| Ga. | Jun 15, 1858
Lead Opinion
By the Court.
delivering the opinion.
This is the second time this case has been before thi3 Court; and to be justified in sending it back again, we should he clearly satisfied, not merely that injustice may have been done, but that the plaintiff in error has actually been wronged. How frequently are these little properties consumed by protracted litigation — the greatest curse that can be inflicted on parties.
And so far from right’s not having been done, we have ©very reason to conclude, under the charge of the Court, that the contrary is true.
What are the facts ? Mr. Siller dies, leaving a widow and three small children, and a negror girl of twelve years of age. No administration is taken out upon his estate, by his brothers-in-law, or by any body else. Frith intermarries with the widow. He raises the children as his own. The girl has one child and upon consultation with his wife, Frith concludes to sell the negroes. The fact, that in right of his wife, he was entitled to one-fourth of the price, is the surest guarantee that she and the child brought their value. Frith settles the outstanding debts against the estate and rears the children. One of them dies b.efore there is any accounting with him by Frith; and Frith discharges this son’s debts, the proof showing that he had agreed to do so, in Lorenzo’s life time, and at the time they were contracted.
What was the measure of damages to which they were entitled ? I answer confidently, that in a case like this, where it is impossible to deliver the property, that the value at the time of sale, .with the interest thereon, is the rule sustained by the current of cases, English and American. I am aware, that numerous dicta may be found which seem to indicate a different doctrine. I will not say, that there are not adjudicated cases to the contrary. But upon examination, I apprehend it will be found, that whenever the books speak of the highest value from the date of the conversion to the time of trial, as the measure of damages, they refer to cases in which it is possible to deliver the property in discharge of the verdict. And so the Judge instructed the jury that if they should find the sale was not fair, they might award the present value of the negroes. No doubt it was fair, it being the interest of the vendor to get the highest price. We assume then, that the criterion of damages was properly submitted. Hire to the time of sale, the purchase money with interest since; more I doubt not, than the annual hire would have amounted to.
Shall it be asked, shall a tortfeasor be dealt with as though he was clothed with authority to make the sale ? We reply, no more than this could be recovered against an executor de son tort; and this is the most that can be made of Frith, and that too, only as to three-fourths of the property. He owned the other fourth. He was a joint tenant of the whole. So much for the trover action.
As to the instructions of the Court respecting the equitahie set-off to which Frith was entitled, all that was argued and decided when the case was up before. Either we were
Suppose Frith did pay some of Lorenzo’s debts after his death, he had promised to see them paid at the'time they were contracted; But if he had not, should the portion of his stepson be wrenched from his hands, until he was re-imbursed the amount that he had justly expended for this purpose ? To quote the principle, that one cannot make another a debt- or against his will, is a misapplication of it to such a case. What are the heirs at law of Lorenzo Siller entitled to ? The residue or net surplus of his estate, after his debts are paid. And does it matter to them, whether they were paid by Frith, without an administration and without expense to his next of kin, or through an administration ?
We are happy at not finding ourselves constrained to send this case back. For we may talk as much as we see fit, about breach of trust, usurpation of power, &e., in this case, the key to it is just this: up to the sale of the girl and her child by Frith, all who were concerned in the estate thought he was managing for the best interest of all concerned. But the woman it seems, instead of dying or proving barren, or valúeless, for any other reason, has turned out to be a most prolific breeder; and as poor Frith for his own sake, as well as the good of his step-children, had not the prescience to foresee this, the result must be visited upon his Head. We are all willing to take wives and contracts and everything else, for better, how few for worse! The recollection of the ruin of one honest trustee in this State, has made me slow to repeat the infliction. He sold ten negroes in January 1837, big and little, young and old, for $10,000. Those were the flush times in Georgia. He re-invested the proceeds in Railroad Stock at par. A new guardian was substituted. The new investment was repudiated, and in the face of an oifer to restore the identical negroes with hire—
Judgment affirmed.
Concurrence Opinion
concurring.
All the questions in this case, except two, were .waived. Of those two, the first was, as to whether Frith was entitled to an allowance for the debts of Lorenzo Siller, which he had paid after the death of Lorenzo; and the second was, as to what was the measure of the damages, in respect to the negroes.
Lorenzo’s share in the property sued for, exceeded in value the amount of his debts paid by Frith. Frith, therefore, in paying those debts, did not incroach on the shares of the ©ther distributees.
I think, then, the Court was right in holding, that Frith was entitled to an allowance for the payment of these debts.
Frith, soon after his marrige with Mrs. Siller, sold the negro woman and child belonging to the estate of the late husband of Mrs. Siller. After the sale, the woman had other children, and the child which was a female, also had children.
The Court held, what amounted to this; that the value of the woman and her child, at the time of the sale, yvas, (plus hire,) the value to be taken, as the measure of the damages. Dorsett’s counsel objected to this, insisting:- First, that the value of the issue born after the sale, should also be taken into the account: Secondly, that, if wrong there, yet, that
The time of the sale, for ought that appears to the contrary, was the time of the conversion. The conversion consisted it seems, in the act of sale.
There is a conflict among the authorities, as to whether the jury are confined to the value at the time of the conversion, or are to have the option of taking that, or, some subsequent value. Mr. Sedgewick seems to think, that they are confined to the value at the time of the conversion. Sedgewick, Meas. Dam. 481. See Id. 475, et seq. See too, Suydam vs. Jenkins, 3 Sand. 614.
This Court has held, that the jury were at liberty to take the value even up to the trial.
The injury consists in the conversion, and as long as the conversion endures, the injury endures. Every instant of the conversion may be considered a repetition of the injury. The thing remains the true owner’s at the last instant of the conversion, as much as it was his, at the first. But after the wrong doer has parted with the thing to another person, the conversion ceases as to him, and passes over to that person, and abides with him as long as he keeps the thing.
I think, therefore, that the only cases in which, the option exists to the jury, of taking a value subsequent to the first conversion, are the cases in which, the property remains in the possession of the defendant subsequent to that conversion ; that is, are cases in which, there is a continuing conversion ; and, that in these cases, the option does not extend beyond the time when he parts with the possession ; that, if the owner wants to recover by a value taken subsequent to that time, he must elect to sue the person to whom the possession has passed.
In the use of the word, “ elect,” I do not mean to say, that suing one who converts a female slave, and recovering from
It must be apparent from what I have said, that I agree with the Court below, on the question under consideration» The conversion was nota continuing one.
Dissenting Opinion
dissenting.
I dissent on the ground alone, that I think evidence of the value of the woman Feraby and her child, and of her hire from the time of the sale to the time of the trial, ought to have been admitted to go to the jury. The action enjoined was aa action of trover. The plaintiff might have waived the torts and sued in assumpsit for the price for which the woman; and child were sold. In that event he could have recovered the sum for which they were sold with the interest-But he chose to proceed in tort. The defendant in trove® was a wrong-doer and the plaintiff ought not to have been damnified by his tort, even if the defendant derived no advantage from it, further than the then value of the negro. The English rule of damages affords no just criterion here, in suits for the recovery of slaves, because they have no slaves there. A case like the one before us, of the conversion of a female slave and her child, constant increasing in value, is unknown in the English law. But apply a principle of the English law to this case, and there is no difficulty t If a ease be such that either the person who commits, or the f erson who suffers the wrong must lose, the loss must fall on the wrong-doer. The defendant should make complete reparation for the wrong which lie had committed. If he had not sold the negro, the administrator would have been entitled to receive from him the negroes as they were at the time of the trial. Should the tort of defendant put him in a worse condition ? I think Judge Warner, in delivering the