Md. 247, it is said "that a term of the circuit court
continued until the call of the next succeeding term, unless it
should affirmatively appear that before that time it had, by order
of the judge, been adjourned sine die"; and this decision is
approved in Freem. Judgm. § 90. In Railway Co. v. Hand, 7 Kan. 238,
the court was adjourned on Saturday until the next Monday, but it
did not in fact meet until the ensuing Wednesday, and it was argued
that it had lost jurisdiction. It was, however, held that, the court
having once opened, it so continued until the term expires, or an
adjournment sine die is made. In State v. McBain, 102 Wis. 431, 78
N. W. 602, it is said: "According *850 to modern policy and methods,
a term of court, having been duly commenced, continues until the
court itself, by an affirmative judicial act, terminates it, or
until the next term." In Re Dossett, 2 Okl. 369, 37 Pac. 1066, it is
declared: "We are unable to say that after a session of court is
once regularly commenced, on the day fixed by law, it can expire in
any manner, except by adjournment sine die or by operation of law.
This rule is too well settled to admit of controversy." Hume v.
Bowie, 148 U. S. 245, 13 Sup. Ct. 582, 37 L. Ed. 438, may be cited
as maintaining the principle here announced; and we conclude that
the learned circuit judge rightly continued the court until the
charge made against the defendant was tried and ended.
2. We think the corpus delicti was fully proven, and that the
verdict is amply supported by the evidence.
3. We find no error in the instructions, as the instructions given
cover the points made in those that were refused, wherefore the
judgment of the circuit court is affirmed.
78 Miss. 250, 28 So. 849
End of case ------------
Supreme Court of Mississippi.
GENTRY
v.
GAMBLIN.
Oct. 29, 1900.
Appeal from chancery court, Neshoba county; A. M. Byrd, Chancellor.
"To be officially reported."
Suit by W. J. Gentry against E. D. Gamblin to remove a cloud from
real estate, and for the possession thereof. From a decree
sustaining a demurrer to the bill, plaintiff appeals. Reversed.
*809 Brame & Brame, for appellant.
CALHOON, J.
Gentry's bill in chancery shows that on June 7, 1885, Gamblin
secured a debt he owed B. F. Quarles & Co. by trust deed conveying
land to J. A. Jones, trustee. The debt not being paid at maturity,
the land was sold and conveyed by a substituted trustee to B. F.
Quarles & Co., the beneficiaries. Seeing that he had lost his land,
he applied to them to sell it back to him, and they verbally agreed
to reconvey if he would pay his *810 debt. Failing to get the money
from others to whom he applied, he finally prevailed on R. L. Lee &
Bros., a firm, to pay it if he would cause B. F. Quarles & Co. to
convey to them, which he did, upon the oral agreement that he (Gamblin)
should occupy the land and pay them the amount out of the crop, upon
which payment Lee & Bros. were to reconvey to him, and if he failed
to pay out of the first crop he would surrender the land to them.
This conveyance from Quarles & Co. to Lee & Bros. was procured
altogether by Gamblin. Lee & Bros., acting altogether through
sympathy, took no other part in this negotiation than to receive the
instrument from him, and pay Gamblin's debt. The bill charges that
this conveyance is dated the ___ day of February, 1898, but the
transcript of it in the record as an exhibit shows the date to be
February 11, 1888. The bill proceeds to charge that Gamblin paid
nothing out of the crop of 1888, and got another year from Lee &
Bros. on a plea of poverty, and this process was continued annually
until they conveyed to Gentry, the appellant, and complainant in the
bill, by a conveyance, exhibited with the bill, without date, but
acknowledged January 23, 1892. Gentry demanded possession, but
Gamblin declined to give it up or pay the debt, claiming to be the
owner because of some defect in the title from Quarles & Co. The
prayer is to cancel any claim of Gamblin, as a cloud on
complainant's title, and for writ of possession, or for subrogation
to the rights of Lee & Bros. to the amount they paid Quarles & Co.,
and general relief. This bill was filed May 9, 1898, and was
demurred to by Gamblin on divers grounds, and his demurrer was
improperly sustained. By Code, § 500, such a bill lies where
complainant has a perfect title, either legal or equitable. Here is
shown certainly a perfect equitable title, as against Gamblin. He is
estopped to deny that title passed by an instrument he obtained from
Quarles & Co. to Lee & Bros., and used as good to cause them to
expend money for him. This would be to ask a court of conscience to
sanctify an unconscionable fraud. The analysis of the whole
understanding between him and Lee & Bros. is that they should take
the title he furnished, and he might repurchase from them for the
sum they paid for the land to Quarles & Co. It is monstrous if he
may defeat them on the ground that he furnished them a defective
title, by which he induced them to part with their money. There is
no reason and no authority produced to sustain such a view. If he
paid, would he be heard to demand a warranty title? Clearly not.
Money v. Ricketts, 62 Miss. 209. Under the same circumstances, he is
equally estopped from setting up the statute of limitations of six
years or three years. The land was their property, subject only to
his right, by agreement, to repurchase it for a sum agreed on, and
he held under them; and nothing under the statute of limitations can
save him, short of ten years' open and notorious adverse possession
in repudiation of their claim.
The prayer for relief in the alternative--that, if the court should
hold the apparent conveyance in fee a mortgage to secure a debt, it
should then decree a lien to secure the money--is entirely proper.
Mr. Gamblin cannot in this case both hold the land and avoid the
debt. We simply hold that he cannot both keep the land and avoid the
debt. He must either yield possession or pay, if the facts maintain
the bill. There is nothing multifarious in the bill, and the decree
sustaining the demurrer is reversed, the demurrer sustained, and
appellee required to answer within 60 days.
79 Miss. 437, 28 So. 809
End of case ------------
Supreme Court of Mississippi.
BYRD
v.
McDONALD.
Oct. 29, 1900.
Appeal from chancery court, Neshoba county; John Davis, Special
Chancellor.
Suit by Edna J. McDonald against A. M. Byrd to redeem certain lands
from tax sale. From a judgment overruling defendant's demurrer to
the complaint, he appeals. Reversed.
Edna J. McDonald, who was complainant in the court below, filed her
bill in the chancery court of Neshoba county against A. M. Byrd, the
defendant below, to redeem certain lands described in her bill from
a tax sale, and to have defendant's claim to said lands canceled as
a cloud on her title. Complainant, in her bill, alleges that the
lands in controversy were purchased by her father, John D. McDonald,
at a tax sale on August 3, 1874; that her father died in 1876; that
complainant was the only heir, and succeeded by right of descent to
the lands; that at the time of her father's death she was a minor,
and that she has recently become of age; that during complainant's
minority, and since her father's death, the lands were again sold
for taxes; that said defendant now claims and holds said lands by,
under, or through some such deed or tax collector's conveyance; that
the records of deeds of Neshoba county do not show any such
conveyance. In her bill she calls upon defendant to discover in his
answer the source and chain of title to his claim, and offers to pay
defendant all taxes paid out by him on said lands, all damages
provided by statute, and reasonable value of all permanent
improvements put on said lands by defendant. To this bill defendant
demurred, setting up, among other grounds, that the bill showed on
its face that the said tax deed to John D. McDonald was to convey
land sold at a tax sale which did not occur on the first Monday of
March, or on the day to which such sale was continued, as required
by Code 1892, § 3813, and therefore the deed conveyed no title to
the said John D. McDonald. The demurrer was overruled, and defendant
appealed.
*847 Brame & Brame and G. E. Wilson, for appellant.
Amis & Dunn, for appellee.
WHITFIELD, C. J.
It is clear that the sale on August 3, 1874, was on a day not
authorized by law. The sale was, therefore, void. The decree is
reversed, the demurrer sustained on this ground alone, and the bill
dismissed.
28 So. 847
End of case ------------
Supreme Court of Mississippi.
STATE
v.
MOORE et al.
Dec. 19, 1898.
Appeal from circuit court, Neshoba county; G. B. Huddleston, Judge.
Demurrer to indictment against George Moore and another was
sustained, and the state appeals. Affirmed.
*308 Wiley N. Nash, Atty. Gen., for the State.
W. M. Lewis, for appellees.
TERRAL, J.
The defendants were indicted in that they "on the ___ day of
October, 1897, in Neshoba county aforesaid, in the public highway,
near the premises of William Cannon, and in the presence of Mrs. A.
T. Cannon, a female member of the family of the said William Cannon,
did unlawfully make use of the following profane language: That they
would 'kill the God damn chap,' meaning a minor child of the
aforesaid William Cannon, who was then and there present," against,
etc. The defendants demurred to the indictment. The court sustained
the demurrer, and the state appeals.
Section 1033, Ann. Code 1892, punishes abusive language when uttered
at "the dwelling house of another, or the yard or curtilage thereof,
or upon any public highway, or any other place near such premises,
and in the presence or hearing of the family," etc. The word
"premises" in the indictment does not necessarily, or even
ordinarily, mean a dwelling house, or the yard or curtilage thereof.
Webster says the word "premises," when referring to property, means
"a piece of real estate; a building with its adjuncts." Manifestly,
the indictment is bad.
24 So. 308
End of case ------------
Supreme Court of Mississippi.
BAUM v. McDONALD et al.
Oct. 14, 1892.
Appeal from circuit court, Neshoba county; A. G. MAYERS, Judge.
Action by Joseph Baum for the use, etc., against M. A. McDonald and
others. From a judgment rendered in favor of plaintiff, defendants
appeal. Reversed.
*680 L. B. Moody, for appellants.
Hudleston & King, for appellee.
CAMPBELL, C. J.
Upon the facts shown by the record before us it would be difficult,
if not impossible, to sustain a verdict for the complainants
rendered upon unexceptional instructions, or without any; and it
follows necessarily from this view of the case that it was erroneous
to instruct the jury to find for the claimants.
Reversed, and remanded for a new trial.
11 So. 680
End of case ------------
Supreme Court of Mississippi.
MILTON D. TURNER AND WIFE
v.
J. W. MCADORY.
October Term, 1880.
BREACH OF WARRANTY. Rights of warrantee. Judgment credited by order
of court. Jurisdiction.
If, after the breach of a warranty of title to land by the
establishment of an adverse title paramount to that warranted, the
warrantee purchases such paramount title, he has the right to
maintain an action against the warrantor for money paid to his use;
but a Circuit Court has no power to order a judgment obtained by the
warrantor against the warrantee for the purchase-money of the land
to be credited with the amount paid out by the warrantee for the
paramount title, the claim therefor not having been reduced to
judgment against the warrantor, and being unliquidated as to him.
When, after the breach of a warranty of title to land by the
establishment of an adverse title paramount to that warranted, the
warrantee purchased such paramount title, he had the right to
maintain an action against the warrantor for money paid; but a
circuit court had no power to order a judgment obtained by the
warrantor against the warrantee for the purchase money of the land
to be credited with the amount paid by the warrantee for the
paramount title-the claim therefor not having been reduced to
judgment against the warrantor, and being as to him unliquidated.
*1 ERROR to the Circuit Court of Neshoba County.
Hon. A. G. MAYERS, Judge.
In 1869, J. W. McAdory purchased a certain tract of land from Milton
D. Turner and wife, and paid therefor a part of the purchase-money
in cash, and gave his promissory note for the balance. Turner and
wife conveyed the land to McAdory by a warranty deed. Some time
thereafter, J. C. Wilson brought an action of ejectment against
McAdory to recover this land. Turner and wife were notified of the
action, and were admitted as defendants thereto. But in 1874 Wilson
obtained a judgment for the recovery of the land. Thereupon McAdory
bought in Wilson's paramount title, paying therefor $133.33 in cash
and giving his two promissory notes, due, respectively, on the 1st
of November, 1875 and 1876, for $133.33 each.
Turner and wife sued McAdory on his notes to them, and on the 12th
of March, 1877, recovered a judgment for $485.
Wilson also sued McAdory on the note given him, and on the 14th of
March, 1878, recovered a judgment thereon for $297.66.
In September, 1879, McAdory filed a petition in the Circuit Court of
Neshoba County, where all of said judgments were obtained, setting
forth the above-stated facts, and asking for a supersedeas to
suspend the collection of the judgment of Turner and wife until the
next term of the court, and that they be summoned to appear and show
cause why their judgment should not be satisfied on record to the
amount of principal and interest paid and to be paid by the
petitioner to Wilson for his paramount title. The petition also
alleged that Turner and wife are insolvent; that petitioner will be
compelled to pay their judgment before the next term of the court,
unless it be superseded; and that he has paid a part of the money
due on Wilson's judgment, and will be compelled to pay the balance
before the next term of the court.
The supersedeas was granted in vacation, and at the next term the
court sustained a motion by McAdory, based upon his petition, to
enter as a credit upon the Turner judgment the amount paid by
McAdory to Wilson and the balance still due on Wilson's judgment.
Turner and wife made no defence to McAdory's petition, and judgment
was rendered therein by default. To that judgment Turner and wife
sued out a writ of error.
L. Brame, for the plaintiffs in error.
1. The judgment recovered by Turner and wife against McAdory
adjudicated all the matters of difference between the parties
thereto. It settled everything that was or might have been
litigated. Gaines v. Kennedy, 53 Miss. 103.
McAdory's petition in the Circuit Court was nothing more than an
effort to go behind the judgment and assert a defence in reference
to a motion that was adjudicated. It is plain that he could have
pleaded a total failure of consideration as to the note as soon as
the judgment in ejectment was recovered by Wilson under the
paramount title.
*2 2. It is not alleged that Turner and wife authorized McAdory to
buy in the title of Wilson, nor that they consented to it. That
arrangement was made between McAdory and Wilson, and Turner and wife
had no privity or connection with it.
3. The petition showed that the petitioner was not entitled to any
relief. And "the failure of the defendant to make defence cannot
give to the plaintiff a right which, according to his own showing,
he was not entitled to exercise under the established principles of
law." Railroad Co. v. Sackett, 27 Miss. 739; Belew v. Jones, 56
Miss. 342.
4. The proceedings in the court below were unauthorized. There was
no direct payment of the judgment, but it was attempted, by an
independent suit, to establish an equitable claim to be applied as a
payment thereof. The court had no jurisdiction to order the judgment
to be cancelled.
L. Brame also argued the case orally.
R. G. & H. W. Rives, for the defendant in error.
McAdory was not entitled to sue Turner and wife in assumpsit until
he had completed the purchase of the paramount title and perfected
the protection of their covenant of warranty. Kirkpatrick v. Miller,
50 Miss. 522. He did not do this until long after they had obtained
judgment against him. He could not have maintained assumpsit for
that which he had only promised to pay, nor could he have maintained
such action for any small amount paid by him, there being still a
part due, for that did not secure the paramount title and protect
the covenant of warranty.
But, while Turner and wife are insolvent, and a judgment against
them would be worthless, they have a judgment against McAdory which
they are about to force him to pay. Surely, justice and fair-dealing
demand that their judgment against him for the purchase-money of the
land should be treated as satisfied to the extent of the sum which
he has been compelled to pay for the protection of their warranty,
and which he would lose, by reason of their insolvency, if left to
his suit in assumpsit against them. A court of law has equitable
jurisdiction in relation to its process and judgments, and may and
ought to take into consideration, as a court of equity, the
insolvency of a party as a ground for equitable interference.
Simpson v. Hunt, 14 Johns. 70; Officers of Court v. Bank of Port
Gibson, 4 Smed. & M. 431. See also Planters' Bank v. Spencer, 3 Smed.
& M. 313.
R. G. Rives made an oral argument also.
CAMPBELL, J., delivered the opinion of the court.
By his purchase of the outstanding paramount title, McAdory became
entitled to maintain an action against his warrantor of the title
for money paid to his use, but the Circuit Court did not have the
right to order the judgment in favor of the warrantor against
McAdory to be credited by the amount due to the latter from the
former. Courts of law have gone to the extent of ordering mutual
judgments between parties to be set one against the other, as an
incident to the administration of justice between litigants; but
there is no precedent for a court of law, in a system where the
administration of justice is divided between courts of chancery and
courts of law, to order a demand in favor of the defendant in a
judgment to be credited as a payment of the judgment. On this ground
we reverse the judgment, and dismiss the motion of McAdory, and
discharge the supersedeas of the judgment against him.
58 Miss. 27, 1880 WL 6882 (Miss.)
End of case ------------
Supreme Court of Mississippi.
J. W. MCADORY
v.
MILTON TURNER ET AL.
April Term, 1879.
1. PRACTICE. Time of pleading. Power of Circuit Court.
The Circuit Court has authority, before judgment rendered in a case,
to allow a defendant to plead out of time, where a reasonable excuse
is shown for the failure to plead sooner; and this authority is not
denied in Pool v. Hill, 44 Miss. 306.
2. SAME. Motion for time to plead. Bill of exceptions. Chancery
jurisdiction.
A defendant in assumpsit obtained leave to plead within ninety days.
He failed to plead within the time allowed, and his pleas filed on
the first day of the next term were stricken out, on motion of the
plaintiff. The defendant then moved for leave to refile his pleas,
and in support of the motion presented an affidavit of his attorney,
stating that the pleas contained a good defence, and great injustice
would be done if the defendant should not be permitted to plead; and
stating, as an excuse for the failure to plead in time, that it was
an invariable custom of many years with affiant and plaintiff's
attorney not to exact strict compliance with rules and orders as to
the time of pleading, and that all either had ever required of the
other was due notice of the nature of the defence, which notice
affiant had given to plaintiff's attorney in this case long before
the expiration of the ninety days, and that affiant had no
intimation that such custom would be violated in this instance. The
motion was overruled, and judgment rendered against the defendant,
who sought redress by a bill in chancery. Held, that the defendant
should have brought up his case on a bill of exceptions to the
action of the Circuit Court in overruling his motion, and upon the
showing here made this court would have granted leave to plead; but
that chancery has no jurisdiction of the matter.
