Avery v. Avery

12 Tex. 54 | Tex. | 1854

Lipscomb, J.

This suit was brought by the defendant in error, against Avery, one of the plaintiffs in error, to recover a negro slave. After Richard Avery had been discharged from the administration on the- estate of James S. Avery, Green was appointed administrator of the said estate, and on his application, was permitted to be made a party defendant. The defence set up was, that the slave sued for was a part of the property appertaining to the estate of the said James 8. Avery, deceased, and not the separate property of the widow, the plaintiff in suit. The material facts are, that James 8. Avery, intermarried with the plaintiff, in the State of Georgia, and by his marriage became the owner of a certain slave, the property of his wife at the time of his marriage; that he always called the slave so acquired, the property of his wife; and becoming a good deal embarrassed, he ran the said slave to the State of Louisiana, declaring that he ran the slave off to prevent his being sold for his debts, and that as he was his wife’s negro, he never should be sold for his debts; that he afterwards paid his debts in Georgia, and was in a prosperous condition in Louisiana, and was out of debt; that under these circumstances, whilst in the State of Louisiana, he proposed to his wife that he would exchange one of his own slaves for one that would suit his wife better than the one he had acquired by his marriage with her, and that he would have the bill of sale for the one received in exchange, in the name of his wife, in the place of the one he had always called her slave; that the exchange was accordingly made, and the bill of sale for the slave received in exchange, was made to his wife, the plaintiff in the suit; and this slave so received in exchange, is the same now in controversy.

James 8. Avery afterwards moved with his family to this State, bringing the slave, together with his slaves with him, and died in Cherokee County. His widow, the plaintiff in this suit, was appointed administratrix, and Richard Avery, the defendant in the suit, was appointed administrator of his estate. In the first inventory and appraisement returned to the Court, the slave in question was not included with the slaves belonging to the estate. The plaintiff' resigned her administration, and Richard Avery proceeded with the settlement of the estate, and made an additional return of appraisement, in which the slave sued for was appraised and returned as the property of the estate of James S. Avery, deceased. The administrator subsequently declared that he had become satisfied that the slave was the separate property of the widow, and did not belong to the estate of his intestate; but alleged that he could not deliver him up to the widow without an order of Court. The slave was subsequently delivered up to the plaintiff, under an order of the Probate Court, but was afterwards taken from her by the defendant, and suit was brought, and on a writ of sequestration, sued out at the instance of the plaintiff', the slave was taken into the custody of the Sheriff, and kept by him, neither of the parties offering to replevy him. In the defendant’s answer, it is alleged that the slave belonged to the community property, and that the estate was insolvent. It was in proof, that, by the laws of the State of Georgia, the property of the wife at the time of marriage, becomes the property of the husband. There was a verdict and judgment for the plaintiff, to reverse which, a writ of error was taken to this Court.

Among other matters of error assigned, it is alleged that the evidence does not support the verdict of the jury; and secondly, that the verdict does not authorize the judgment rendered by the Court below.

It may be admitted, that, by the laws of Georgia, a wife is incapable of holding, in her own right, separate property; and that the property owned by her at the time of marriage, becomes the property of the husband; and that so far as relates to the slave owned by the plaintiff at the time of her marriage, it was the property of the husband, and he was under no legal obligation to compensate the wife for such slave; yet after his removal to the State of Louisiana, where there was no legal impediment to the wife’s holding separate property, it was but natural that he should carry out the long and continually cherished object of either securing the property that he had received from her at their marriage, or make her a suitable compensation for the same; and, the conveyance he caused to be made to her of the slave sued for, though not supported by a strictly legal consideration, rested upon what was regarded by him as a meritorious moral obligation, to which none but a creditor could oppose any legal objection. In this case, no creditor is resisting the claim of the plaintiff, and although in the answer it is alleged that the estate is insolvent, yet the allegation is not sustained by the evidence. If, however, it had been made so to appear, it is the antecedent creditor, and not the legal representative, that should impeach the conveyance. In Dancey v. Smith, et al, (4 Tex. R. 411,) an intimation was thrown out that the administrator, for the benefit of creditors, could, perhaps, impeach the consideration of a voluntary conveyance. We are satisfied now, that it can only be done by a creditor. If we are correct in the views we have expressed, the evidence fully sustains the verdict of the jury.

