34 Miss. 65 | Miss. | 1857
delivered the opinion of the court.
This was a bill filed in the Chancery Court of Rankin county, by the appellant.
The original and amended bills present this state of the case: The complainant, in the year 1855, purchased the slave in controversy, from one Isaac Alexander, and took immediate possession of the slave. It further appears, that the slave soon thereafter absconded, or escaped from the complainant; and, by some means, alleged to be fraudulent, went into the possession of the defendant, _ Martha Jane Slaughter, and one Smith. It further appears that Alexander was, at one time, the guardian of the said Martha Jane, then Martha Jane Kirkland, and of her sister, Malinda Kirkland; that the said Malinda intermarried with one Lawrence, and, before the year 1846, died, leaving no issue; that, during the coverture, Lawrence conveyed the slave, that is, Malinda’s interest, to Alexander ; under which purchase he continued to hold an undivided interest, until he sold to the complainant.
The bills further allege that the said Martha Jane intermarried with Slaughter, and that she and her husband sold her interest to Alexander, who thus became invested with the complete title to-said slave. The bill of sale, evidencing this latter contract, is made an exhibit to the bill; but it is not acknowledged, as required by law, and cannot, therefore, be treated as sufficient to pass the title of the said Martha Jane. Nor do we think that the fact of Alexander’s paying the purchase-money, and the probate’s approval of the sale, can operate to make the contract valid, as the wife’s title could only be divested by her own .voluntary act in the mode prescribed by law.
But a different case is presented as to the interest of Lawrence- and wife, in the slave. Upon the death of Mrs. Lawrence, without issue, her interest in the slave, if no sale had been made, would have vested in her husband; and he, having sold that interest to>
We have not thought it necessary to consider the case as presented by the bill of review, as the original and amended bills present a case entitling the complainant to the relief prayed for,— a sale of the slave, and a division of the money.
Nor is it necessary to decide whether the bill of review could be filed after an appeal had been perfected in the court below, as the case is before this court in virtue of the appeal prosecuted from one’ or the other of the decrees, as both decrees were appealed from. ^
Decree reversed, demurrer overruled, and defendants required to answer the original and amended bills in sixty days.