*1 APPEAL from the Chancery Court of Winston County.
Hon. L. BRAME, Chancellor.
Turner sued McAdory in an action of assumpsit, in Neshoba County. At
the appearance term, McAdory's attorney obtained leave of the court
to plead within ninety days. The pleas were not filed within the
time allowed, but were filed on the first day of the next term of
the court. Upon motion of the plaintiff, by his attorney, the pleas
were stricken from the file. Immediately thereupon, the defendant
moved for leave to refile his pleas, and supported his motion by an
affidavit of his attorney, stating that the pleas contained a just
and legal defence to the action, and that great injustice would be
done the defendant if he was not permitted to file them. The
affidavit also stated, as the reason of the failure to plead within
the time allowed, that the plaintiff's attorney and the affiant, the
defendant's attorney, both resided in the town of Louisville, in
Winston County; that very soon after the order was granted allowing
ninety days in which to plead, and long before the expiration of
that time, the affiant informed the plaintiff's attorney of the
defence which would be made; that affiant and plaintiff's attorney
had been practising law in the same town for many years, and it was
the invariable custom with them not to require a strict observance
of the rules of law and practice as to the time of filing pleas, but
due notice of the defence intended to be made was all that either
required of the other, and affiant had no intimation that this
custom would be violated, until the motion to strike out the pleas
in this case; and that the notice of the defence given to
plaintiff's attorney by affiant in person was better than if he had
filed the pleas in the clerk's office, twenty-eight miles from where
both attorneys resided. The Circuit Court overruled the motion, and
entered a judgment against the defendant.
McAdory then filed a bill in chancery against Turner and the
officers of the court, narrating the proceedings in the Circuit
Court, stating his defence to the action of assumpsit, and praying
that the judgment be set aside and an opportunity afforded
complainant of having a new trial upon his rejected pleas, or that
the execution of the judgment be perpetually enjoined.
The defendant demurred to the bill. The demurrer was sustained, and
the complainant appealed.
Rives & Rives, for the appellant.
The action of the Circuit Court in overruling the motion for leave
to plead was in accordance with the requirements of the statute.
Code 1871, sect. 631; Pool v. Hill, 44 Miss. 306. At the time the
motion was made, we believed it to be within the legal discretion of
the court to sustain or overrule the motion, as might seem proper,
but upon further investigation we discovered our mistake.
Equity will enjoin a plaintiff from enjoying the benefits of an
unjust judgment, unconscientiously obtained, where the bill of
complaint shows that the defendant in the judgment had a good
defence to the action at law, and also presents a good excuse for
his failure to make such defence. Willard on Inj. (2d ed.) 174, 176,
191; Story's Eq. Jur. (5th ed.), sect. 899; Engel v. Scheuerman, 2
Am. Law Rep. 573; Smith v. Walker, 8 Smed. & M. 13.
J. P. Allen, for the appellees.
*2 Equity will not relieve against a judgment at law unless it be
shown that the judgment was obtained by mistake, accident,
misrepresentation, fraud, or deceit, and without laches or neglect
on the part of the defendant. 1 How. 108; 11 Smed. & M. 144; 13 Smed.
& M. 698; 14 Smed. & M. 158; 23 Miss. 406, 407; Story's Eq. Jur.,
sects. 894-896; 33 Miss. 171; 14 Smed. & M. 160; 52 Miss. 402. The
bill shows that the judgment was caused by the gross neglect of
complainant or his counsel. 5 How. 104.
The judgment of the Circuit Court cannot be revised in chancery. 1
Smed. & M. 238; 3 Smed. & M. 294, 439. The appellant should have
made his defence in the Circuit Court. 4 Smed. & M. 358; 7 Smed. &
M. 188, 607; 8 Smed. & M. 131, 139; 10 Smed. & M. 108, 282, 502,
563, 596. The action of that court in overruling the appellant's
motion was correct. Marshall v. Hamilton, 41 Miss. 229; Pool v.
Hill, 44 Miss. 306; Hunter v. Wilkison, 44 Miss. 728; 11 Smed. & M.
411.
Nugent & McWillie, on the same side.
CAMPBELL, J., delivered the opinion of the court.
The remedy of appellant was to tender a bill of exceptions to the
refusal of the Circuit Court to allow him to plead on the showing
made, and to bring the case to this court, which, on the facts
stated in the bill, would not hesitate to grant leave to plead to
the action.
It is a mistake to suppose that Pool v. Hill, 44 Miss. 306, denies
to the Circuit Court authority to allow a defendant to plead out of
time, where a reasonable excuse is made for not having pleaded
sooner, and when the court has control of the matter, as it has
before judgment.
The error of the Circuit Court, as shown by the bill, cannot be
corrected in chancery, and the demurrer to the bill was properly
sustained.
Decree affirmed.
56 Miss. 666, 1879 WL 6424 (Miss.)
End of case ------------
Supreme Court of Mississippi.
L. C. & J. ELSON
v.
B. J. BARRIER.
January Term, 1879.
1. DEED OF TRUST. Personal property. Sale out of county of record.
Notice.
Where a deed of trust on personal property is recorded in one
county, and the grantor removes the property into another county and
sells it, the rights of the beneficiary are protected by sect. 2305
of the Code of 1871; and, as therein provided, the buyer is
chargeable with full legal notice of the deed. and the rights which
it confers.
2. SAME. Assumpsit by grantee. Title and lien distinguished.
A deed of trust confers title to the property embraced in it; and,
after condition broken, the grantee can maintain assumpsit, or any
other action in respect to such property that an owner could
maintain on account of his property. But a party having merely a
lien can maintain no action in respect to the property affected by
his lien, which requires title for its maintenance. Westmoreland v.
Wooten, 51 Miss. 825, and Cloud v. The State, 53 Miss. 662,
explained.
*1 ERROR to the Circuit Court of Lauderdale County.
Hon. J. S. HAMM, Judge.
In April, 1876, J. C. Ward executed a deed of trust on his crop to
be grown that year, to R. Wilson, as trustee, to secure a debt of
$93 which he then owed B. J. Barrier, and $70 to be advanced in
supplies to him during the year by Barrier. The parties resided in
Neshoba County, the crop was to be produced there, and the deed of
trust was executed and recorded in that county. In September, 1876,
Ward notified Barrier that he had some cotton ready to be ginned.
Barrier gave Ward bagging and ties with which to bale the cotton,
and directed him to carry it to a certain named gin, which Ward did.
When the cotton was baled, Ward asked permission of Barrier to carry
it to the town of Meridian, in Lauderdale County, instead of to
Philadelphia, the place at which the deed of trust required that it
should be delivered. Barrier gave his permission, and Ward hauled
the cotton to Meridian with Barrier's wagon. When Ward reached
Meridian, he sold the cotton to L. C. & J. Elson. Barrier, arriving
soon after, demanded of the Elsons the cotton, or its value; and
upon their refusal to comply with his demand, he brought, in his own
name, an action of assumpsit for the value of the cotton. The deed
of trust required Ward to deliver his cotton to Barrier as soon as
it was made ready for market; and it also empowered the trustee to
take the mortgaged property into his possession, and, after
advertising, to sell the same, whenever he or Barrier should deem it
to be endangered as security for the indebtedness.
Barrier obtained a judgment for $114.32, to which the defendants
sued out a writ of error. Several instructions given for the
plaintiff below were excepted to by the defendants, but are not set
out here, because not considered by this court.
W. H. Hardy, for the plaintiffs in error.
The cotton was never bought by Barrier, there being no price agreed
upon, and no delivery. The transaction lacks every essential of a
sale and purchase. The pretence that Barrier bought the cotton is an
effort to evade the decision in Westmoreland v. Wooten, 51 Miss.
825, and Cloud v. The State, 53 Miss. 662.
E. Watkins, for the defendant in error.
The verdict is supported by the evidence. The delivery of the cotton
to Barrier was complete. Jordan v. Harris, 31 Miss. 257. As to the
price, the law presumes that Barrier would allow Ward, on his debt,
what the cotton was worth. Smith v. Sparkman, 55 Miss. 649. The
value of cotton on a given day, being easily ascertained, may be
proven. Story on Sales, sect. 220; Halsey v. McLean, 10 Bing. 487.
CAMPBELL, J., delivered the opinion of the court.
The result reached in the Circuit Court in this case is correct, and
will not be disturbed, although the contest was made on what we do
not regard as the real ground of controversy suggested by the facts.
*2 Plaintiffs in error were purchasers of the cotton conveyed by the
deed of trust, with full legal notice of the right of defendant in
error as the beneficiary in the deed of trust. The fact that the
cotton was sold in a county other than that in which the deed of
trust was recorded, did not release it from the deed of trust. Code,
sect. 2305; Bogard v. Gardley, 4 Smed. & M. 302.
It is claimed that the cases of Westmoreland v. Wooten, 51 Miss.
825, and Cloud v. The State, 53 Miss. 662, deny the liability of the
purchasers of the cotton to answer in assumpsit for the value of the
cotton. Not so. A deed of trust does not create a mere lien; it
confers title; and, after condition broken, the legal title is in
the grantee, and he may maintain any action which an owner can
maintain. A lien is a charge upon a thing, a right to resort to it
for satisfaction, but is neither jus in re nor jus ad rem; and,
therefore, no action can be maintained by the lien-creditor which
requires title for its maintenance, for the obvious reason that he
has not title. Hence, the manifest distinction between the two
classes of cases. The difference is between a mere right to fasten a
charge on a thing, and a title to a thing, with all the incidents of
title.
Affirmed.
56 Miss. 394, 1879 WL 3975 (Miss.)
End of case ------------
Supreme Court of Mississippi.
J. J. PERRY
v.
BARNEY LEWIS.
October Term, 1873.
1. EXEMPTION LAWS.--The theory, as well as the text, of the
exemption laws, is, that the property therein enumerated shall be
exempt from seizure and sale, under execution and attachment. Code
1857, art. 280-1.
2. SAME--ACTS 1865, PAGE 137.--This statute indicates two modes to
determine prima facie the right of exemption. The one, in case of
doubt, the sheriff may summon three disinterested citizens to
resolve it. Section 4. The other, the judgment debtor may designate
the property specially claimed as exempt. Section 5. "And any
officer who shall levy or seize property exempt, etc., shall be
liable to an action of trespass, or on the case."
3. SAME--RULE AT COMMON LAW.--The rule at common law was that the
sheriff must know, at his peril, that the property seized is liable
to the writ. If he made an improper seizure, although actuated by
good faith, and in mistake, the remedy of the party aggrieved was
trespass for the unlawful taking and asportation.
4. FORMER RECOVERY--GENERAL PRINCIPLE.--The general principle is
that a judgment between the same parties for the same cause of
action is conclusive, as between them. The first action must be
competent to dispose of the suit on its merits. The first action is
not a bar to the second, if the judgment were rendered for faults in
the declaration or pleadings. The true test is, whether the same
cause of action was litigated and adjudicated in the former suit.
The form of the action may be different, but the grievance and wrong
complained of, must be the same in both suits. Agnew v. McElroy, 10
S. & M., 552.
5. CASE IN JUDGMENT.--Although the first action may be misconceived,
and might have been defeated for that reason, yet, if the defendant
makes no objection, but pleads to the merits, and there is verdict
and judgment and satisfaction made, this is a bar to the second
suit, for the same cause, and plaintiff will not be heard to object
that the first action was improper, and ought not to have been
sustained.
*1 Error to the circuit court of Newton county. Hon. ROBERT LEACHMAN,
Judge.
Lewis sued Perry in the court below, in trespass, for taking and
converting to his own use, one horse, two yoke of oxen, and one
wagon, valued at $1,000.00. Defendant pleaded not guilty, and
specially: 1. That, at the December term of the Newton circuit
court, plaintiff had sued him on his official bond, as sheriff of
that county for the same trespass in taking said property, and
recovered judgment therefor in the sum of $180.00 and costs, which
was paid. (To the plea the plaintiff demurred, upon the ground that
this was an action of trespass, and the alleged judgment on bond,
with satisfaction thereof, is no defense.) 2. That said supposed
trespass was the taking of said property under a lawful writ of
attachment issued at the suit of Ward & Co. against Lewis
(particulars of which the plea set forth), and so making such levy,
defendant, as sheriff, returned said writ into court; and said Ward
& Co. executed to defendant, before return day of the writ, a good
and sufficient bond of indemnity, conditioned according to law for
levying said attachment, which bond was by him duly returned into
court with said writ and is in full force. (There was a demurrer to
this plea also, on the grounds: 1. That it sets up the indemnity
bond as a justification of the trespass. 2. That it did not aver
that said property was subject to the attachment. 3. Nor allege that
any doubt arose as to title. 4. Nor show that said property was not
exempt from seizure and sale under legal process.)
The demurrers were sustained without leave to answer over.
Defendant's third special plea was filed after judgment on demurrer,
and was stricken out as being a repetition of the second plea
demurred to. It sets up the fact of a previous suit by plaintiff
against Perry, as sheriff, and the sureties on his official bond,
for the value of said property, in which suit defendant, Perry, by
his plea, "acknowledged the sum of $180.78 to be due said plaintiff
on account of said property and his acts in relation thereto," and
with said plea tendered said sum of money into court, and plaintiff
"accepted the same as a full satisfaction of his suit and this claim
against said defendant on account of the value of, and defendant's
acts in relation to, said property;" that accordingly judgment was
entered for said sum and costs, which were paid before commencement
of this suit.
Defendant's fourth special plea, to which there is no replication,
avers payment of said sum in mitigation of damage claimed, and a
bill of particulars is filed therewith.
On the trial the proof was that the levy of the attachment was made
as averred in the pleadings, on the property, which Lewis claimed as
exempt, although he did not inform the officer at the time of the
levy that the property was exempt. The attorney for the plaintiff in
the attachment accompanied the officer, and was told by Lewis that
the sheriff "had better have a bond of indemnity," to which the
attorney replied, that "it had been provided." Lewis suffered
considerable damage; was compelled to break up his business and
remove his family to Neshoba county, at great expense; his family
suffered from privation, and he was put to considerable expense on
account of the levy, attending court, paying attorney's fees, etc.
The property is valued at various sums, from $325.00 to $415.00. It
sold for $180.00.
*2 The court instructed the jury for the plaintiff:
1. The sheriff is liable for the acts of his deputy; and if the jury
believe that the defendant recognized the act of his deputy, and
sold the property, he became a trespasser from the beginning. 2.
Authorizing the jury to give exemplary, punitive and vindictive
damages in view of the enormity of the offense. 3. The jury may
render such a verdict as they may think proper, even exceeding the
amount proven, and may give "smart money" or vindictive damages if
they think the evidence justifies it. 4. If the jury believe that
the property levied on was exempt from attachment, they must find
for the plaintiff.
The defendant asked the court to instruct the jury, that if they
"believed that the property, at the time of the levy, was not worth
more than $180.00, they will find for defendant;" which was refused
by the court. Defendant asked this charge: "A sheriff cannot be held
responsible for the action of his deputy in committing a trespass,"
which was modified as follows: "The court instructs the jury, that
if they believe that J. J. Perry, in his own proper person, or by
the directions to his deputy, or his approval of afterwards, was not
guilty of the acts complained of as a trespass in plaintiff's
declaration, they will find for defendant.
The jury found a verdict for plaintiff, and assessed his damages at
$800.00.
Defendant moved the court for a new trial, because: 1. The court
erred in sustaining the plaintiff's demurrers to defendant's second
and third pleas. 2. And in striking out defendant's fourth plea. 3.
And in giving the instructions. 4. And in refusing those asked by
defendant. 5. The damages are excessive. 6. Misconduct of the jury.
The motion was overruled; defendant excepted, and brings his case to
this court by writ of error, and for error assigns the judgment of
the court below in overruling his motion for a new trial.
George L. Potter, for plaintiff in error.
Harris & George, for defendant in error.
The reporters find no brief on file on either side in this cause.
SIMRALL, J., delivered the opinion of the court:
The theory, as well as the text of the exemption laws, is, that the
property therein mentioned shall "be exempt from seizure and sale
under execution and attachment." Art. 280, 281, Code, 1857, p. 529;
1 sec., act. 1865, p. 137. Two modes are indicated in the act of
1865, to determine, prima facie, the right of exemption, (4th and
5th sections). In case of doubt, the sheriff may summon three
disinterested citizens of the county to resolve it. Under the 5th
section, the judgment debtor may designate the property specifically
claimed as exempt, "and no property so designated, shall be seized
by the officer, otherwise than as provided for in the 4th section."
That is to say, such designation, raises a doubt as to the liability
of the property; and before the sheriff shall proceed further, he
must refer it, for resolution, to "three disinterested citizens."
*3 The last clause of the 5th section subjects any officer who shall
levy or seize property exempt, etc., to the action of trespass on
the case.
The rule at common law was, that the sheriff must know at his peril,
that the property which he seizes is liable to the writ. If he made
an improper seizure, although actuated by good faith, and in
mistake, the remedy of the party aggrieved was trespass for the
unlawful taking and asportation of the goods.
