40 Miss. 599 | Miss. | 1866
delivered the opinion of the court.
Calhoun filed his bill in the Chancery Court of Leake county, against Francis Burnett, Jordan E. Allen, and others, in which he alleged that R. J. Morgan and W. Morgan, in 1858, executed a deed of trust in the State of Texas, where all the parties resided, and where the property was situated, whereby they conveyed certain land and slaves to ~W. Alexander, as trustee, to secure certain debts due to the complainant; that in February, 1859, R. J. Morgan ran off the slaves from Texas to Leake county, Mississippi, and there sold four of them to defendants Francis Burnett and Allen, for an inadequate price; that.Morgan was assisted by one Bartlett, and that Burnett and Allen, at and before their purcháse, had notice of the deed of trust, and that the slaves had been run off in fraud; that said Burnett and Allen removed the slaves in the night, and secreted them; and that James Burnett, John Burnett, and Pinckney Bowie, confederated with and aided them to conceal said slaves, and remove them from place to place, so as to prevent complainant from finding them; that Alexander, the trustee, is a citizen of Texas, and can give no attention to the trust, and will not attend to it in this State; and prays that the defendants be declared trustees, and be decreed to deliver up the slaves to bfe sold under the deed of trust for the payment of complainant’s debt, and that if the defendants have sold the slaves, that they may be required to pay the value, etc.
The notes and deed of trust are made exhibits to the bill.
The answers of John and James Burnett, and of Bowie, admit their participation in carrying away .the negroes, at the request of Allen and Francis Burnett, but deny any notice of the claim of complainant, and only state in substance that they were informed by Allen and his copartner that there was a doubt about the title, and that they wished to keep the negroes out of the way.
Doles, a witness for complainant, testified that actual notice was given by Morgan and Bartlett, to Allen and Burnett, of the existence of complainant’s deed of trust, and that the negroes had been run from Texas to avoid it, and that they were advised to get the negroes out of the way as soon as possible. And in answer to this proof, it is shown that Doles was drunk on the day of the sale, and was in habits of intoxication at that time. The witness that proves this, made a purchase of property from Doles on the same day of the sale of the negroes.
On the 25th of February, 1861, an order of reference was made to a commissioner, to report the amount due to complain
1. That the value of the negroes is not properly involved in this controversy.
2. The court cannot make a decree in favor of said complainant against said defendants, for the value of the negroes as damages in this cause.
3. The said negroes, since the making of the said decree of reference, have ceased to be property,- and cannot be delivered by defendants.
These exceptions were sustained by the court, and the bill dismissed, and the complainant appeals. The action of the court in sustaining the exceptions, and dismissing the bill, is assigned for error.
On this case, thus briefly stated, we may remark that purchases, made with ucftice of the legal or equitable title of other persons to the same property, are classed in equity under the head of constructive frauds, and that in all such cases of purchases with notice, courts of equity will hold the purchaser a trustee for the benefit of the persons whose rights he has thus sought to defraud or defeat. 1 Story’s Eq., section 395.
Doles testifies clearly, that Allen and Francis Burnett had
Tbe facts that tbe negroes were brought all tbe way from Texas to Leake county in this State, to be sold; that it was agreed before starting between Morgan and Bartlett, that they should be sold at that point, passing by tbe markets of New Orleans and Yicksburg; that they were not offered in Oarthage, but carried to tbe house of Doles, two and a half miles distant; the anxiety to sell, and to sell “ low for cashtbe late hour of tbe night when the sale was made ; the actual sale for not one-half the value, of which only $300 was paid in cash — were all calculated to excite suspicion, and put the purchasers on inquiry, and go far to persuade an indifferent mind, that what Doles states is the truth of the case. And this conclusion is strengthened by the fact, that although Bartlett, Morgan, Allen, and Burnett were all competent witnesses, none of them was introduced to contradict him.
Allen and Francis Burnett, having then purchased the property with notice of the trust, are chargeable as trustees, and were bound to hold it in good faith for the purposes of the trust. If it remained in their hands they would be compelled to surrender it. But having sold and disposed of it, so that it can no longer be followed, and having converted the proceeds of the sale to their own use, they are clearly liable to compensate the cesinds que frust, by payment of a sum equal to the actual value of the trust property so appropriated. Ilill on Trustees, 522. The proper remedy to enforce this liability is
Nor can tbe fact tbat slavery has been abolished bave any effect upon tbe rights of tbe parties. There is indeed no proof tbat any of these negroes were alive wben tbe emancipation took place, or tbat they were not voluntarily set free by tbe person to whom tbe defendants sold them. Tbat sale toot place while tbe negroes were slaves. Tbe purchaser acquired tbe property in them, and if they bave since been embraced by tbe general act of emancipation, tbe loss has been bis, not tbat of tbe defendants. They received tbe price, and bave enjoyed it; and their liability to pay tbe actual value of tbe slaves to tbe complainant accrued at tbe time of tbe sale to Ries, and has not been affected or altered by any subsequent events. '
Tbe decree dismissing tbe bill will be reversed, and, as tbe whole case was on final bearing in tbe court below, tbis court will pi’oceed to render sucb decree as that court ought to bave rendered. Tbe exceptions to tbe report of tbe commissioner will be overruled, and the report confirmed, and a decree entered for tbe complainant against tbe defendants, Jordan E. Allen and Erancis Burnett, for tbe amount stated in tbe said