Henderson v. Warmack, 27 Miss. 830

Henderson v. Warmack

27 Miss. 830 | Miss. | 1854

Mr. Justice Handy

delivered the opinion of the court.

This was a bill filed in the superior court of chancery by a married woman and her husband for the recovery of a slave alleged to be the separate property of the wife. The substance of the bill is, that in the year 1845, the wife purchased the slave and took a bill of sale in her own ñame, and paid the purchase-money by means which she had acquired by her own labor, her husband being then free from debt, and the slave being recognized as her property. Afterwards, the husband, having contracted a debt to Henderson and Moore for about $550, took the slave, against the wife’s consent, and executed a bill of sale therefor to them, absolute on its face, but with an express agreement between them, that it was made merely as a security of the debt, and that when the debt was paid, the slave should be returned. It is further stated that this debt was afterwards paid, except a balance of $100, and that this was tendered to Henderson and Moore and the slave demanded, but that they refused to deliver her up, saying that they had sold 'her to the defendant Montgomery, that they had the advantage in the matter, and intended to keep it. The bill prays for a debree for the delivery of the slave to the wife as her separate property, and for the payment of .hire since the delivery of the slave to Henderson and Moore, and for general relief. The defendants, Henderson and Moore and Montgomery, filed a general demurrer to the bill, which was overruled; and from that order this appeal is taken.

The principal question is, whether the slave, under the circumstances stated in the bill, was the property of the husband, or the separate property of the wife.

There is no doubt but that, by the common law, the slave became the property of the husband; because, as the money received during coverture by the wife from her own earnings became the absolute property of the husband, the purchase by the wife was, therefore, in law, with the means of the husband. Bingh. on Inf. & Cov. 219; Buckley v. Collin, Salk. 114. This *835rule is not changed by our statute of 1839 in relation to the protection of the rights of married women. The first section of that act enables a married woman to become possessed of any description of property by purchase, and to hold it as her separate property, “ provided the same does not come from her husband after coverture.” But the rights of the husband at common law are no further altered by this statute than the express terms of the act provide, or than may be necessary to enjoy the rights expressly conferred by it. There is nothing in the act which, either in express terms or by necessary implica-' tion, has reference to money earcN by the wife during coverture ; and such means would, therefore, remain the property of the husband, and a purchase made therewith by the wife would vest in the husband.

There is no analogy between this case and that of Garrison v. Fisher, 26 Miss. 352. That was a purchase by a married woman of one piece of property by means of another piece of property held by her as her separate estate; and the principle there held is, that it is to be regarded as a mere change of the form of her separate property into another form, which must still remain her separate property, and that such a case is embraced in the right to purchase secured to her under the first section of the act of 1839. But it is manifest that this case cannot come within that principle, because the means with which this purchase was made were in law the property of the husband, and her right to make the purchase is excluded by the rule of the common law, which is consistent with the proviso to the act above mentioned.

If the transaction, then, between the husband and Henderson and Moore had been one of absolute sale of the slave, their title would have been protected against the claim of the wife. But the bill alleges that the slave was delivered to them as a mere security for the debt of the husband, under an agreement to restore her upon the payment of the debt; and that this was afterwards tendered and refused. The demurrer admits these facts ; so that the ease as presented, in this respect, is a mere claim of a mortgagor to redeem ; and if the facts stated in the bill be true, the complainants are certainly entitled to this right. *836The demurrer of Henderson and Moore was therefore properly overruled.

But there is no equity shown against Montgomery. He was a purchaser, for aught that appears, without notice, from parties having possession and holding an absolute conveyance of the slave. Under such circumstances, the complainants could not set up their secret equity to deprive him of his purchase. The demurrer as to him was therefore improperly overruled. If it shall appear -in' the subsequent proceedings in the case, that Henderson and Moore held the slave under the agreement stated in the bill, the complainants will be entitled to relief against them for the value of the slave and of her hire, after accounting to them for the debt due them, and an account should be taken accordingly.

The decree is affirmed as to Henderson and Moore at their costs, and the case remanded for further proceedings.

Fisher, J., dissented, stating that he considered that the complainant had a good title to the slave in controversy.