In this case, the sheriff did not take the decision of three
citizens as to the "exemption" of the property, nor did the debtor
specifically designate the several articles as claimed to be exempt.
The levy was made on the sheriff's responsibility, and if unlawfully
made he incurred liability either in trespass or case.
The greatest difficulty presented for solution is the sufficiency,
in law, of the second plea to bar the action. That plea, in
substance, sets up that the plaintiff, before the institution of
this suit, brought an action of debt upon his official bond, as
sheriff, alleging as a breach, "a trespass upon the same property
described, and the same, as in the plaintiff's declaration alleged
in this suit, the act complained of, as a breach of said bond being
the same and one with the act of trespass in this suit," and that
such proceedings were had that the plaintiff recovered judgment for
$180.00 and costs, which judgment the defendant has satisfied by
paying the $180.00 to the plaintiff.
It is contended by the counsel for the defendant in error that a
recovery in the action of debt, upon the bond, is no bar to this
action of trespass. The general principle is, that a judgment
between the same parties, for the same cause of action, is
conclusive between them. The first action must be competent to
dispose of the case on its merits, and such disposition has been
made. The first action is not a bar to the second if the judgment
were rendered for faults in the declaration or pleadings. The true
test is, whether the same cause of action was litigated and
adjudicated in the former suit. The form of the action may be
different, but the grievance and wrong complained of must be the
same in both suits. Agnew v. McElroy, 10 S. & M., 552. The plaintiff
may show that the latter suit is for a different cause of action. If
the defendant plead the former recovery, the plaintiff may take
issue, or he may admit the recovery, and set up that it was for a
different subject matter. 3 Chit. Pl., 929, 1159. The plea does,
with sufficient clearness, aver that the breach of the bond
assigned, was the same trespass as complained of in the plaintiff's
declaration in this suit.
But it is said that the plaintiff in the suit upon the bond could
not have redress for the trespass. But can the party set up that
objection? By voluntarily bringing that suit to obtain damages for
the unlawful seizure of his goods, and prosecuting it to judgment,
and then accepting the money, ought he not to be precluded from
asserting, in this suit, that the action of debt was improvidently
brought? The defendant made no objection to the form of the action.
The judgment was upon the merits, and then the money was accepted in
its satisfaction. The matter in litigation complained of, as the
injury, was the unlawful seizure of the exempt property--the same
wrong and injury charged against the defendant in this suit. The
sheriff might have objected that he was not liable, upon his bond,
for the trespass. He, however, waived the point, and contested with
his adversary on the merits. After the plaintiff has prosecuted his
suit to a recovery, and received the money awarded as compensation,
it is too late for him, in this suit, to object to the form of
remedy originally adopted. We think the plea, if proved, is a bar to
the action. In this view of the case, it is unnecessary to consider
the other assignments of error.
*4 Judgment reversed and cause remanded.
49 Miss. 443, 1873 WL 4161 (Miss.)
End of case ------------
Supreme Court of Mississippi.
E. D. GAMBLIN
v.
THE STATE OF MISSISSIPPI.
October Term, 1871.
1. CIRCUIT COURT -- INSTRUCTIONS -- PRACTICE. -- It is proper for a
circuit court to refuse charges which are a mere repetition of those
already given.
2. NEW TRIAL -- WHEN VERDICT WILL NOT BE SET ASIDE. -- This court
will not interfere with the verdict of a jury which has not been
misled by instructions, except in very clear cases of error, passion
or prejudice.
3. INDICTMENT FOR EXHIBITING DEADLY WEAPON -- FORMAL DEFECT. -- The
mere omission of the word "manner" after the words "rude, angry and
threatening" in an indictment for exhibiting a deadly weapon, is a
formal defect and the subject of amendment under the statute. In
such an indictment it is not necessary to charge that defendant was
"carrying" the weapon. It is sufficient to charge that having it, he
exhibited it, without the words "or carrying."
4. SAME -- NOT NECESSARY TO CHARGE THAT THE PISTOL WAS LOADED. -- In
an indictment for unlawfully exhibiting a pistol it is not necessary
to charge that the pistol was loaded.
*1 ERROR to the circuit court of Neshoba county. LEACHMAN, J.
The minute detail with which the court has, in its opinion,
presented the points it has considered, leaves nothing for the
reporter to state.
S. A. D. Steele, for plaintiff in error.
I. The indictment was fatally defective. As it was returned by the
grand jury, it charges no offense. The word in the statute that
defines the act denounced by the legislature is omitted. It is not
unlawful to exhibit a weapon in a ""rude, angry or threatening"
state of mind, but it must be exhibited in that """manner," and if
not averred in the indictment to be in that "manner," it is no
violation of the act, and hence this indictment, as returned by the
grand jury, charges no offense. The indictment being fatally
defective in substance, the question arises on the motion to quash,
and it is clear that the court could properly have rendered but one
judgment: to sustain the motion. There can certainly be no question
on this point.
II. It was error to sustain the motion to amend. At common law, I
apprehend, there can be no question that an indictment could not be
amended, in substance, after it was returned by the grand jury. A
rule of construction that, I believe, universally obtains is, that a
statute in derogation of the common law must be strictly construed.
With this rule of construction in view, I respectfully submit that
there is no statute that will justify this amendment without the
consent of the defendant. The only statutes that bear on this
question, that I have been able to find, are, art. 262, p. 615, and
art. 257, p. 615, Rev. Code, 1857. To construe these articles
together (and they are separate articles of the same act, and must
be so construed), and there is no authority for the amendment.
The honorable chief justice, in a very well-considered opinion,
clearly intimates that such an amendment cannot be made. Unger v.
State, 42 Miss. 649. But if it was correct to overrule the motion to
quash, there could be no propriety in amending the indictment. If
the indictment was defective in form only, the motion might have
been confessed, and leave asked to amend, and, under the articles
above referred to, the court have allowed the amendment to be made,
but I do insist that it is error to allow the indictment to be
amended in substance, at the time it was ordered, against the
consent of the defendant. I do insist that it is ridiculously
absurd, as well as erroneous, for the court to hold the indictment
good, and then order it to be amended.
III. The indictment was not amended as ordered, hence the amendment
on which the defendant was tried charges him with no offense.
IV. The motion for a new trial should have been granted.
V. The fifth charge is the law, and should have been granted.
J. S. Morris, Attorney-General.
The first real question presented upon the record in this case is
that arising upon the amendment of the indictment by the insertion
of the word "manner" after the words "rude, angry and threatening."
It is not denied that the amendment might properly be made; it is
not denied that a motion for this purpose was properly made and
properly sustained, but it is insisted that, although it was the
judgment of the court that the indictment should be so amended, yet,
in truth and in fact, the word "manner" was not actually inserted in
the indictment as by the judgment of the court might have been done.
Upon this point, it is sufficient to say that an actual amendment in
such a matter is not necessary. Under the English statute of
amendments and jeofails, which was always more strictly construed
than ours, Lord Hendrick said: "An actual amendment is never made,
but the benefit of the act is obtained by our overlooking the
exception." Rex v. Landaff, 2 Strange, 1011; 2 Tidd's Prac. 928.
See, also, Small v. Cole, 2 Burr. 1169. I am not aware that this
question has ever been before this court; but in Tennessee the
supreme court has gone much farther than ever the English courts
have. Said McKinney, J., in the case of Eakin v. Burger, 1 Sneed,
417: "There is no force in the objection that no application was
made in the circuit court to amend for the purpose of supplying the
proper averments under the statute. The general rule under statutes
of amendments is, that the amendments need not, in point of fact, be
made. The benefit of the statute is obtained by the court
overlooking the exception or considering the amendment as made." In
the case thus disposed of, it appears that "no application had been
made to amend in the circuit court;" but the court "overlooked the
exception or considered the amendment as made." But in the present
case the application to amend was formally made and sustained before
the trial. See, also, 1 Bish. Cr. Pr., § 386, and note 1.
*2 The assumption insisted on by counsel for plaintiff in error,
that the court below ought to have sustained the motion to quash the
indictment, and then have sustained a motion for leave to the
district attorney to amend, would lead to an absurdity. How could a
court amend an indictment after it had been quashed?
The other question raised by the assignment of errors, and in the
argument for plaintiff in error, relate to the sufficiency of the
evidence to warrant the conviction, and the correctness of the
instructions. Upon all this I think it very clear, from an
examination of the record, that this court will not hesitate for one
moment in saying that the testimony warranted the verdict of guilty;
that the jury was fairly and, as regards the interests of the
prisoner, liberally instructed; that the instructions asked and
refused on behalf of the defense were properly refused; that there
is no error prejudicial to the rights of the plaintiff in error, and
that the judgment must be affirmed. The habit of carrying and
exhibiting deadly weapons in a lawless manner, upon slight or no
provocation, in crowds and in public places, has been, and is now,
productive of vast and incalculable evil, not alone to individuals
and to families, but also, and to a still greater extent, to the
state. This is a clear and an aggravated case, and the affirmance of
the verdict of the jury and judgment of the circuit court will be
just and salutary in its example.
TARBELL, J.:
The plaintiff in error was indicted at the September term of the
Neshoba county circuit court, 1867, under art. 56, Code, 582, for
the exhibition of deadly weapons. At a subsequent term, a motion to
quash was submitted on the following grounds: "1st. Because the
indictment does not charge that the pistol was loaded; 2d. It does
not charge that the defendant was carrying the pistol charged to
have been exhibited; 3d. It does not charge the defendant with
exhibiting the weapon in a rude, angry and threatening manner." This
motion being overruled, the accused pleaded not guilty, the district
attorney having obtained leave to amend the indictment by inserting
therein the word "manner." On the trial the court instructed the
jury for the state as follows: "If the jury believe from the
evidence that the defendant, E. D. Gamblin, exhibited the pistol in
a rude, angry and threatening manner, in the presence of three or
more persons, and not in his necessary self-defense, he is guilty as
charged, and the jury should so find."
The following instructions were given for the defendant: 1st. "To
constitute the offense charged in the indictment, the state must
prove that the defendant exhibited the pistol in a rude, angry and
threatening manner, and not in necessary self-defense, to the
exclusion of every reasonable doubt, and unless the state has so
proven, the jury should find the defendant not guilty." 2d. "The
jury should look at all the testimony in the cause, and, if they
believe that the defendant had reasonable cause to apprehend an
assault on himself and drew his pistol to defend himself, they
should find him not guilty." 3d. "If the jury have a reasonable
doubt as to the guilt of the defendant, arising out of the
testimony, they should acquit."
*3 The following, asked for defendant, were refused: 1st. "If
Gamblin had reason to believe that there was a conspiracy between
Franklin and Salter to do him personal violence, he had a right to
draw his pistol in self-defense, and if the jury believe from the
evidence that Gamblin did draw his pistol after he knew that
Franklin had drawn his, and when he was about to be assaulted by
Salter, and that he drew it in self-defense, then the jury should
find the defendant not guilty." 2d. "If the jury are in doubt as to
whether the pistol was drawn in self-defense or not, arising out of
the testimony, they should acquit."
The jury having returned a verdict of guilty, a new trial was asked,
on the ground that the court erred in giving the instructions asked
for the state, in refusing two of the instructions asked by the
defendant, and because the verdict was contrary to law and evidence.
Another trial was denied, and the defendant sued out a writ of
error. In this court, the following are assigned as errors: 1st. The
action of the court in overruling the motion to quash the
indictment. 2d. In sustaining the application to amend. 3d. The
indictment not having been amended in fact charges the defendant
with no offense. 4th. In overruling the motion for a new trial.
There were several witnesses sworn, detailing the circumstances upon
which the plaintiff in error was convicted. The occurrence took
place in the grand jury room in the presence of several persons,
some of whom were examined on the trial. The difficulty grew out of
words reported to have been used by Gamblin with reference to
another party, which, being denied by him, an altercation was the
result, and pistols were drawn by Gamblin and another, but it is
urged by counsel that the accused drew last and only in
self-defense.
The charges given to the jury presented, with the most perfect
impartiality, every phase of the case which could be considered by
them under the statute for the violation of which the accused was on
trial. In fact, those charges were almost exceptional for brevity,
clearness, directness, and the absence of matter calculated to
confuse or create a leaning for or against the defendant. The
instructions asked, but refused, are mere repetitions of the law and
the questions propounded in those given, while they are
objectionable in construction, in a partial rehearsal of testimony,
and in a mode of expression calculated to mislead. Those given are
models of precision and impartiality, while those refused presented
no new questions of law, and were open to the objections already
stated.
Of the testimony, the jury are so far the exclusive judges, that,
except in very clear cases of error, passion or prejudice, an
appellate court will not interfere with their verdicts. Whether the
verdict in a given case is strictly in accordance with the
testimony, a court can determine only by substituting the judgment
of the judges for that of the jury, which would be in violation of
all the rules in such cases; but the opinion of the former upon
questions of fact, like that of the latter, would be subject to the
imperfections of humanity, with the same liability to err in the one
as the other. Within the rule prescribed to us, we see no occasion
to undo the action of the jury in the case at bar, unless, in view
of the evidence, their finding is clearly wrong. The law has wisely
imposed a delicate and responsible duty upon jurors, and it is not
for the court to rejudge their judgment. Kelly et al. v. Miller, 39
Miss. 17.
*4 The only meritorious question in this case is, whether the court
erred in refusing to quash the indictment, which charged that E. D.
Gamblin, "having a certain deadly weapon, to wit, a pistol, did then
and there exhibit the same in a rude, angry or threatening, in the
presence of three or more persons, and not in his necessary
self-defense," etc., omitting in the original the word ""manner." An
examination of article 56, Code, 582, shows that, except the
omission of the word "manner" after the word "threatening," the
indictment conforms precisely to the terms and language of the
statute. 1 Bish. Cr. Pr., § § 375, 385; Kline v. The State, 44
Miss.; Riley v. The State, 43 ib.; Surratt v. The State, supra, p.
601.
In Unger v. The State, 42 Miss. 642, the indictment was found in
1866. During the trial, in 1867, the court permitted the presentment
to be amended by changing D. W. Humphreys into D. G. Humphreys. It
appeared from the testimony that the property charged to have been
stolen (the indictment being for larceny) belonged to David George
Humphreys. On error, this was held to be a fatal defect, which might
have been taken advantage of before verdict. The defect, however,
was held to be cured after verdict by the statute of jeofails. Art.
7, Code, 573.
Kline v. The State, 44 Miss. 317, was an indictment under art. 226,
Code, 607, which enacts, that "no merchant, *** or other person,
except apothecaries or druggists, shall keep open stores, or dispose
of any wares *** on Sunday ***." The exceptions of the statute were
not negatived in the indictment, which was demurred to, but allowed
to be amended at a term subsequent to its presentment, under art.
268, Code, 616. The court say: "After objection has been made by
demurrer or motion to quash for any formal defect, the court may, if
thought necessary, cause the indictment to be forthwith amended, and
thereupon the trial shall forthwith proceed. If the objection taken
to this indictment were merely 'formal,' the court had authority to
order the amendment. But we have shown that the omission to negative
the exception in the statute, in favor of 'druggists and
apothecaries,' was a fatal defect; and power is not conferred on the
court by this article to make other than 'formal' amendments. Art.
268 refers to sundry defects, disclosed during the progress of the
trial, which may be amended. This article applies to a variance
between the allegations of the indictment and the testimony, and
empowers the court to order amendments, so as to make the allegata
correspond with the probata. The action of the circuit court cannot
be brought within this provision." In the case at bar the counsel
for the plaintiff in error presses the argument on this branch of
the case upon the idea that the defect in the indictment is matter
of substance. A comparison shows it to be wholly unlike the defects
in the cases of Unger and Kline, just referred to. The language of
the indictment, following that of the statute (art. 56, Code, 582),
leads to the certain conclusion that the absence of the word
"manner" from the indictment was a clerical omission, and may be
held in this case to be "formal" under art. 268, Code, 616, or an
"irregularity or informality" within art. 7, Code, 573. There is but
the one statute on the subject of the exhibition of deadly weapons,
which enacts that "he who, having or carrying a deadly weapon, shall
exhibit the same in a rude, angry or threatening manner," not in
necessary self-defense, shall be punished, upon conviction, as
therein prescribed. The indictment of the plaintiff in error, as
presented, charged that, having a pistol, he did then and there
"exhibit the same in a rude, angry or threatening, in the presence
of three or more persons," etc. This comparison more clearly shows
the omission of the word "manner" to have been accidental, than any
argument can do. But, without this word, the offense was
"substantially described," which is all that is required. Art. 7,
Code, 573; Kline v. The State, 44 Miss. In its absence, there could
be no hesitation as to the statute upon which the charge was based.
There could be no doubt as to the offense imputed. The accused could
not complain of uncertainty, want of notice, or inability to prepare
for trial. And a conviction or acquittal on this indictment, as it
stood before amendment, might have been pleaded in bar of another
prosecution for the same offense. Suppose the indictment had
presented the accused for exhibiting a deadly weapon, rudely,
angrily and threateningly, there can be little doubt of its
sufficiency within the adjudications. In this case it charges that
the accused, "having a certain deadly weapon, to wit, a pistol, did
then and there exhibit the same in a rude, angry or threatening, in
the presence," etc.
*5 There is nothing in the argument of counsel that the indictment
ought to have included the words "or carrying," or that it ought to
have averred that the pistol was loaded. It is sufficient that the
indictment conforms substantially to the statute. Kline v. The
State, 44 Miss.; Riley v. The State, 43 ib.
