13 Ala. 222 | Ala. | 1848
The main question involved in this case is, whether the sale from Caldwell to the plaintiff below, can be sustained, or whether it amounts to a transfer of a chose in action, and is therefore void. The question is one of importance, as frequently connecting itself with the business transactions of the community, and has received a careful investigation. It appears, both from the bill of sale, and the proof, that at the time of the conveyance from Caldwell
Several decisions of this court have been made upon this point. In Goodwin v. Loyd, 8 Porter, 237, the plaintiff purchased certain slaves from one who had title, but who, at the time of the sale, was out of possession. The party in possession, and from whom .the plaintiff’s vendor derived title, claimed that he had merely loaned them to the plaintiff’s vendor, and the question was made, whether the plaintiff could, under such a state of facts recover. The circuit court held, if the plaintiff’s purchase was absolute, and bona fide, he had a right to recover, notwithstanding the defendant may have had wrongful possession of the slaves at the time of the sale to the plaintiff.
This court, upon the authority of Stedman v. Reddick, 4 Hawkes’s Rep. 29, and Stogdale v. Fergate, 2 Marshall’s R. 136, reversed the decision of the circuit court, and, dissenting from the opinion of Judge Story in the case of the brig Sarah Ann, 2 Sumner’s Rep. 206, determine, that the plaintiff had purchased a right of action, which by the common Jaw was not assignable, and which he could not assert in his own name. The question, however, is left open, “ as to whether cases may not exist, in which the act of a mere trespasser, or wrong-doer, would operate no change of possession.” The same point again came before this court in the subsequent case of Brown v. Lipscomb, 9 Porter’s Rep. 472, and the additional question was raised, whether a possession of defendant, acquired by the trespass, .or fraudulently, operated to change the right of the owner, into a chose in action, so as to deprive him of the power to sell the slaves. The court say, “ If an owner of a personal chattel, is not in the actual possession, but it is withheld by another, and he is ignorant of the fact, and under such circumstances, parts with the title, it is conceived that his purchaser would succeed to his rights; but if the owner is dispossessed by one, bona fide
In Weir v. Davis & Humphries, 4 Ala. Rep. 442, the rule laid down in Brown v. Lipscomb is explained, and enforced, and it is held, that, although a purchaser of a slave from an administratrix at private sale, took no title, yet having bona fide purchased, and paid for the slave, it was not, while in his possession, subject to be levied on by execution against the estate, which the seller represented. £< The sale,” it is said, ££ is illegal, and passes no title, yet the purchase money was received, and appropriated by the administratrix, in due course of administration. In equity, the purchaser could charge the slave with the payment of the sum which he has paid into the estate, and which has been appropriated as above stated. In the case of Dunklin v. Wilkins, 5 Ala. Rep. 199, and Foster v. Goree, Ib. 424, this court re-affirm the decision of Brown v. Lipscomb, and in the first case, decide, that the conversion of a chattel must be known by the owner, to render a sale by him inoperative. See also Strong v. Strong, 6 Ala. Rep. 345; Carlos, use, &c. v. Ansley, 8 Ala. Rep. 902; Horton v. Smith, Ib. 73.
In Ansley v. Carlos, it is held, the mere fact that the defendant set up a hostile claim, was not sufficient, but that the
The claim of title aside, the defendant stands in the attitude of a bare trespasser. Can he be allowed to avail himself of force, any more than of fraud, to defeat the rights of the plaintiff, by depriving Caldwell, his vendor, of his free agency in disposing of the slaves ? Is it true, that if one by brute force, or by felony, wrest from me my property, he thereby acquires a title paramount to my bona fide assignee ?
But without extending this opinion, it is clear from what has been said, the charge given by the court, was entirely correct, and conforms to the views here ascertained, and also that the court very properly refused to charge the jury, that the plaintiff could not maintain the action in his own name under the bill of sale, but as the adverse possession, and bona fide assertion of claim, was a matter for the jury, as was decided in Brown v. Lipscomb, supra, the court should have given, as asked for by the plaintiff in error, the second charge, which refers the adverse title to the jury. See also Hall v. Dewey, et al. 10 Verm. Rep. 593; Stephens v. Dewing, 2 Aik. R. 112. The court in substance gives the charge asked, in a manner calculated to enlighten the jury, but the rule is, that when a charge that is proper is prayed to be given, the party has a right to insist upon it as asked, and the subsequently giving a charge the same in substance, will not cure the erroneous refusal. Clealand v. Walker, 11 Ala. R. 1059.
Let the judgment be reversed, and the cause remanded.