Harrison v. Hicks

| Ala. | Jan 15, 1835

By Mr. Justice Thornton :

This-was an-action of trover, brought by the defendant, in error, to recover damages for the conversion of a negro man slave, (the property of said defendant) by the plaintiffs in error. The errors assigned, arc for the refusal of variops charges requested by the said plaintiffs to be given by the court below, to the jury; as also, for charging as the bill of exceptions sets forth.

The evidence, to which reference is had, in the instructions given, and refused, is substantially — that the slave sued for, had been, some time prior to the institution of the present action, sold under an execution, upon a judgment obtained according to the laws and usages of the nation of Cherokee Indians, as to the validity of which, no question is raised, on the record, against the defendant in error,, and his brother Edward Hicks : That one Wheeler became the purchaser of said slave-; and by an agreement between him and the said defendant, the said defendant was entitled to redeem the said slave, upon the payment of the sum of money, viz. one hundred and five dollars, with interest thereon ; which the said Wheeler had paid for him at the sale. Wheeler retained an absolute bill of sals for him ; and the defendant retained the possession of the slave. Wheeler transferred the bill of sale to one Paydon, who, it would seem ,took the assignment with the full knowledge of the contract between the defendant and Wheeler'; and was only substituted to Wheeler’s rights, under the said contract of redemption, between him and the defendant. There was evidence conducing to'prove that, whilst Paydon held the bill of sale, Edward Ilicks, the brother of the defendant, had, by a transfer of a demand, which he held as an emigrating Indian, upon the agency of the government of the United States, for said emigrating tribe ~ of Indians, paid off, and discharged to Paydon, the said sum of money, upon payment of which, es aforesaid, the unincum-bered title to the slave, was to be reinvested in the defendant. After this, Paydon transferred his claim to the slave to the plaintiffs. The defendant, in error continued in the possession of the slave until a short time before the commencement of this action, when he was forcibly taken from him — by whom, it does not appear.

The several charges which were requested of the court, and refused to be given to the jury, involved three propositions. First — that the debt due by the defendant, on the 'agreement with Wheeler, could only be discharged by the actual payment of money. Secondly — that a payment, or discharge of it, by Edward, the brother of defendant, without any contract between him and his brother, would not revest ( the legal title in the defendant. And thirdly — that the facts, 1 constituting the defendant’s right to recover in this case, are cognizable only in a court of equity. All these propositions were repudiated by the court, and as I think, very properly.

As to the first, if the transfer of the claim upon the government agency, was in fact, by the contract between the parties, accepted in payment, and discharge of the debt, unless fraud intervened, or some failure happened, such as this record does not disclose, to vitiate the transaction, I know of no principle of law, which will avoid the contract.

The second proposition is equally untenable. It involves a palpable solecism; for the payment and discharge of a debt, no matter by whom effected, can be nothing more nor less than its extinguishment as a demand. As between the person who paid it, and him for whose benefit it was intended, a question might arise, whether it were purely voluntary or not which would depend on the circumstance of previous request, .or oí subsequent assent, cither express or implied, ' ,

As for tbe last of these propositions, the right of the de-iVndant, as it appears from tlie evidence, was clearly maintainable in a court of law. It "is ■ true, that an equity of redemption is only available in chancery. Hut in the case of a mortgaged chattel, where the debt has been paid, the legal title is perfect in the mortgagor. If this principle be correct, a resort to chancery would not be tolerated, even if the mortgagee were in possession of the property. But when the debt has been paid, and the chattel in possession* there can be no doubt of a perfect legal title, the bill of sale notwithstanding.^a

The charge which was given, being in accordance those principles, was, as we think, altogether unexception-

Let the judgment be affirmed.

a 5 Com. Dig, 99,-4 Bibb, 452.