The bill of exceptions given in the record states the amendment to
have been in fact made, and, on the whole, we are of the opinion the
court did not err in overruling the motion to quash and in granting
leave to amend.
The judgment of the court below is affirmed.
45 Miss. 658, 1871 WL 4015 (Miss.)
End of case ------------
High Court of Errors and Appeals of Mississippi.
THE STATE OF MISSISSIPPI
v.
JOSHUA BARTLETT.
April Term, 1856.
1. BOND, VOLUNTARY: NOT BINDING.--A voluntary bond, by the law of
this state, is not binding on the obligors.
2. SAME.--A demurrer will be sustained to a declaration on a bond,
which appears on its face to be voluntary and without consideration.
3. BOND: BY PUBLIC OFFICER, WHEN NOT REQUIRED BY LAW, NOT
BINDING.--If a public officer, execute an official bond not required
of him by law, it is voluntary, and not binding on him. This is
different from a case where the law requires a bond from the
officer, as a condition precedent to the enjoyment of his office;
and where, in giving it, he fails to comply with the law, in that
case the bond will be valid as a common law obligation, although not
made to conform in its provisions, to the strict letter of the
statute.
A statutory bond, not duly executed, or not conditioned as required
by statute, may be sustained as a common-law bond.
*1 IN error from the Circuit Court of Neshoba county. Hon. John
Watts, judge.
No counsel appeared for plaintiff in error.
Isaac Enlore, for defendant in error, contended, that the act of
1846, requiring the county treasurer to give bond, for the
safe-keeping of common school fund, was repealed by the act of 1848,
so far as the county of Neshoba was concerned: that the bond in this
case was not therefore required by law, and was a voluntary bond,
and not binding, and cited Hutch. Code, 230, 243, 396, 460; Acts of
1850; Acts of 1852, p. 146, 147.
FISHER, J., delivered the opinion of the court.
This was an action brought in the Circuit Court of Neshoba county,
in the name of the state, for the use of the common school fund of
that county, against the defendant in error, as administrator of the
estate of William Perry, deceased, late county treasurer of said
county, upon a certain bond executed by the said treasurer, with
condition that he should faithfully and honestly render a just and
true account to the board of police of said county, when thereto
required by them, of the condition of the common school fund of said
county; that he should pay over said funds to the order of said
board, and should in all respects faithfully and impartially perform
his duties as such treasurer of said fund. The complaint, after
setting out the condition of the bond, avers that the said treasurer
received during his term of office, the sum of one thousand dollars,
on account of said fund, which he failed to account for, or to pay
over to any person authorized by law to receive the same.
The defendant below demurring to the complaint, assigned, among
other causes, that said bond was not required by law to be executed.
The act to establish a system of common schools, and for other
purposes, approved the 4th of March, 1846, makes the county
treasurer ex officio treasurer of the common school fund of his
county, and requires him to enter into bond, to the president of the
board of police of his county, with substantially such conditions as
that contained in the bond in this case. Laws of 1846, p. 100, § 8.
But by the first section of the act of 1848, the act of 1846, as to
the county of Neshoba and certain other counties, is unconditionally
repealed. Acts of 1848, p. 201.
While we are of opinion, that under the provisions of the fifth and
sixth sections of the act of 1848, the county treasurer is still
treasurer of the common school fund of his county, yet so much of
the act of 1846 as required him to execute a separate bond to
account for said fund, must be treated as repealed, and that the
bond now in question cannot, therefore, be said to have been taken
in virtue of any statute requiring the same to be executed.
*2 If valid, therefore, we must look to some rule of the common law
to sustain it. It may be admitted, that according to the rules of
the common law, a voluntary bond was binding upon the party
executing it, because his seal imported a consideration. But such is
not the law of this state, as modified by our statute; the
consideration of a specialty may be impeached or inquired into, in
the same manner as that of a simple contract; and where the bond
shows upon its face, that it was not an act required to be performed
by the treasurer, before he could enter upon the discharge of his
duties, and be legally entitled to receive the emoluments of the
office, it cannot be said to rest upon any consideration whatever.
The party must be presumed to have executed the bond required of him
by the statute, before entering upon the discharge of the duties of
his office. Having executed such bond, conditioned to perform all
the various duties required of him by law, his right to the office
was complete, without entering into any further or other obligation.
It has however, been said, that though the bond is not valid as a
statutory bond, it is nevertheless valid as a common law instrument.
Upon this point we deem it only necessary to remark, that if there
was any statutory provision, requiring such bond to be given as a
condition precedent to entering upon the discharge of the duties of
the office; and in the execution of the bond, there had been some
departure from the statute, or failure to comply with its
provisions, the bond might be sustained as a valid common law
obligation, because the giving of it was a condition precedent to
taking possession of the office; and the party having entered upon
the office, attempted to perform its duties and received its
emoluments, could not be heard to say, that he had violated the law
in so doing. But the rule is very different where no such bond is
required. The only question, then is, whether it is valid, as the
voluntary act of the parties executing it.
We have seen that the common law, as modified by our statute, will
not sustain a bond, any more than a simple contract, without a
sufficient consideration to support it. Such being our view of the
law, we are of opinion that there is no error in the judgment of the
court below sustaining the demurrer.
Judgment affirmed.
1 George 624, 30 Miss. 624, 1856 WL 3941 (Miss.Err. & App.)
End of case ------------
High Court of Errors and Appeals of Mississippi.
UNICY WINDHAM
v.
JOHN WILLIAMS, Administrator, &c.
April Term, 1854.
The recital in the record of an oath administered to a jury of good
and lawful men, in these words, "who being impanelled, tried, and
sworn truly to try the issue joined between the parties," &c., is
held to be sufficient, and is sustained upon principle and
authority. Dyson v. The State, 26 Miss. 362, cited and confirmed.
In finding a verdict by a jury, if more be found than is necessary,
it may be disregarded as surplusage, but it does not vitiate that
which is necessary and well found.
The evidence cannot be noticed by the court in this case, because it
is not incorporated in a bill of exceptions, the exceptions taken
not having the essential requisites of a bill of exceptions, nor
does the proceeding purport to be one.
The judgment was erroneous, because it was rendered against the
defendant and sureties, upon a bond which was a different one from
that which contained the slaves found by the verdict to be the
property of the plaintiff.
Where the recital of the oath of the jury in the record is that a
jury of good and lawful men came, "who being impaneled, tried, and
sworn truly to try the issue joined between the parties," etc., it
was held to be sufficient.
If in a verdict more is found than is necessary, it may be
disregarded as surplusage.
*1 IN error from the circuit court of Neshoba county; Hon. F. M.
Rogers, judge.
The opinion contains the statement of the case.
T. J. and F. A. R. Wharton for appellant.
The recital of the record is, "this day came the parties by their
attorneys, and the issue joined; thereupon came a jury of twelve
good and lawful men, to wit, H. E. Simmons and eleven others, who,
being impanelled, tried, and sworn truly to try the issue joined
between the parties, and the evidence having been heard, retired to
consider of their verdict," &c. This question has been so recently
and fully considered by this court, and the rule upon the subject so
lucidly expounded in the cases of The State v. Dyson and McCarty,
that it is scarcely necessary to do more than refer to those cases,
in connection with our statute, Hutch. Co. 879, § 132, which
prescribes the form of oath to be administered. That form is in the
following words: "You and each of you, do solemnly swear that you
will well and truly try all issues and execute all writs of inquiry
that may be submitted to you and left to your decision during the
present day, (or term, as the case may be,) and true verdicts give
according to the evidence; so help you God." Now is it not apparent
that the oath which the record says was administered in this case
does not comply, not in form merely, but in substance and
materiality, in at least two or three important particulars? In this
case, they were simply sworn to "truly try the issue joined." How
try it, by their own private information, or the testimony of
witnesses sworn and examined before them? But there is a total
omission also of the very material part of the statutory oath, and a
"true verdict render according to the evidence." Here they were not
sworn to render any verdict whatever. If, however, it be said in
reply, that this was implied, to wit, that they should render a
verdict, by the words of recital above stated, "impanelled, tried,
and sworn truly to try the issue joined," still the force of the
objection is not met, Upon what was such verdict to be rendered? We
say they should have been sworn a true verdict to render, upon or
according to the evidence. You are asked to infer that by the words
quoted from the record, "who being sworn truly to try the issue
joined between the parties," that they were also sworn "a true
verdict to render according to the evidence;" or rather the argument
on the other side, that all this is implied in law in the oath which
was administered. Now you may construe the oath which the record
says was administered as liberally as you please, and it is in plain
language resolvable into this, "You swear truly to try the issue
joined between the parties." That is the whole oath which was
administered. Would any one pretend that such an oath as that can be
vindicated as a substantial compliance with the formula of the
statute, or with any form of oath to be found in any law-book? The
record sets out the whole of the oath, therefore nothing is left to
implication. If it had said that thereupon came a jury, who were
duly or legally sworn, without giving the form of oath which was
administered, so that this court could have seen whether it was such
an oath as the law requires, there might be some reason for saying
that, as all things are presumed to have been rightly done, until
the contrary appears, so your honors should hold that the court
below, (being in legal contemplation acquainted with the form of
oath required by the statute,) when the record says the jury was
legally or duly sworn, administered the proper oath.
*2 The second error for which we think the case should be reversed
is, because the verdict is an illegal one,--a nullity, indeed. It is
as follows: "We the jury, find the issue in favor of the plaintiff,
and he is entitled to the possession of the following negroes
[naming them], Charity, valued at $250; Peter, valued at $700; Levi,
valued at $850; Rainey and child, at $800; and Edy, valued at $600,
and assess the value of said slaves as respectively stated above,
and we further assess the plaintiff's damages for the detention of
said slaves, at the sum of $900. We find the other slaves not
subject to plaintiff's claim."
Here again we will probably be answered, that the record does not
show that this was objected to in the court below. It need not have
been, it appears, on the record. Advantage may be at all times taken
of it. The declaration charges that plaintiff unlawfully and
wrongfully detains from the defendant in error certain negroes. The
plea is, Not guilty. That is the issue which was tried by the jury.
The verdict must respond to that issue. We submit that the above
pretended verdict is unlike any one ever before heard in such form
of action and on such an issue.
The third error presented in the record is, that the judgment
rendered on the foregoing verdict is equally defective and fatal. It
is in these words: "It is therefore considered by the court that the
said defendant, and Luke J. Hestor and Isaac B. Payne, her
securities on her replevin bond, restore to the said plaintiff the
said slaves, or pay him the respective values thereof assessed by
the jury aforesaid, and also pay the damages aforesaid assessed by
the jury for the wrongful detention of said slaves."
The judgment should have been, that said plaintiff have and recover
of and from said defendant and his securities on the replevy, the
said negroes, if to be had; if not, the value of each as assessed by
the jury; not that the "said defendant restore." See Anderson v.
Tyson, 6 S. & M. 244.
The fourth error upon which we rely, is because of the admission of
the evidence of Benjamin Windham, who is shown by the record to have
been an interested witness. An examination of the testimony will
very clearly show that this objection is well taken.
The fifth error in the record is, that there was no proof that the
right of action in the defendant in error, if he ever possessed such
right, did accrue within one year next before suing out the writ of
replevin.
The sixth ground of objection to the verdict is, that the evidence
shows that John Sutton owned at his death a girl named Viney, whom
he willed to Mrs. Windham, subject to the life-estate of Mrs.
Sutton; that Viney was exchanged for Charity, by agreement of all
the heirs and Mrs. Sutton, with the further understanding and
agreement between them, that at the death of Mrs. Sutton, Charity
was to belong to Mrs. Windham; Mrs. Sutton survived Huston Windham,
the husband of Mrs. Unicy Windham; her life-estate in Charity did
not determine in the lifetime of Huston Windham; consequently, no
title ever vested in him to said girl Charity in virtue of any
marital right. On the death of Mrs. Sutton, therefore, after the
death of Huston Windham, the title of Mrs. Windham to said girl
became absolute.
*3 Now Charity is proved to be the mother of all the negroes found
by the verdict to have belonged to Huston Windham at his death. It
is therefore clear, that Huston Windham never had any title to any
of the negroes sued for, and hence there was no cause of action
shown in this case. The girl Charity, as before stated, never
belonged to J. Sutton, who died in 1819, but was acquired in 1825 or
1826 in the manner already described.
Glenn for appellee.
1. Exceptions were not taken to the judgment of the court, or to the
judgment overruling the motion for a new trial; therefore, there is
nothing before this court. In neither case is it stated that all the
evidence is included in the bill of exceptions; consequently, this
court will not interfere with the verdict.
2. When property is given to a woman before marriage, as her
separate property without trustee, she takes legal title, which on a
marriage falls on her husband, and the property, or other exchanged
for it, becomes her husband's, and his administrator may recover it.
Faulkner v. Faulkner, 3 Leigh, 255.
3. Slaves in remainder pass to the husband of the legatee in
remainder, the wife dying before tenant for life. Wade v. Boxley, 5
Leigh, 442.
4. If a contract is made by the wife during coverture, even in
consideration of her separate property or estate, and property
acquired, there being no trustee for the wife, the legal estate
vests in the husband. Barbour v. Bishop, 1 East, 432; 2 Story, Eq.
Jur. (5th ed.) 824, see 1386; Roper on Husb. & Wife, 169, 170; 12
Pick. 173, and cases cited; 7 Meeson & Welsby, 183.
Mr. Justice HANDY delivered the opinion of the court.
The testimony appearing in the record in this case cannot be taken
into consideration, because it is not properly presented by bill of
exceptions. The paper alleged to be a bill of exceptions has not the
essential requisites of such a proceeding. It does not purport upon
its face to be a bill of exceptions, nor does it show to what
alleged error it was taken, nor whether taken pending the trial, or
to the overruling the motion for a new trial. It does not purport to
set out all the evidence given on the trial; but on the contrary, it
appears, from the grounds of the motion for a new trial, that one
Benjamin Windham was examined as a witness for the plaintiff, to
which the defendant excepted; and yet no such testimony is set forth
in the record. The case, then, as presented here, must depend upon
the points made apart from the bill of exceptions.
The first objection made to the proceedings below is, that the oath
administered to the jury was insufficient. The recital of the oath
in the record is, that a jury of good and lawful men came, "who
being impanelled, tried, and sworn truly to try the issue joined
between the parties," &c. The sufficiency of the recital of such an
oath, and the principles applicable to it, were fully considered by
this court in the case of Dyson v. The State, at the last term; and
the oath here falls fully within the reasons there stated. It is
sustained both by principle and authority. Harris, Entries, 293.
*4 The next objection is to the verdict, which is, that "the jury
find the issue in favor of the plaintiff, and he is entitled to the
possession of the slaves," which are named and the value of each
separately found, and the damages for detention are assessed at
$900. We cannot perceive any valid objection to this verdict. It
responds to the issue by finding it in favor of the plaintiff, and
adds, what is probably unnecessary, but what cannot for that reason
vitiate the verdict, that the plaintiff was entitled to the
possession of the slaves, and finds their separate value, and the
amount of damages for detention. Here every thing is ascertained
which the law requires, in order to render a judgment upon the
verdict. If more is found than is necessary, it may be disregarded
as surplusage, but it does not vitiate that which is necessary and
well found.
Nor is there any error in the judgment, as is insisted. It is in
strict conformity to the 5th section of the act of 1842, Hutch. Dig.
818, which provides that in such cases the judgment shall be, "that
the defendant restore the property to the plaintiff," &c., and not
that the plaintiff recover of the defendant the property, &c., as is
insisted on.
Another objection is, that there was no evidence that the
plaintiff's right of action accrued within one year before the
commencement of the suit. We cannot determine with propriety whether
this objection is well founded or not, as, according to the view
above taken of the bill of exceptions, the evidence is not before
us. Regarding the case as not presenting the evidence, we cannot
properly ascertain whether any point is sustained by evidence or
not, and therefore this objection could not prevail. But if we could
notice the bill of exceptions, it would appear from it that letters
of administration of the estate of the plaintiff's intestate were
granted to the plaintiff in April, 1848; and the record shows that
this action was instituted in June, 1848. The right of action
accrued to the plaintiff by his letters of administration, and thus
it appears that the right of action did accrue within one year.
The remaining ground of error urged is well founded. Upon the
delivery of the slaves by the sheriff to the defendant, two bonds
were executed by the defendant for the forthcoming of the slaves,
one embracing the slaves named in the verdict, and the other
embracing a slave not found in the verdict to belong to the
plaintiff. These bonds had different sureties to them, and the
judgment was rendered against the defendant and sureties upon the
latter bond, instead of the bond for the slaves found by the verdict
to be the property of the plaintiff. In this respect the judgment is
erroneous, and is reversed; and this court, proceeding to render
such judgment as should have been rendered by the court below, doth
adjudge that the plaintiff in error and Luke J. Hester, Joshua McH.
Hicks, and Patterson Windham, restore to the defendant in error the
slaves named in the verdict and adjudged to the defendant in error,
severally, or pay him the value of each of said slaves assessed by
the verdict, and also that they pay him the damages assessed by the
verdict for the detention of said slaves.
5 Cushm. 313, 27 Miss. 313, 1854 WL 2244 (Miss.Err. & App.)
End of case ------------
High Court of Errors and Appeals of Mississippi.
CATHARINE EDWARDS
v.
HOLLOWAY E. SIMMONS.
April Term, 1854.