We will next inquire, whether the finding of the jury is sufficient to authorize the judgment of the Court, The verdict of the jury is as follows, i. e.: “We the jury find for the plaintiff, with $80 damages and cost of suit.” On this verdict the following judgment was rendered, “ it is therefore “considered, adjudged and decreed by the Court, that the plaintiff, Mary Avery, have and recover the negro boy John, de- “ scribed in her, plaintiff’s petition ; and it appearing to the “ satisfaction of the Court, that the said boy John is nowin the “ possession of Joseph F, Henry, Sheriff of the County of Chero- “ kee, it is ordered by the Court that the said Joseph F. Henry, “ Sheriff as aforesaid, deliver to the said Mary Avery the pos- “ session of the said boy John, and also to pay over to the “ plaintiff the amount of the hire of the said boy John, now in “.his possession. It is further ordered and adjudged by the Court, “ that the plaintiff, Mary Avery, have and recover judgment “ against Richard J. Avery, defendant, for the sum of eighty “ dollars, less the sum of twenty-four dollars, paid by the Sheriff “ for hire of said boy—the amount of her damage as found by “ the jury, and all costs up to the fourth day of the present “ Term of this Court, to be taxed, for which execution may is- “ sue.” The verdict is not as perfect in form as it should have been ; but it has been uniformly decided by this Court, that if.by a reference to the record, any uncertainty in the verdict can be explained, it will be sufficient to sustain the appropriate judgment. The language of the verdict “ We find for the plaintiff” is substantially a finding the matter in controversy in the suit, in her favor ; and it is only necessary to look to the petition for the ascertainment, with certainty, the meaning of the verdict. It is objected that the jury ought to have found the value of the slave sued for. In many cases it is essential to the interest of the parties, that this should be done. If the property sued for was beyond the reach of the jurisdiction of the Court, at the time of the verdict and judgment, nothing but compensation for it could be obtained, and the amount of that compensation should be determined by the jury. This would be necessary to the interest of both plaintiff and defendant; but where but one particular piece of property is sued for, and that is sued for in specie, and not in the alternative of damages, if the plaintiff establishes his right to the property, ample and complete justice can only be awarded by a judgment for the restitution of the,property so claimed. In this case, the prayer of the petition was for the specific property; and to secure this object, the plaintiff had procured a sequestration of it, for the purpose of keeping it within the jurisdiction of the Court. Under such circumstances, the necessity of assessing its value, is not perceived. The fact that the property sued for was under the control of the Court, was, doubtless, the reason why the verdict was so found, it being, sufficient on which to base a judgment in accordance with the prayer of the petition. The case of Blakely v. Duncan (4 Tex. R. 184) was altogether different from thisv case. In that the the suit was for several slaves, and the jury assessed their value in the aggregate, and the judgment was in the alternative, for the negroes, or the value so assessed; and in that case, it did not appear that the slaves were under the control of the Court. The authority of that case is not disturbed by our opinion in this.

There was evidence by deposition returned under a commission taken out by the plaintiff, read in evidence, though objected to by the defendant. The commission and deposition were not returned in conformity to the statute, and the Court erred in overruling the objection made to their being read in evidence; and for this error, the judgment would be reversed, if we believed that the evidence could possibly have had any influence with the jury in their finding; but we believe, that such was its immateriality, that it could not, by any construction that it is reasonable to suppose the jury could have put upon it, had any influence in their finding: hence, we believe that although the Judge erred, that it is no ground for a reversal of the judgment, but that it ought to be affirmed, which is the judgment of the Court.

Judgment affirmed.