Darby v. Swartz

11 Mo. 217 | Mo. | 1847

Napton, J.,

delivered the opinion of the Court.

This was an action of detinue, brought by Darby, the administrator of Samuel A. Childs, against Swartz, to recover a negro girl, alleged to belong to the estate of said Childs.

The plaintiff, on the trial, offered evidence showing that the girl, together with several others, originally belonged to Samuel A. and B. Childs, who were partners and insolvent; that an execution upon a judgment against Samuel A. Childs, for an individual debt of said Samuel A., had been levied on said girl, and that she was sold under said execution to the defendant, Swartz ; that a suit in chancery had been commenced against the partnership, in the progress of which, this slave and others had been attached — and that the partnership effects were entirely insufficient to pay the partnership debts.

The court, at defendant’s request, instructed the jury that this evidence did not support the plaintiff’s declaration; and thereupon, the plaintiff took a nonsuit, which he afterwards moved to set aside. This motion being overruled, the cause was brought here by writ of error.

Whatever title Samuel A. Childs had to this slave, was purchased by the defendant at the sheriff’s sale, and of course his administrator could have no right to recover. If the creditors of S. A. and B. Childs have a lien on the slave, or a right to appropriate her value to their use, I do not see that the intervention of an administrator upon S. A. Childs5' estate will be essential to the establishment or enforcement of their rights. She would be as accessible to the process of the law in the hands of Swartz, as in the possession of S. A. Childs’ administrator. The latter would have nothing to do with property which belonged to the partnership of S. A. & B. Childs, unless it had been in the possession of S. A. Childs at his death.

The other Judges concurring,

judgment affirmed.