Where A. signed his name as security for B. to a note executed for
money borrowed by him (B.) from C., and in the transaction A.
trusted alone to B. for indemnity, if he failed to pay, with nothing
to show that the money was obtained for, or was used by B. as agent
for the use of D.:--Held, that D. cannot be made liable for the
money thus paid by A. as security for B., unless it be shown that D.
was the party trusted.
A. borrowed money of B., and gave his note for it, and C., signed
his name as security. C. trusted alone to A., who did not disclose
that he acted as agent for D., or anybody. B. sued D., alleging that
A. acted as his agent. Held, that D. could not be made liable to C.,
unless proved to have been the party trusted.
*1 IN error from the circuit court of Neshoba county; Hon. John
Watts, judge.
H. E. Simmons brought suit in the circuit court of Neshoba county
against Catharine Edwards, to recover an amount of money which he
alleges he paid as her security. The complaint states that Catharine
Edwards, by her agent, Charles W. Edwards, on the 4th of June, 1849,
borrowed of David Backstrow $100, for which said agent executed his
note to said Backstrow, and procured plaintiff to join in its
execution as surety. At the time the money was borrowed and the note
executed, Charles W. Edwards did not disclose to plaintiff or
Backstrow that he was acting for Catharine Edwards, or for any
person but himself; yet plaintiff avers that in the whole
transaction the said Charles acted as the mere agent of the
defendant, and that the money borrowed was for her use, which facts
were wholly unknown to plaintiff at the time of executing said note.
That plaintiff paid said note, $108.80, to Backstrow, which said sum
he avers was paid to the use of defendant, and at her special
instance and request.
To this complaint defendant demurred, and assigned for causes, that
the complaint did not disclose a cause of action against defendant,
and that no liability is stated by the complaint, and other causes.
This demurrer was overruled.
Defendant then answered, denying all the allegations of the
complaint, specifically.
Plaintiff then proved that Charles W. Edwards borrowed of Backstrow
$100 about 4th of June, 1849, and executed a note therefor in his
own name with plaintiff as security, and that plaintiff, as surety,
paid it, $108.80. He then proved by the deputy sheriff that the
deputy, by virtue of an execution of J. J. Parker v. Catharine
Edwards, Charles W. Presley, and John E. W. Carnell, that he levied
on four mules as the property of defendant, and Charles W. Edwards
promised to have the property forthcoming on the day of sale, or
that he would pay the money, and did do so on the 4th of June, 1849;
that he was the son of Catharine Edwards, lived with her, but was a
married man, and he, Charles W. Edwards, generally attended to his
mother's business with the witness. This was all the testimony on
the part of the plaintiff.
The defendant then introduced the record of the judgment on which
said execution issued, which shows that Charles W. Edwards was in
the original judgment, and that a forthcoming bond was given in
which he was left out. She then proved that the foundation of said
judgment was a note in which she and said Charles was security for
Lewis Presley. That Lewis Presley paid to C. W. Edwards the money to
pay on said judgment, except $85 or $100, and requested Charles to
pay that for him, witness, which Charles did, and shortly thereafter
witness paid it back to him. That witness was the brother of
Catharine, and uncle of Charles W. Edwards. That he never knew of
any authority given by Catharine to Charles to borrow money. This
was the substance of all the testimony. The jury found a verdict for
the plaintiff. Defendant made a motion for a new trial, which was
overruled. Whereupon she prayed and obtained a writ of error to this
court.
Lawson for appellant.
*2 The defendant in error became the surety, as he says, of Charles
W. Edwards, and as such paid the debt. If the money ever went to the
use of Catharine Edwards, and that was the object for which it was
borrowed, that does not raise an implied assumpsit on her part to
pay it to defendant in error in consequence of his being security
for Charles, and as such having paid it. There was no privity
between the defendant and plaintiff in error. He did not become her
security, and has no right at law to recover from her. To enable the
defendant in error to recover, the money must have been paid at her
request, either express or implied, supposing the debt for which he
was security to be hers. There is no pretence that there was any
express request. Then does the law, under the circumstances, imply a
request to pay? 1 Smith's Leading Cases, 1852, for all the
authorities, p. 196, 197, notes to Lampleig v. Brathwait. The law
implies a request. First, where the consideration consists in the
defendant in error having been compelled to do that which the
plaintiff in error was legally compellable to do. 3 Term R. 308.
Catharine Edwards was not legally compellable to pay, and hence,
under the above rule, is not responsible to pay defendant. The law
will imply a request also where one party does that voluntarily for
another which the first was compellable by law to perform, and he
expressly promises, in consideration thereof, to pay the second. In
such case the law does not imply the promise, but only the request.
An express promise is not averred in this case, and even if such a
promise was averred, the debt for which defendant was security not
being the debt of plaintiff, if he paid it as security, even by the
request and upon an express promise, the plaintiff in error would
not be liable under the statute of frauds, unless the promise were
in writing.
No counsel for appellee.
Mr. Justice FISHER delivered the opinion of the court.
This action was brought by the defendant in error in the circuit
court of Neshoba county to recover of the plaintiff in error a
certain sum of money, which the plaintiff in error alleges he paid
as her security on a promissory note for one hundred dollars,
payable to one Backstrow.
A judgment was rendered in favor of the plaintiff below, from which
the plaintiff in error has prosecuted a writ of error to this court.
We are clearly of opinion that the evidence establishes no cause of
action against the plaintiff in error. She was no party to the note
to Backstrow. The plaintiff in error signed the note as the security
of Charles W. Edwards, trusting alone to him for indemnity if he
failed to pay the debt. There is no proof showing that Charles W.
Edwards used the money obtained for the benefit of the plaintiff in
error, or that he was her agent to borrow the money. But be this as
it may, she was not the party trusted in the transaction, and
therefore not liable to the plaintiff below.
*3 Judgment reversed, new trial granted, and cause remanded.
5 Cushm. 302, 27 Miss. 302, 1854 WL 3540 (Miss.Err. & App.)
End of case ------------
High Court of Errors and Appeals of Mississippi.
LEWIS PRESLEY
v.
JOSEPH S. RODGERS.
October Term, 1852.
The deed of trust which conveyed the slaves levied on, having been
executed in another State, and never recorded in this State; held,
that the rights of any party claiming under it are not prejudiced
because of a failure to record it.
It has been heretofore decided that deeds of trust executed in other
States are not embraced in the recording act of 1822, (Hutch. Code,
605,) and that a failure to record the same in this State, after a
removal of the property into it, does not impair their validity even
against bona fide purchasers and creditors without notice of their
existence. Palmer v. Cross et al. 1 S. & M. 48; Dobbs v. Prewitt, 13
Ib. 431, cited and confirmed.
The legal title to the slaves conveyed by the deed of trust was
vested in the trustees, and the interest which the wife took under
the deed was entirely equitable, and the enjoyment of it by her was
postponed until the death of the husband.
So soon as the husband died, the wife's right to the use and benefit
of the property commenced, and this gave her a right to the
enjoyment, possession, and control of the slaves during her life;
but this was an equitable right, which she could only enforce in a
court of equity.
The legal title in the slaves still remained in the trustees for the
purpose of enabling them to execute the trust imposed on them.
Our statute (Hutch. Code, p. 610, § 29,) declares that estates of
every kind, holden or possessed in trust, shall be subject to like
debts, liabilities, &c., as they would have been subject to if those
persons had owned the like interest in the things so holden as they
own or shall own in the uses or trusts thereof; and this court has
held in similar cases, where real and personal estate was involved,
that the trust estates the statute was intended to operate upon are
those in which the trustee has nothing but the naked, dry, legal
title, with the whole beneficial interest in the cestui que trust.
Boarman v. Catlett, 13 S. & M. 151; Ib. 103, cited and confirmed.
The courts of England, in giving a construction to the statute of
frauds of 29 Car. 2, ch. 3, which is very similar in its provisions
on the subject of the sale of trust estates to our own, have held
that it only applied to bare and simple trusts, not of a complicated
nature; and this being the correct construction of our statute on
this subject, held, that Mrs. E. did not have such an interest in
the slaves as could be subjected to the payment of her debts by
proceedings at law.
The legal title to the slaves is in the trustees for her use, and
the parties entitled to them in remainder. Held, that the trust
estate is not therefore a naked, dry, legal title in the trustees,
in which the sole beneficial interest was in the debtor (Mrs. E.),
but is a trust in which the rights and interests of others are mixed
up with the debtor's title.
The creditor, from the manner in which the property is conveyed,
should seek the aid of a court of equity to subject it to his debt,
where remainder-men can be effectually protected.
The legal title being in the trustees, Mrs. E. has only an equitable
right therein. Held, the instruction given by the court below, that
the property was liable for the debt, was error.
West Headnotes
When a deed of trust was executed in one state, not recording in
another does not prejudice the rights of the party claiming under it
in the latter; for deeds thus executed are not within the recording
acts of 1822.
The equitable estate of the cestui que trust is subject to execution
at law, when the sole beneficial interest is in him, but not when
the rights of others are mixed up with his title.
*1 IN error from the circuit court of Neshoba county; Hon. John
Watts, judge.
This was an action for the trial of the right of property in the
circuit court of Neshoba county, upon a judgment on attachment
issued by Rodgers against Catharine Edwards, which was levied on a
certain negro named Dock. Presley, as trustee, filed an affidavit
and gave bond to try the right of property in the negro; and to
sustain his claim to the negro, he introduced and read in evidence
to the jury a deed of Edward Edwards to Charles and Lewis Presley,
for the negro in controversy, conveyed in trust for the use and
benefit of Catharine Presley, during her natural life, and should
she have children by her contemplated marriage, then to such issue
forever; but upon failure of such issue, then the slave was to go to
the children of E. by a former marriage. The deed bears date the 9th
of August, 1820, in South Carolina, where the parties lived at the
time it was executed, and was regularly recorded in that State; and
it seems the deed was recorded in Neshoba county, Mississippi, on
the 22d of December, 1845. Presley then proved the death of his
co-trustee before the suit was instituted, and that Charles Edwards
was the only issue who died before the suit was brought.
The defendant (Rodgers) proved that Catharine Edwards was in
possession of said negro at the time of the levy on the negro, and
had been in the possession of Catharine Edwards for five years
before judgment was rendered against her, and that E. Edwards died
in 1821. The defendant asked the court to charge the jury that said
negro was subject to said levy and sale as the property of C.
Edwards, if they believed the foregoing facts, which was given by
the court. The jury found for Rodgers, and Presley took out this
writ of error.
W. E. Pugh, for appellant.
This marriage settlement was entered into in 1820, before the
passage of our statute of uses. Hence that statute cannot affect, or
control it. It was also executed before the passage of our statute
of 1822 passed, to prevent perjury and fraud; and, therefore, falls
within the rule laid down by this court in the case of Palmer v.
Cross, 1 S. & M. 48. The interest of Mrs. Edwards was only an equity
for life, which is not the subject of levy and sale at law. Goodwin
v. Anderson, 5 S. & M. 730.
The interest of Charles W. Edwards was only a contingent equity, to
vest on the death of his mother, provided he was living at her
death; but, having died in the lifetime of his mother, he took
nothing by the deed. The proper construction of this deed is, Should
Mrs. Edwards die leaving issue by the marriage, then this property
was to vest in that issue absolutely. On the contrary, it was to
belong absolutely, at the death of Mrs. Edwards, to the children of
the grantor by a former marriage. The word then, used twice in this
deed, can refer only to the death of Mrs. Edwards, for place any
other construction on it, and you thereby defeat the first object of
the deed, to wit, the lifetime interest of Catharine Edwards. The
whole interest being in her, or rather in Presley for her use for
her life, no other interest could spring out of it until that life
estate had ended. Clark v. McCleary, 12 S. & M. 347.
*2 The possession of Mrs. Edwards was not adverse to the possession
of Mr. Presley, the trustee. Her possession was his. It was within
the intent and meaning of the deed, that she should enjoy the use of
the property, and its possession.
There is no proof, or even an attempt to prove, that she ever
claimed these negroes as hers, or against the trustee. Hence our
statute of 1822 to prevent perjury and fraud, does not apply.
For these reasons the charge of the judge below was wrong, and the
judgment should be reversed.
Wharton, Guion & Baine, on the same side, filed no brief.
Enloe & Baldwin, for appellee, filed no brief in the record.
Mr. Justice YERGER delivered the opinion of the court.
The defendant in error commenced suit in the circuit court of
Neshoba county, by attachment, against Catharine Edwards. The
attachment was levied upon three slaves, which were claimed by the
plaintiff in error; and an issue to try the right of property was
made up, and resulted in a verdict and judgment against the
claimant.
From the evidence, it appears that the claimant founded his title on
a deed of trust made and duly recorded in the State of South
Carolina, in the year 1820, by Edward Edwards. By this deed,
Edwards, who was about to enter into a marriage with Catharine, the
daughter of Charles Presley, conveyed to Charles Presley, who has
since died, and to Lewis Presley, the claimant, certain slaves, "in
trust for the use, benefit, and behoof of the said Catharine
Presley, during her natural life; and should she have issue by the
contemplated marriage, then to such issue for ever." In default of
such issue, the slaves were to go to the children of the grantor by
a former marriage. The grantor reserved by the deed, during his
life, "the possession of the slaves, and all the profits and
emoluments of the slaves."
The marriage was consummated, and the sole issue of it was a son,
Charles W. Edwards, who died before the slaves were seized by virtue
of the attachment. Edward Edwards, the grantor, died in South
Carolina in 1821, and Catharine, the widow, removed to Mississippi
with the slaves named in the deed, and had them in her possession
when the attachment was levied upon them. They had been in her
possession, in the State of Mississippi, five years before the levy,
and the deed of trust had not been recorded therein.
The record contains no evidence, whether or not Charles W. Edwards
at his decease left any children, or whether he died intestate. It
is also equally silent, whether he left any brother or sister of the
half blood, who, under certain circumstances, were to become
entitled to the slaves named in the deed of trust.
As the deed of trust was executed in South Carolina, the fact that
it was not recorded in the State of Mississippi does not prejudice
the rights of any party claiming under it. It has been heretofore
decided, that deeds of trust executed in other States are not
embraced in the recording acts of 1822, Hutch. Code, 605; and that
the failure to record the same in this State, after a removal of the
property into it, does not impair their validity, even against bona
fide purchasers and creditors without notice of its existence.
Palmer v. Cross et al. 1 S. & M. 48; Dobbs v. Prewitt, 13 Ib. 431.
*3 This brings us to the consideration of the question, whether Mrs.
Edwards took under the deed an estate which was subject to an
execution at law.
By reference to the deed of trust, it will be seen that the legal
title was vested in the trustees. First. To permit the husband
during his life to retain possession, and to receive the profits.
Second. For the use of the wife during her life; and, thirdly, for
the use of such children as might be born of the contemplated
marriage.
The interest which the wife took under the deed was entirely
equitable, and the enjoyment of it by her was postponed until the
death of her husband.
Immediately upon his death, her right to the use and benefit of the
property commenced; and this gave her a right to the possession,
direction, and control of the slaves during her life. But this was a
right purely equitable, and which she could only enforce in a court
of chancery. The legal title still remained in the trustees, for the
purpose of enabling them to execute the trusts imposed on them.
Our statute of 13 June, 1822, Hutch. Code, 610, sec. 29, declares
that "estates of every kind, holden or possessed in trust, shall be
subject to like debts and charges of the person to whose use or to
whose benefit they were or shall be respectively holden or
possessed, as they would have been subject to, if those persons had
owned the like interest in the things holden or possessed as they
own or shall own in the uses or trusts thereof."
This court has decided in several cases, in which the title to both
real and personal property was involved, that the trust estates the
statute was intended to operate upon are those in which the trustee
"has nothing but the naked, dry, legal title, with the whole
beneficial interest in the cestui que trust." Boarman v. Catlett, 13
S. & M. 151; Wolf v. Dowell, Ib. 103. The English courts giving a
construction to the statute of frauds, 29 Car. 2, ch. 3, which is
very similar in its provisions on the subject of the sale of trust
estates to our own, have held, that it only applied "to bare and
simple trusts, not of a complicated nature, and where the interests
of no other party were mixed up with the debtor's title." Lewin on
Trusts, 547.
Recognizing the above as the true construction of our statute on
this subject, we are of opinion, that Mrs. Edwards did not have such
an interest in the slaves as could be subjected to the payment of
her debts by proceedings at law. The legal title to them is in the
trustee, for her use, and also for the use of those parties entitled
to them in remainder. The trust estate is not, therefore, a naked,
dry, legal title in the trustee, in which the sole beneficial
interest is in the debtor. It is not a bare and simple trust, not
complicated in its nature, but is a trust in which the rights and
interests of others are mixed up with the debtor's title.
*4 The nature of the property conveyed by the deed, and of the
interests held under it, renders this a case peculiarly fit for the
enforcement of the rule, that a creditor shall seek the aid of a
court of equity to subject it to his debt. That court is the only
forum in which full and equal justice can be done to all parties,
and in which the interests of the remainder-man can be fully and
effectually protected. It is clear, that his interests may be
seriously impaired in a sale of the slaves by execution at law,
where no security can be required for their forthcoming, on the
termination of the particular estate.
The fact that Charles W. Edwards, the sole issue of the marriage,
died before the attachment was levied, does not, on the facts
presented by this record, vary the rule which should govern this
case.
