33 Ky. 95 | Ky. Ct. App. | 1835
delivered this Opinion.
This is an action of detinue brought by the executors of John Bernard, deceased, against William Chiles, for a female slave named Ester; whom he bought, in 1823, at a sheriff’s sale, under a fien facias in favor of Frederick Loring against Joshua Bernard; who, claiming the slave in right of his wife, transferred her, in April, 1809, to John Bernard, by bill of sale purporting a valuable consideration.
After evidence had been given tending to prove, that either Joshua Bernard, or his wife, had been in the ostensible possession of Ester, from about the date of the bill of sale until the sale under execution, in 1823, and that the said Joshua and wife had lived separate and
First. Whatever ground there might be for doubt respecting the fact of the alleged- satisfaction of Loring’s judgment prior to the sale of Ester, under his execution thereon, we are nevertheles of the opinion, that the return (“ settled”) on the writ which was issued on that judgment, in Michigan, and the parol proof, that the officer who made that return, was also the attorney in fact of Loring, and that Loring afterwards admitted that his said agent had collected the amount of the judgment, were sufficient to authorize the jury to decide, that the judgment had, in fact, been discharged in 1817. And, if it had been so discharged, the sale under the execution was void, and could have transferred no title whatever. For without a subsisting, unsatisfied judgment, Loring could not have had any right to subject the slave as the property of Joshua Bernard. As the bill of sale had vested the title in John Bernard, and as," between
The question, therefore, whether the judgment had been satisfied or not was material; and the jury had a right to decide it.
Second. The possession' contemplated by the statute of frauds (supra,) must be ostensibly either actual or usufructuary: that is, it must be a possession in fact, by the debtor, or under him, or apparently to his use; such a possession as would be a badge of property, and might, therefore, give a delusive credit. Now, although, after a separation a mensa, the possession by the wife de jure of her own property or of that of her husband may be his possession, for many legal purposes, — nevertheless, her actual or beneficial possession of the property of a benevolent stranger or friend, is not, either in fact or in law, the possession of her husband in any sense or for any purpose. After the separation he was not; in fact, actually possessed of the slave; and, as the title wTas in John Bernard, and as the constructive possession follows the title, the law presumed the possession to have been in the owner, and not in the absent husband, whose only right even to the use was founded on the technical fiction of the identity, in law, of husband and wife, or on the mere legal power, still conceded to him by the common law, over his wife, and over the use of property in her possession. The property of another held by her, or to her use, he could only have enjoyed by and during his cohabitancy with her. Then, unless the title was in Joshua Bernard, or his wife, her possession and use of the slave after their separation should not be deemed to have been, either in fact or in law, his possession. And it could
As to the fact of separation, and its date, the jury had a right to decide, and seem to have been left free to decide for themselves.
Having thus disposed very briefly of the two leading points, we have only to observe, that all the instructions which were given to the jury, seem to have been substantially right, and that those which were overruled, had either been before given in effect, or were erroneous assumptions of law or of fact; some of them, which would have been otherwise unexceptionable, were properly rejected, because they contemplated a finding for Chiles, without any regard to the question whether Boring’s judgment had been satisfied or not, in 1817.
Wherefore, in the great multitude of motions and points presented, we perceive no error to the prejudice of the plaintiff in error; and therefore, the judgment of the Circuit Court on the verdict of the jury, whether that verdict be clearly sustained by the facts or not, must be affirmed.