It is true, that on his birth he became entitled to an estate in
remainder, which was then vested in interest, though not in
possession, and which estate, in the absence of a bequest, has
descended to his next of kin. But on this record there is no
evidence whether he died intestate or not; nor whether he left
children, or brothers or sisters of the half blood; and we,
therefore, cannot say in whom his title to the property vested on
his decease. If it should turn out in proof, that the mother is
entitled, either as legatee or as next of kin and distributee, she
would then be seized of the whole beneficial interest in the
property, and might then have such an interest as would be subject
to execution at law. But on this point we express no opinion,
because the facts in the record do not properly present it for
consideration.
Inasmuch as the legal title to the slaves is in the trustee, and
Mrs. Edwards has only an equitable right therein, the instruction
given by the circuit judge, that the property was subject to the
attachment of the plaintiff, was erroneous. The judgment must,
therefore, be reversed, and the cause remanded.
2 Cushm. 520, 24 Miss. 520, 1852 WL 1936 (Miss.Err. & App.), 2 Cush.
520
End of case ------------
High Court of Errors and Appeals of Mississippi.
HENRY C. ROBINSON
v.
ALEXANDER SANDERS.
October Term, 1852.
An overseer's contract for wages is not an entire contract; and if
he be turned off for misconduct, he may recover for the time he
conducted himself well. Harison v. Sale, 6 S. & M. 634, cited and
confirmed.
An overseer's contract for wages for a year is not an entire
contract.
Where one who has employed another for a definite time at a salary
discharges the employee before the expiration of the time for a good
cause, he is responsible to the employee for his services up to the
time of his discharge.
*1 IN error from the circuit court of Neshoba county; Hon. John
Watts, judge.
The facts are contained in the opinion of the court.
Slaughter & Comfort, for appellant.
J. Enloe, for appellee.
Mr. Justice FISHER delivered the opinion of the court.
The plaintiff below agreed to oversee for the defendant during the
year 1850, for $165. About the last of August, the parties
disagreeing, the plaintiff was discharged; whereupon he brought his
action in the circuit court of Neshoba county, to recover wages for
the time he had attended to defendant's business, at the rate of
$165 per annum.
The court instructed the jury, "that an overseer's contract for
wages is not an entire contract; and that although an overseer may
be turned off for misconduct, he may, notwithstanding, recover for
the time he conducted himself well."
This instruction falls within the rule laid down by this court, in
the case of Harison v. Sale, 6 S. & M. 634, and was, therefore,
correct.
Judgment affirmed.
2 Cushm. 391, 24 Miss. 391, 1852 WL 2028 (Miss.Err. & App.)
End of case ------------
High Court of Errors and Appeals of Mississippi.
LEWIS PRESLEY
v.
THOMAS STRIBLING;
SAME
v.
HOLLOWAY E. SIMMONS.
October Term, 1852.
A court of equity would maintain the cestui que trust in the
possession and use of the property against the claim of the trustee;
yet a court of law, looking only at the legal title, could not
notice this right, and therefore cannot enforce it.
Where slaves are conveyed in trust for the benefit of a married
woman during her life, and, should she have issue by the
contemplated marriage, then to such issue forever, she does not have
such interest in the slaves as can be subjected to the payment of
her debts by proceedings at law, as the legal title to them is in
the trustee for her use and for the use of those entitled to the
remainder.
*1 IN error from the circuit court of Neshoba county; Hon. John
Watts, judge.
The facts are contained in the opinion of the court, and the
preceding case.
Wharton, Guion & Baine, for appellant.
W. E. Pugh, on the same side.
Enloe & Baldwin, for appellee.
Mr. Justice YERGER delivered the opinion of the court.
These two cases are similar in all respects to the case of Presley
v. Rogers, with the exception, that these are actions of replevin
brought by the trustee, and that was a suit under the statute to try
the right of property.
At first we were inclined to think, inasmuch as the plaintiff in the
action of replevin must have the right of immediate possession, that
we should be compelled to affirm the judgment in these cases, and
leave the trustee to pursue his rights in a court of equity. On
further reflection we think, that although a court of equity would
maintain Mrs. Edwards in the possession and use of the property
against the claim of the trustee; yet a court of law, looking only
at the legal title, could not notice this right, and, therefore,
could not enforce it. The same judgment must, therefore, be entered
in these two cases as in Presley v. Rogers.
Judgment reversed, and cause remanded.
2 Cushm. 527, 24 Miss. 527, 1852 WL 3193 (Miss.Err. & App.)
End of case ------------
High Court of Errors and Appeals of Mississippi.
JOHN J. HUMPHRIES
v.
NEILL BARTEE.
January Term, 1848.
A judgment obtained by fraud and collusion, between one not a party
to the record and the defendant, predicated upon a forged note of
the defendant to the apparent plaintiff, who is a real person, but
does not participate in the fraud, is fraudulent, and a nullity and
all proceedings under it are of the same character.
T., being indebted to B. for borrowed money, conveyed certain
slaves, by absolute bill of sale, to B., to secure the debt; these
slaves were afterwards sold at public auction, by agreement between
T. and B., and bought by B.; afterwards by collusion between H. and
T., a judgment for a large sum was obtained in favor of one R., who
was a non-resident, against T., in a different county from that of
T.'s residence, upon a forged note of T.'s, for a debt not owing,
and the suit brought without the knowledge of R.; H. pretending to
be the assignee of this judgment, levied an execution on the slaves
in the hands of B., who gave bond to try the right of property. On
the trial, T., being admitted as a witness, testified, that the sale
of the slaves to B., was fraudulent, upon which the jury found the
slaves subject to the execution against T.; and they were sold under
it, and bought by H; B., afterwards finding that the judgment under
which H. claimed, was fraudulent, and that the whole proceeding had
been conducted by fraud and collusion between H. and T., filed his
bill to vacate the sale of the slaves to H.; held, these facts being
made apparent, that the original judgment was void, and the
proceedings under it void, and no title passed to H. by the sale
under it.
The rule that holds a party to strict vigilance, when he resorts to
equity for relief against a judgment at law, the defence to which
was purely legal, is fully complied with in a case where the party
seeking relief against a sale of property claimed by him, shows that
the sale was made under a judgment to which he was not a party,
which judgment, he alleges, was obtained by fraud, of which fact he
had no knowledge at the time his property was held subject to an
execution on it; the plaintiff in which judgment, was a nonresident,
who had lately changed his residence, and had no interest in, or
knowledge of, the fraudulent judgment rendered in his name, and the
party seeking the relief had no knowledge of these facts, until he
filed his bill.
Where one is about to be affected by a judgment to which he is not a
party, his proper remedy for avoiding it is in chancery; he may
there show, that the judgment was recovered by fraud.
No relief can be had against a void contract, when a judgment has
been rendered thereon at law, where the defence ought to have been
made; you cannot go behind the judgment; it is otherwise however, if
the judgment itself be void for fraud in its rendition.
Nor can a judgment, void for fraud, on which an execution has been
issued and levied, and the property levied on, claimed by a third
party, and, on a trial of the right, declared subject thereto, be
made valid by the failure of the claimant at the time he set up the
void character of the judgment; the rule which holds the party to
vigilance in making his defence at law, does not apply to such a
case; for want of vigilance on his part, could not make the void
judgment valid.
Where slaves were conveyed by an absolute bill of sale to the
vendee, but in reality, merely as a mortgage, to secure a debt due
by the vendor, and judgments are subsequently rendered against the
vendor, and the vendee seeks relief in equity against executions on
these judgments, the proper remedy is, to decree a sale of the
slaves, and order the proceeds to be appropriated first to the
satisfaction of the mortgage-money, the amount of which is to be
ascertained by an account; and, second, to the payment of the
judgments, in the order of their priority, excluding such judgments
as are not recorded in the proper county, according to the statute;
if he desire it, the vendee may redeem from judgment creditors of
the vendor.
An absolute bill of sale, designed however between the parties as a
mortgage, if delivery of the thing sold accompany the bill of sale,
need not be recorded to be valid as against subsequent judgment
creditors of the vendor. A court of equity, in treating it as a
mortgage, will protect the rights of the vendee; the possession by
the vendee, was equivalent to notice by registration, even if it had
been competent to record an absolute bill of sale.
An absolute bill of sale, accompanied by delivery, though intended
as a mortgage, need not be filed, as against subsequent judgment
creditors of the seller.
An absolute bill of sale of slaves, accompanied by delivery,
although intended by the parties as a mortgage, need not be recorded
in order to entitle the vendee to the benefit of it, as against
subsequent judgment creditors of the vendor.
Where an absolute bill of sale is intended as a mortgage, and
judgments are subsequently rendered against the vendor, a court of
equity will decree a sale of the property, and, after discharging
the vendee's claim, apply the proceeds to the satisfaction of the
judgments, or allow the vendee to redeem the mortgages.
The rule which precludes a party from asking equitable relief
against a judgment, for want of vigilance on his part in making a
defense at law, does not apply where the judgment is void for fraud.
A judgment recovered on a forged note of the defendant, made payable
to the plaintiff, without the knowledge of the apparent plaintiff,
by fraud and collusion between the defendant and a third person, is
a nullity, and a stranger affected by such fraudulent judgment, who
was ignorant of the facts which render it void until after its
rendition, may obtain relief against it in equity.
*1 APPEAL from the vice-chancery court at Columbus; Hon. Henry
Dickinson, vice-chancellor.
Neill Bartee alleges in his bill, in substance, that on the 21st of
February, 1839, he loaned Samuel W. Turner $1500, to pay off certain
judgments against him with, and took his note, bearing ten per cent.
interest for loaned money, secured by a deed of trust to Pascal B.
Wade, on two houses in Columbus. On the 7th of May, 1840, Turner
conveyed the slaves Ben, Nancy, Kitty, Esther, and Peggy, to Bartee,
by an absolute bill of sale, but intended to secure payment of the
same and other money. The consideration expressed was $2700; as soon
as this was paid by Turner the bill of sale was to be void, though
absolute on its face. The slaves were delivered by Turner to Bartee.
At the time this bill of sale was made, Turner was indebted to R. S.
Blount, in the sum of $266, secured by a deed of trust on the slave
Kitty, executed in August, 1838; at the request of Turner, Bartee
paid this debt, and took an assignment of it and the deed of trust.
Besides this sum Bartee paid at different times, before the bill of
sale was made, about $811 for Turner; he files his bill of items.
The bill further proceeds to detail the history of the two houses
conveyed by the deed of trust, and gives an account of their rents,
&c., which is not material to the merits of the main controversy.
These lots were sold in March, 1842, by the trustee, and bought by
Bartee, for $100, but were afterwards resold by the sheriff, under
an execution in favor of Owen against Turner, for $62, rendered 9th
April, 1839.
At this time, by an agreement between Turner and Bartee, the slaves
were also sold at public auction, except Nancy, who had died. They
were sold at the court-house for a full price, and brought $1500;
they were all bought by Bartee; but no credit was made then, or
subsequently, on Turner's indebtedness to Bartee, nor could he then,
or at any time, procure a settlement with Turner, who had then
formed the design to defraud Bartee.
Turner put into Bartee's hands certain notes for collection, out of
which he had made some small sums stated, for which he was
chargeable.
In the summer of 1842 these slaves, except Ann, were levied on under
an execution purporting to be on a judgment rendered on the 6th of
March, 1841, in favor of David Reinhardt against Turner, for the sum
of $5383.06, rendered in Lowndes county. Bartee claimed the slaves,
gave bond, and an issue to try the right of property was made up to
the October term, 1842, of the circuit court. On the trial Turner
was allowed to testify. He stated that he was not interested in the
event of the suit; that the arrangement between Bartee and himself
was entered into for the purpose of defrauding Turner's creditors;
and upon his evidence the jury found the slaves subject to the
execution.
A suit was also brought against Bartee for the lots, and upon
Turner's evidence he lost that suit also. But the bill seeks no
redress for the lots.
*2 That Turner early conceived the design to defraud Bartee out of
his money and securities; and to that end sought confederates. He
found an ingenious, capable and ready one in Humphries; they held
frequent conferences at Humphries's and finally devised and executed
this scheme to accomplish their end. Turner made his writing
obligatory, by which he promised to pay one David Reinhardt $2300,
on the 1st of January, 1825, dated on the 21st of March, 1824. This
writing he gave to Humphries to collect, as an attorney at law.
Humphries afterwards pretended that he had bought it on the judgment
afterwards rendered on it, from his client, and paid for it in land.
Suit was brought to October term, 1841, in Lowndes county, though
Turner lived in Octibbeha county; judgment by default was rendered,
execution issued, and the trial of the right of property had as
stated. That Turner could not identify Reinhardt as his creditor,
nor show his residence, or the dealings which led to his
indebtedness, and formed the consideration of the bond; nor could
Humphries tell who left with him the bond, identify his client, show
how he bought the bond, to whom he gave the land, nor what land.
That Turner, in a quarter where he had not expected exposure, had
boasted of his success in this scheme of frauds; had said he had
part of the property fixed, meaning the lots, would soon have the
other part, meaning the slaves; and after a while he would get the
property or its proceeds turned over to his boys.
After the verdict on the trial of the right of property, an
execution issued on the Reinhardt judgment, and the slaves were
taken into custody by the sheriff, when the following executions
were issued, and levied on the slaves, to wit: one in favor of
Wright and others against Turner, for $169.32, rendered December 13,
1839; one in favor of James Owens against Turner, for $62, of the
9th April, 1839; one in favor of Alexander Gray against Turner, for
$1444, rendered on the 28th of May, 1839; and one in favor of
Charles M. Rogers, for $193.63, of December 31, 1839; all these
executions but those of Gray, which was the property of Bartee, were
issued by the procurement of Humphries, to enable him to carry out
his scheme of fraud. That before the slaves were sold under these
executions, Humphries had an alias execution on the Reinhardt
judgment issued, and, on the day of sale, in order to deter bidders,
proclaimed that, as soon as the sale was over, he would seize and
sell the slaves again under that judgment, to which they had been
declared liable; in consequence of which the slaves only brought
$735, about half their value, and were bought by Humphries. That,
emboldened by his success, Humphries had directed a writ of
garnishment on this judgment against Bartee, as a debtor of Turner;
and on Bartee's answer that he owed nothing, had taken an issue,
which was yet pending. The slaves were yet in Humphries's
possession, nor had he paid anything, having agreed with the sheriff
to pay the money to such executions as the circuit court of Lowndes
should direct, and no direction had yet been made.
*3 The bill attacks the validity of the various executions under
which the sale of the slaves took place, states that Humphries,
"before he embarked in the Reinhardt speculation," knew of the loan
of money by Bartee, and the nature of his title, and insists that if
any of the executions under which the sale took place are valid,
Bartee should be allowed to redeem them. The prayer was for
injunction and general relief.
Turner denied in his answer that the object of his bill of sale to
Bartee, and also of the subsequent public sale, was to secure the
debt he owed him; but says, it was made to put his property out of
the reach of his creditors and to defraud them, especially those who
had claims against him as a member of an unincorporated banking
company. He denies his indebtedness to Bartee, to the extent set up
in the bill; denies the fraudulent combination with Humphries, and
says, "that the graphic statements in the bill about the fictitious
hero, Reinhardt, is all a humbug, and without the shadow of a
foundation;" and adds, "see how a plain tale of truth will put this
scare-crow to flight." He proceeds to detail the mode in which he
became indebted to Reinhardt for goods purchased of him, while
Reinhardt lived in Alabama. It is not deemed necessary to set out at
greater length this part of the answer. He admits, that the body and
signature of the note are in his hand-writing; that he has no
interest in Humphries's proceedings or the judgment of Reinhardt. He
admits the statements attributed to him by the bill, but says they
were made for Bartee's ear, "to punish him for his base treachery,"
and were merely expressions of his rejoicing at the writhings and
mournings of the miser defeated."
At this late time he could not remember any other particulars
connected with the Reinhardt note; he did not defend the suit,
because he had no motive, being irretrievably ruined, and Bartee
having all his property.
Humphries's answer admits the loan by Bartee to Turner of the
fifteen hundred dollars, and of the bill of sale, but insists that
one of the objects of the latter was to defraud Turner's creditors.
He dwelt at length on the fraudulent nature of the dealings between
Bartee and Turner, both as to the matters mentioned in the bill and
other matters; and also denies at length the correctness of Bartee's
claims against Turner, and sets out his own views as to what was
due.
He admits the delivery of the slaves to Bartee, but insists that it
was merely a cover to avoid impending suits against Turner, and that
the consideration expressed in the bill of sale was for a far
greater amount than was due to Bartee, and was so inserted
fraudulently. He states and insists that the public sale was also a
mere sham sale; Bartee paid nothing, credited nothing, and only
intended to further defraud Turner's creditors; that the sale was
void for not being by order of court.
*4 The rendition of the judgment in favor of Reinhardt, the
execution, the trial of right of property, the testimony of Turner,
and the verdict are admitted, and it insists that this verdict
estops Bartee from further inquiry as to the ownership in the
slaves. It is claimed to be conclusive.
He denies the charges of collusion and confederacy with Turner, and
all fraud as to the Reinhardt judgment; says he believes the note on
which it is founded genuine, and executed when it purports to have
been; it was sent to him by mail for collection, as an attorney at
law, by one who styled himself, in his letter, Jeremiah C.
Billingsley, and so far as known to him, Billingsley claimed to be
the owner, and he receipted to him for it as such; the letter
enclosing it was dated at Memphis, Tenn. early in 1841, and it
informed him, as Turner was under the weather, the writer would have
an agent in Columbus to do the best he could with it; that he has
been informed that Billingsley lived in North Carolina. In due time
a man by the name of Runnels, who held his receipt, and reported
himself as the agent of Billingsley, came to Columbus, and finding
out Turner's situation, traded the claim to respondent for the
aggregate amount of two thousand acres of unimproved land in Neshoba
county, for which he executed and delivered a deed in the name of
Billingsley. He sued on the note in Lowndes because the property and
witnesses were there. He believes the consideration of the note
valid between Reinhardt and Turner; knows nothing of Reinhardt's
present residence; he once lived in Lincoln county, North Carolina.
Humphries also proceeds to answer, at length, the allegations of the
bill touching the sale of the slaves to which he became the
purchaser; gives the history of each execution; insists the sale was
by agreement with Bartee, who claimed to own one of the judgments
under which the sale was made, and who was present at the sale and
bid on the property, and is thereby concluded from attacking the
sale as fraudulent.
Reinhardt's answer was subsequently filed. He says, he is an entire
stranger to the matters and things set forth in complainant's bill,
between complainant, Humphries and Turner, and can say nothing in
relation thereto; he knows nothing of the judgment in his favor;
Turner never owed him the money; and never gave him any such
obligation as that stated in the bill on which the judgment is
founded. He lived in Lincoln, North Carolina, in 1822, 1823, 1824
and 1825; was a merchant.
His deposition, subsequently taken, stated that he moved to Florida
in 1842; for fifty years previously, had lived in Lincoln county, N.
C.; he knew Turner in North Carolina, had some small dealings with
him, he was a journeyman saddler; on cross examination, he says his
brother-in-law took some saddles to Alabama, does not know that
Turner obtained them.
Bartee filed an amended bill, stating that he did not know of the
fraudulent character of the Reinhardt judgment until after the trial
of the right of property, nor did he know of Reinhardt's residence
until his bill was filed.
*5 Hezekiah W. Goode testified, that about the month of August,
1840, at the house of Turner, in Octibbeha county, he heard Turner
say, that he let Bartee have a lot of negroes for the purpose of
securing a loan of fifteen hundred dollars; but he intended to
arrest the property out of Bartee's hands by law, and did not intend
to pay a single dollar of it; that he had a plan with others, to law
the property out of Bartee; that he would not be known in the
transaction, but would be the only witness, and when the property
was recovered, would share half of it; since 1840, he had heard
Turner say, he had gained a part of the property agreeably to his
plan, and at next court would gain the rest. He did not know Bartee.
Various depositions were taken to establish similar declarations by
Turner, and the indebtedness to Bartee, and the other matters set up
on either side in the pleadings; but it is not deemed requisite to
set them out.
Vardy McBee, whose deposition was taken in North Carolina, proved,
that he was the brother-in-law of Reinhardt, knew Turner in North
Carolina, well; he had worked for him in his saddlery store; it was
impossible for Turner to have traded with Reinhardt for so large a
sum; the witness gives the history of Turner's life and dealings in
North Carolina at length, and shews that from his condition in life,
means, occupation and the witness's personal knowledge of Turner's
character and situation, he could not have dealt with Reinhardt, or
been trusted by him for any such sum.
Charles R. Crusoe testified, that he was the attorney who obtained
the judgment on the Reinhardt note; it was placed in his hands by
Humphries, who represented himself as the agent or attorney of
Reinhardt; he had no cause to suspect Reinhardt not to be the owner
until after the judgment, when Humphries wanted to give the sheriff
an indemnifying bond to levy the execution, when Humphries told him,
that he and some others had an interest in it.
Turner's deposition was also taken; among much other matter he
testified, that he knew nothing about the consideration of the
Reinhardt note; his impression was, he never executed it.
Several witnesses testified, that from the general character of
Turner for veracity, they would not believe him upon his oath.
Depositions were also taken with reference to the sale by the
sheriff; the agreement with Humphries and the sheriff as to the
payment of the money.
The cause was referred to a commission of the court, to report the
amounts due on the different judgments against Turner; and due by
Humphries for the hire of the negroes since 1843. The report was
made accordingly; and found that Humphries was indebted in the sum
of $520.
The vice-chancellor, on final hearing, confirmed the report, and
ordered that Bartee pay to the sheriff of Lowndes county, the sum
found due by the commissioner on the different judgments, which was
$576.56; and that thereupon, the sheriff deliver to Bartee the
slaves in controversy; it was further decreed, that Bartee recover
of Humphries, the sum of $520, and have execution therefor; and
recover of Turner and Humphries his costs.
*6 Humphries prayed an appeal; and subsequently, Bartee a cross
appeal; upon which the cause was argued in this court.
R. Evans, for Bartee,
Reviewed the facts and points involved in an argument of thirty
pages in length. He contended, 1. That the answer of Humphries was
in itself incredible in the account he gives of his connection with
the matter, and clearly established his guilty collusion with
Turner.
2. That the proof of fraud on the part of Turner and Humphries,
developed by all the facts, and especially by Turner's false
swearing and general conduct in the course of the plot, was
perfectly overwhelming, and left nothing for the court to do but to
make restitution to Bartee.
3. That the whole record refuted the charge set up in Humphries's
answer of the fraud between Bartee and Turner; it rested alone on
the statement of Turner; and it was plain that Bartee was to be the
victim of Humphries's and Turner's fraud; but if Bartee had
defrauded Turner, it would be no answer in Humphries's mouth to the
fraud he had committed on Bartee; however Bartee may have defrauded
Turner, it could be no shield to Humphries's fraud on Bartee.
4. The various executions levied on the slaves at the instance of
Humphries, to shield his pretended right, derived under the
fraudulent trial of the right of property, can none of them avail to
disturb Bartee's right to the slaves. On this point, Mr. Evans
examined each execution separately, and insisted that they were,
under the facts of each, ineffectual to bar Bartee's rights.
5. That Bartee really made a bona fide loan of the fifteen hundred
dollars to Turner, and in all their subsequent dealings had acted
with integrity and probity. The dealings between Bartee and Turner
were scrutinized at great length.
6. That the bill of sale from Turner to Bartee, though absolute on
its face, yet intended merely as a mortgage, was not therefore void.
It was no evidence, or presumption even of fraud, and it could be
shown by parol that it was a mortgage. Whittick v. Kane, 1 Paige,
202; Slee v. Manhattan Company, Ibid. 77; 3 Dana, 176, 252; 2 Cow.
330.
7. The insertion of the consideration of $2700 in the bill of sale
was no evidence of fraud. The actual consideration may always be
proved. 2 Phil. Ev. (Cow. & Hill's ed.) 217; 3 Ib. 1441, n. 964; 4
N. H. 229; 1 J. J. Marsh. 388.
8. Even if the subsequent deed to Bartee were fraudulent, it would
not make the bill of sale fraudulent; yet there was no proof Bartee
accepted that subsequent deed, and without that it was no deed.
Jackson, ex dem. Eames v. Phipps, 12 John. R. 418; McCrea v. Dunlap,
1 John. Cases, 116; Maynard v. Maynard, 10 Mass. 456; 3 Phil. Ev.
(Cow. & Hill.) 1283 - 1285, n. 888.
*7 9. There was no proof that the subsequent deed was fraudulent; or
if so, that any one but Turner shared in the fraud.
10. The charge in the answer of Humphries, that Bartee swore falsely
when he made oath to the ownership in these slaves, is unsupported;
for though he had title but as mortgagee, he was still the legal
owner. 2 Sto. Eq. 297, § 1031; 2 Kent Com. 582; 4 Ibid. 139; Brown
v. Bennett, 8 John. 96; 1 Pick. 389; Ferguson v. Lee, 9 Wend. 258;
Astor v. Hoyt, 5 Ibid. 617; Hart v. Ten Eyck, 2 John. Ch. 100.
11. The decree of the vice-chancellor was erroneous as to Bartee, in
making him pay off the bona fide judgment executions, which had been
levied on the slaves. Bartee's lien was older than that of the
judgments.
12. Bartee ought not to pay the costs; to exempt fraud from the
costs and punish the innocent, is an error which should be
corrected.
Baine, on same side.
1. All parties admit the validity of Bartee's loan of the fifteen
hundred dollars; no one even hints at fraud in it but Turner; and
the case shows that he was guilty of perjury in so doing.
2. Bartee's mortgage of May 11, 1839, by absolute bill of sale, is
no evidence of fraud; the mortgage could be shown by parol. James v.
Johnson, 6 John. Ch. R. 417.
3. The proof shows that there were at least $2754 due Bartee by
Turner, nearly double the original loan after allowing all credits.
4. The whole record establishes the fraudulent combination to
defraud Bartee; the Reinhardt judgment is a nullity; the trial of
the right of property under it void, and in no way affects Bartee's
rights.
5. Bartee's advances went to pay judgments against Turner; even if
Bartee contemplated a fraud, he will be protected to the extent of
the legal right conferred by the judgments he paid off; for if a
fraud was contemplated, it was absque injuria. 5 How. Mi. 687; 1 Sto.
Eq. 212; Freem. Ch. R. 343.
6. Even if Bartee designed defrauding, and did defraud Turner's
creditors, it could not be relieved against unless it militated
against an existing right. Humphries had no right whatever; he
claimed under fraudulent and void proceedings throughout.
7. It is plain from the proof that Bartee committed no fraud.
Mr. Chief Justice SHARKEY delivered the opinion of the court.
The object of the bill in this case was to vacate a sale of certain
slaves mentioned in the bill, of which respondent, who is appellant
in this court, was the purchaser at a sale made by the sheriff.
The record is very long, but a very brief summary of the important
facts will show the grounds on which the decision must rest.
On the 21st of February, 1839, Bartee loaned to one S. M. Turner the
sum of $1500, and took a deed of trust on two town lots as a
security. On the 11th of May following, Turner also conveyed to
Bartee the slaves in controversy, and received, as it is alleged,
other sums of money, and Bartee also agreed to pay a debt which was
secured by a prior deed of trust. The bill of sale of the slaves was
absolute on its face, though it is admitted to have been intended as
a mortgage. This conveyance was accompanied by possession, and was
intended as a further security for the original loan. Turner failed
to pay, and by his consent the slaves were sold at public sale, and
Bartee became the purchaser.
*8 On the 6th of October, 1841, a judgment was rendered against
Turner in favor of one David Reinhardt, for upwards of $5000, on a
writing obligatory dated as far back as the 21st of March, 1824,
payable the 1st of January, 1825. This suit was brought in Lowndes
county, although Turner resided in Octibbeha county, and the
judgment was taken by default. An execution issued on this judgment,
which was levied on the slaves in the hands of Bartee, who claimed
them as his property. An issue was made up to try the right, when
Turner was introduced as a witness, and on stating that he was
disinterested, was permitted to testify. He stated that the bill of
sale to Bartee was made to defraud creditors, and the jury found in
favor of the plaintiff in execution. The property was delivered up
and sold under the Reinhardt judgment, though prior to the sale
other executions had been placed in the hands of the sheriff.
Humphries purchased the slaves at about half their value. He claims
to be the assignee of the Reinhardt judgment. The note on which it
is founded, was sent to him by mail for collection by one
Billingsley, and he afterwards purchased the judgment from an
individual, who professed to be an agent of the person who had sent
the note for collection. This judgment constitutes the groundwork of
this whole proceeding. The bill alleges that it was recovered by
fraud and collusion between Turner and Humphries, on a note forged
for the purpose, with a view of taking the slaves from complainant.
Reinhardt is made a party to the bill, and his testimony was also
taken. He positively disclaims ownership of such a note, or
knowledge of the transaction, and says Turner never owed him that
amount of money. He it seems resided in Lincoln county, North
Carolina, at the date of the note, and had resided there many years,
both before and afterwards, but now lives in Florida. He had known
Turner when he was a young man, and had, as a merchant, some
dealings with him, but never to the extent of the note. In addition
to this testimony, Turner's declarations as to his purpose, were
also in proof. The scheme was no doubt concocted for the purpose
mentioned in the bill. This judgment is beyond all doubt fraudulent,
and it is enough to say of it that it is a nullity, and all the
proceedings under it are of the same character. No execution
predicated on it could operate to pass a title to Humphries, who
claims to be the owner of the judgment, and is, to say the least,
chargeable with notice of the fraudulent character of the
transaction.
In the answer of Humphries, the judgment on the trial of the right
of property is relied on as a bar to the relief sought. We have said
the original judgment was void for fraud. The subsequent proceeding
was equally so. When a court of equity is resorted to for the
purpose of letting the party into a defence which is, in its
character, triable at law, he will be held to strict vigilance. By
an amended bill it is alleged that complainant had not obtained
information as to the nature of the Reinhardt judgment, until after
the trial at law. In July, 1843, he received the first information
as to Reinhardt's residence, and his informant assured him that he
was satisfied, from his acquaintance with both Reinhardt and Turner,
that the latter could not have owed to the former any such debt. He
then opened a correspondence with Reinhardt, and did not become
fully informed on the subject until after he had filed the original
bill. The circumstances of this case are peculiar. A note was forged
bearing date nearly twenty years before the judgment was rendered on
it. It was payable to a stranger, who was a citizen of another
state, whose residence was likely to be unknown. But even if it
should be found out where he had lived, he had changed his residence
to a distant state. The great wonder is that the scheme was
discovered at all. Under the circumstances, it would be difficult to
say, what was or what was not proper vigilance.
*9 But this case differs from those in which the rule of vigilance
is usually applied. The complainant is affected by a judgment to
which he was not a party. His proper remedy for avoiding it was in
chancery. It is a subject over which chancery has original
jurisdiction. The complainant might have proceeded by bill for that
purpose, before the trial of the right of property. A stranger to a
judgment may always show that it was recovered by fraud. 1 Starkie's
Ev. 241; 1 Phillips's Ev. 341; 3 Ib. (C. & H.) 854. Has a court of
chancery lost its power to interpose? Surely not, when the judgment
is void. No relief can be had against a void contract, when the
defence ought to have been made at law; but if the judgment itself
be void, it is a different question. Hence, on gaming contracts,
chancery will give relief, because the judgment is void, although
the defence might have been made at law. If the contract be void,
and the party fails to make his defence at law, the judgment is
valid, and chancery will not interfere with it. But this judgment
was void by the common law, and also by statute. It derives no
validity from the failure to make the defence on the trial of the
right of property. The original judgment was relied on as binding
the property, but it was void, and may be set aside by a court of
chancery. 1 Story's Eq. 275, § 252. It is true that Bartee might
have pleaded, on the trial, of the right of property, that the
judgment was fraudulent. But his failure to do so, does not make it
valid. His want of vigilance has not imparted validity to the
judgment, and the rule therefore does not apply.
But there are other judgment-creditors, whose rights are not to be
overlooked. The bill of sale was made 11th of May, 1839. It was to
operate as a mortgage. There is no doubt about the loan of $1500;
that is admitted by all. The judgment in favor of Owens was rendered
9th of April, 1839, and is therefore a lien on all the negroes
except Kitty, she having been previously conveyed in trust to secure
a debt due to Blount. The other judgments were rendered after the
bill of sale, and could bind nothing but Turner's right to redeem.
The case must be remanded for an account, and the rights of the
parties will be regulated and allowed, according to the following
directions. Bartee alleges that he paid a debt to Blount, who held a
deed of trust on the woman Kitty, and took a transfer. If this be
so, it constitutes a prior lien on the property included in that
deed of trust, inasmuch as it bears date in August, 1838. By this
arrangement Bartee was substituted to the rights of Blount.
2. Bartee is entitled to be allowed the $1500, and the other sums
which he may prove to have been paid as a consideration for the
conveyance of the negroes. Humphries is also to account for hire for
the time he has had the negroes in possession, and Bartee is of
course to be charged with what he has received.
3. Any surplus that may remain is to be appropriated to the
judgment-creditors, in their order of priority, excluding, however,
such judgments as were not recorded in the proper county according
to the statute. Or Bartee may redeem from these creditors.
*10 4. In order to adjust these rights the negroes will be sold.
The vice-chancellor decreed the judgments to be a lien on the
property, on the ground that the bill of sale, which was to operate
as a mortgage, had not been recorded. In Dey v. Dunham, 2 Johns. Ch.
R. 182, a deed absolute on its face, was converted into a mortgage
by a subsequent defeasance in writing, and it was held that the
subsequent agreement should have been registered as a mortgage, and
that the registry of the absolute deed was not sufficient, because,
as it was said, a subsequent purchaser was not bound to search the
record of deeds to be protected against the operation of a mortgage.
But here there was nothing to record. It is an equitable mortgage,
an absolute instrument which equity converts into a mortgage, and
equity will not so convert it to the prejudice of the grantee. The
general rule is, that the instrument which gives rise to an
equitable mortgage must be registered, if it be not an actual
conveyance, but merely an instrument which raises an equitable
mortgage. 2 Powell on Mort. 621, note. A bill of sale need not be
recorded, and any parol agreement in relation to it cannot be. In
the case cited from 2 Johnson, the possession probably remained with
the grantor. Bartee took possession of the negroes, and no other
conveyance was necessary to pass title. This was equivalent to
notice.
Decree reversed, and cause remanded.
10 Smedes & M. 282, 18 Miss. 282, 1848 WL 1981 (Miss.Err. & App.)
End of case ------------
High Court of Errors and Appeals of Mississippi.
ZACHARIAH WILLIAMS et al.
v.
DOE ex dem. BENJAMIN C. OPPELT.
January Term, 1844.
It is error to permit a sheriff to amend his return after the return
term, without notice to the adverse party.
The following words are a sufficient return of service in an action
of ejectment, viz: "executed the within declaration and notice upon
the within named A. B. & C. D. April 25th, 1843."
The common law rule requiring an affidavit of the service of the
declaration and notice in ejectment, is altered by our statute; the
affidavit is not necessary in this State.
In an act of ejectment, it is error to enter a judgment by default,
against the tenants who neglect to appear and make themselves
defendants; it should be rendered against the casual ejector.
*1 THIS case is brought here by writ of error to the circuit court
of Neshoba county.
The declaration was in the ordinary form of ejectment; the lessor of
the plaintiff was Benjamin C. Oppelt, the casual ejector, Zachariah
Roe; the tenants in possession, to whom the usual notice was
addressed by the casual ejector, were Zachariah Williams and Joseph
D. Abney.
The Sheriff's return on the declaration was as follows: "Received
April 25th, 1843. L. B. Austell, sheriff, by A. B. Wooldridge,
deputy sheriff. Executed the within declaration and notice, upon the
within named Zachariah Williams, and Joseph D. Abney, April 25th,
1843. L. B. Austell sheriff, by A. B. Wooldridge, deputy sheriff."
On the third day of May, 1843, judgment was entered by default,
against Williams and Abney, the tenants in possession, and a writ of
habere facias possessionem awarded against them.
At the October term, 1843, of the same court, held at Philadelphia,
Neshoba county, on the first day of November, on motion of the
plaintiff's attorney, leave was given the sheriff to amend his
return; which was accordingly amended as follows: "Executed the
within declaration and notice upon the within named Zechariah
Williams and Jos. D. Abney, April 25th, 1843, L. B. Austell. Sh."
V. E. & B. D. Howard, for plaintiffs in error.
1. As the tenant neglected to appear, and make default, the judgment
should have been taken against the casual ejector. H. & H. Dig. 590.
Adams Eject. 247. 2 Johns. Cas. 106.
2. It was error to admit the sheriff to admend his return after the
return term, without notice to the adverse party. 5 How. 173. If the
first return was insufficient, the judgment now stands as without
notice, because the amendment is void.
3. It does not appear from the papers, that the declaration was
filed on the first day of the term; unless such was the case it was
error to take judgment by default.
4. The service in this case of the declaration and notice, is
insufficient. There is a simple indorsement of execution by the
sheriff. The notice to the tenant in ejectment is not in the nature
of process, and does not admit of the same kind of service. The
statute permits the return to be made according to the laws of this
state; but return and service are very different things. Besides the
notice in ejectment, is not declared to be process, and therefore
the common law rule is not changed, as to the service of notice on
the tenant. H. & H. Dig. 617. 1 Low's Rep. 134. There should have
been an affidavit of service, according to the common law
proceeding.
No counsel appeared for the defendant in error.
Mr. Justice CLAYTON delivered the opinion of the court.
Several errors are assigned as reasons for the reversal of this
judgment, which we will proceed to notice.
*2 First, it was error to permit the sheriff to amend his return,
after the return term, without notice to the adverse party. This
ground is certainly well taken, and it throws us back upon the
inquiry, whether or not the first return was sufficient. It is in
these words, "Received April 25th, 1843. L. B. Austell sheriff, by
A. B. Wooldridge, deputy sheriff. Executed the within declaration
and notice upon the within named Zachariah Williams and Joseph D
Abney, April 25th, 1843. L. B. Austell, by A. B. Wooldridge Deputy
Sheriff." We are unable to perceive any defect in this return, or
any reason why an amendment was desired, and in truth the return as
amended is word for word the same as the first, except that the name
of the deputy sheriff is omitted, and the service is thus made to
appear to have been by the principal. If the first return were not
true, this is not the mode to correct it.
It is next objected, that the service of the declaration and notice
is insufficient, because there is simply an indorsement of
"executed" by the sheriff, unaccompanied by an affidavit of service.
At common law the notice might be served either by a private person,
or by an officer; but whether served by the one or the other, an
affidavit of service was necessary. The mere return of the officer
was not sufficient. 1 Rob. Prac. 452. Adams on Eject. 243. But our
statute alters this rule. It directs that the process shall be
according to the course of the common law, but that the return shall
be according to the laws of this State. This can mean nothing else,
than that the return of service by the sheriff, shall be sufficient
evidence of the execution of process in this, as in all other
instances. H. & H. 617.
The last objection is that it was in error to enter a judgment by
default, against the tenants who neglected to appear, and made
default, but that it should have been rendered against the casual
ejector. This objection is well taken. That was the rule at common
law, and it is expressly re-enacted by the statute of this State.
Adams Eject. 248. H. & H. 617.
For this error the judgment will be reversed, and this court
proceeding to give such judgment as the circuit court should have
given, doth direct a judgment to be entered against the casual
ejector.
1 Smedes & M. 559, 9 Miss. 559, 1844 WL 2015 (Miss.Err. & App.)
End of case ------------
High Court of Errors and Appeals of Mississippi.
CLAIBORNE MANN
v.
HEZEKIAH NICHOLS.
July Term, 1843.
A sheriff's return of satisfaction on an execution cannot be set
aside as false, upon the motion of the plaintiff, without notice to
either the defendant in the execution or sheriff.
Judgment to set aside a sheriff's return of satisfaction as false,
on motion of plaintiff, without notice to the sheriff or defendant,
will be set aside.
*1 ERROR from the circuit court of Neshoba county.
The facts of the case fully appear in the arguments of counsel and
the opinion of the court.
Enloe & Hubbard, for plaintiff in error.
Any person whose interest is affected by a judgment may prosecute a
writ of error. Flournoy v. Smith et al., 3 Howard's Reports, 62.
The interest of the plaintiff in error is affected by the judgment
on motion in the court below; the execution ordered by the judgment
to be issued, was to run against his goods and chattels, lands and
tenements.
Process should have been issued to bring the plaintiff in error into
court before a judgment was rendered affecting his interest, or at
least he should have had notice of the pendency of proceedings by
which his interest was to be affected by some means known to the
law. Same authority.
If the return made by the sheriff, on the execution against the
plaintiff in error, was not made according to the facts, its
falsehood was a matter to be ascertained by a jury. Upon the face of
the record the plaintiff in error is discharged from liability on
the judgment; if he is in fact liable, that liability arises, or its
continuance depends, on matter in pais, and can only be shown by due
course of law. It cannot be inquired of by a circuit judge, on
motion, without the intervention of a jury. The record should show
that a trial by jury was had. Same authority. See also Rev. Code,
251, § 7.
Forrester, for defendant in error.
The record shows that the defendant in error brought suit on a
promissory note in the circuit court of Neshoba county, for upwards
of $5000. That the suit was discontinued as to Isam Daniel, and
judgment executed by default against Mann, for about $4600.
Execution issued upon said judgment was placed in the hands of the
sheriff of Neshoba county, who returned the same, satisfied. That,
at the June term, 1841, a motion was made to quash the return on
said execution, because it was false, by the defendant in error,
which motion was sustained; from which latter judgment a writ of
error is prayed. There is no bill of exceptions in the case setting
forth the evidence on which the court acted, and this court will
therefore presume the judgment correct. This court has often decided
that it will not disturb judgments rendered by the circuit court,
without a bill of exceptions setting forth the testimony on which
the court below acted. For this court will presume, that there was
sufficient testimony to base the judgment of the court below on, as
well as evidence, that the parties were regularly before the court,
unless the record proves the contrary.
As to the objection that there should have been a jury empannelled
to try the facts; this court has decided that the circuit court may
ascertain the facts upon a motion in a case of this kind themselves,
without the intervention of a jury, and the judgment will not be
reversed unless the trial by jury be demanded by the parties.
*2 As to the objection that it is uncertain which of the defendants
the writ was executed on: there is no uncertainty about it. Mann
lived in Neshoba county, and Isam Daniel in Newton county. The
original writ was issued to Neshoba county, and no duplicate to
Newton. The original writ was returned, executed on the defendant,
to wit, Mann, and the duplicate does not appear in the papers--
perhaps never was returned; therefore it was discontinued as to
Daniel, and judgment by default against Mann.
There is therefore no error in the case.
Howard, in reply.
1. It appears of record, that the judgment of the court was
erroneous. When such is the case, no bill of exceptions could be
tendered. The officer's return, and the judgment of the court,
contain all the facts of the case.
2. The record does not show any notice to the defendant in the
motion.
3. It was not competent to assail the truth of the sheriff's return
by motion against the defendant by the plaintiff in the execution.
The officer had returned the execution, satisfied; which was
conclusive between the parties to the record. If the return was
false, the remedy was by a proceeding against the sheriff, and not
defendant in the execution. 8 Am. Com. Law Rep. 54. 3 Phil. on Ev.
(late ed.) 1087, where all the authorities are collected.
Mr. Justice CLAYTON delivered the opinion of the court.
The appellee, on the 19th of April, 1839, caused an execution to
issue against the appellant, from the circuit court of Neshoba
county, upon a judgment which he had previously obtained. The
execution was returnable to the following October term of the court,
and was returned satisfied in full. At the fall term, 1840, of the
court, a motion was entered to set aside the return, because it was
false, and the motion was continued till the May term, 1841. No
notice appears ever to have been given either to the sheriff, whose
return was sought to be set aside, or to the defendant in the
execution. At the term to which the case was continued, the court
gave judgment that the return was false, and should be quashed, and
directed a new execution to issue. The record does not show that any
one appeared to make defence, and the whole proceedings seem to have
been ex parte.
The want of notice, unless there had been an appearance by the
opposite party, is a fatal defect. It is insisted that, as there is
no bill of exceptions, everything will be presumed to have been
rightly done. There is no room for a presumption of this kind, when
the adversary party had no opportunity to file exceptions.
It is unnecessary to notice the other points in the cause.
The judgment of the court below will be reversed, and the motion is
overruled for want of notice.
1 Smedes & M. 257, 9 Miss. 257, 1843 WL 2050 (Miss.Err. & App.)
End of case ------------
Circuit Court of Appeals, Fifth Circuit.
TIBBS
v.
DEEMER MFG. CO.
No. 2,050.
October 3, 1910.
In Error to the Circuit Court of the United States for the Southern
District of Mississippi.
Action by J. A. Tibbs against the Deemer Manufacturing Company.
Judgment for defendant, and plaintiff brings error. Reversed and
remanded.
Where, in an action for injuries to a servant, there was evidence
indicating that defendant was negligent in furnishing plaintiff
certain defective tongs to be used in connection with a log skidder,
and that such negligence was the cause of plaintiff's injury, and
the evidence did not show as a matter of law that plaintiff was
either negligent or assumed the risk, the court erred in refusing to
submit the case to the jury.
*49 S. A. Witherspoon, for plaintiff in error.
C. C. Dunn, for defendant in error.
Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.
McCORMICK, Circuit Judge.
The plaintiff in error, J. A. Tibbs, brought this suit against the
defendant in error, the Deemer Manufacturing Company, to recover
damages for personal injury caused to have been received by him
through the negligence of the defendant. The suit was instituted in
the state court in Neshoba county, Miss., and was removed by the
defendant to the Circuit Court of the United States for the Southern
District of Mississippi on the ground of the diverse citizenship of
the parties. The declaration states, in substance, that the
defendant owns a large sawmill in Neshoba county, and from its mill
has constructed and operates a railroad out into the pine forests
from which it secures the logs to be manufactured into lumber. Upon
this railroad is operated two skidding machines, to which are
attached very long wire ropes, and to the end of each of these ropes
is fastened a pair of tongs made of iron bars, and the teeth or
points of these tongs are fastened into the end of the logs, which
are then drawn to the side of the railroad by the power of the
skidding machine. The plaintiff was the foreman of the crew which
operated the skidding machine and brought the logs from the woods to
the railroad; and his complaint is that the defendant failed to use
ordinary care in providing the crew with suitable and safe tongs,
alleging that the tongs provided were entirely too small, weak, and
insufficient for the purpose of their use, and were, therefore,
unsafe and dangerous. The plaintiff notified the superintendent of
the defendant, one Tedford, that the tongs or hooks were unsafe, and
was promised by the superintendent that, if he would continue in the
service of the defendant, it would supply him with larger and
stronger hooks or tongs, which would be safe and suitable for the
work; that this promise had not been fulfilled when, on the 30th day
of June, 1908, one of the hooks, which had been fastened to the end
of a log which the skidding machine was drawing to the railroad,
gave way, and, slipping off the end of the log, was thrown with
great force and violence along the line towards the skidding
machine, and in its passage struck a tree, and, rebounding from the
tree, glanced to the position of the plaintiff, knocking him down
and breaking both of his legs, disabling him permanently. It states
that the plaintiff had taken his position about 41 feet from the
line along which the log was being dragged, which was a position of
reasonable safety, had the tongs been suitable and safe. The
negligence of the defendant, as averred, consisted in not providing
suitable and safe hooks or tongs.
The defendant pleaded the general issue, and, according to the
practice in Mississippi, gave notice of special matters of defense.
These notices state, in substance: (1) That the plaintiff had
knowledge of the insufficiency of the tongs or hooks, and therefore
assumed the risk. *50 commonly used at that time. (3) That the
plaintiff selected an unsuitable and unsafe route over which to drag
the log. (4) That the log in its course to the railroad struck a
root or stump, which obstruction subjected the tongs or hooks to an
unusual and extraordinary strain, and that it was caused to come
loose by this strain, and not by any defect or weakness. (5) That
the log in its course was obstructed by a claybank, and that,
instead of detaching the log from the claybank, the plaintiff
negligently caused the engineer to put on an extra amount of force
to overcome the obstruction, and that this negligence of the
plaintiff, and not the defects of the tongs or hooks, caused them to
pull out of the log and wind around a tree. (6) That, when the cable
and tongs were wound around the tree, the plaintiff negligently
caused the engineer to put on more force to unwind the cable,
instead of unwinding it with his hand, and that in thus unwinding it
the tongs struck and injured plaintiff. (7) That while the log was
being dragged to the road, and while it was held by the claybank,
and while the tongs were being unwound from the tree, the
plaintiff's position was dangerous, and that he was negligent in
taking such position. These seven contentions of the defendant are
denied in the counternotice of the plaintiff.
On the trial, the plaintiff testified in his own behalf. He also
called and examined as a witness V. M. Tedford, who testified that
on the 30th of June, 1908, the day when the injury was received, he
had charge of the Deemer Manufacturing Company's works; was
superintendent; that he had all authority, hired and discharged men,
raised and lowered the wages, etc. Plaintiff also called and
examined as a witness J. R. McCall, who testified that at the time
the injury was received he was handling the engine of the skidding
drum; he was called the engineer in the work that the plaintiff was
conducting with it; he saw the plaintiff when he was hurt. Plaintiff
also called and examined as a witness Mr. E. G. Brooks, who
testified that:
'On the 30th of June, 1908, when the plaintiff was hurt, Mr. Tibbs
was my foreman, and I was working under him.'
The plaintiff also called and examined G. W. Bailey, who testified
that at the time the plaintiff was hurt, this witness was working
for the company in the blacksmith shop, where the tongs were made
and repaired. Mr. J. L. Beard, a witness, was called and examined
for the plaintiff, who testified that at the time the plaintiff was
injured the witness was working for the Deemer Manufacturing Company
in the woods with the skidder, or near the skidder, and had helped
to tong the log. A physician, who had examined the plaintiff when he
was hurt, testified as to his injuries; and an insurance man
testified as to life expectancy. These witnesses were examined fully
by counsel for the plaintiff, and cross-examined exhaustively by
counsel for the defendant; displayed a diagram of the location,
showing the position of the railroad track with the skidder engine
on it, of the log, of the place where the plaintiff was standing
when he was hurt, the amount of steam the skidder engine had on, and
all the details conceivable to picture fully to the jury the
circumstances surrounding the actors at the time of the injury, with
the proof of the blacksmith as to the material *51 and construction
of the tongs, etc. Whereupon the plaintiff rested. And the evidence
which had been offered by him was all the evidence introduced on the
trial of the cause.
The defendant offered no evidence of any character, but, at the
conclusion of the evidence for the plaintiff, moved the court to
exclude all the testimony of the plaintiff from the jury, and to
give the jury a peremptory instruction to find a verdict for the
defendant, which motion being argued, and considered by the court,
was sustained; and the court excluded from the jury all the
testimony of the plaintiff, and instructed the jury to find a
verdict for the defendant, to which action of the court the
plaintiff then and there duly excepted; and thereupon the jury
returned the verdict, 'We, the jury, find for the defendant,' on
which the judgment for the defendant was rendered; and the plaintiff
sued out this writ of error, and assigns for error that the court
erred in excluding the testimony of the plaintiff, and in
instructing the jury to find for the defendant.
In our opinion, this assignment is manifestly well taken: (1) For
there was evidence tending to show that the defendant was negligent
in furnishing defective tongs, and that such negligence caused
plaintiff's injury; (2) the evidence does not show, as a matter of
law, that plaintiff was either negligent or assumed the risk
attendant upon the work in hand. It seems manifest to us that the
court erred in refusing to submit the case to the jury, and that the
judgment should be reversed, and the cause remanded to the Circuit
Court, with direction to award the plaintiff a new trial.
And it is so ordered.
182 F. 48, 104 C.C.A. 488
End of case -------------
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