| Miss. | Dec 15, 1853
delivered the opinion of the court.
This bill was filed by the plaintiff in error, Nancy A. Johnson, whilst a minor, by her next friend. Pending suit, she intermarried with James Johnson, who, upon petition,' was made a party to the suit. The bill wa§ filed to recover possession of certain slaves held adversely by the defendants, and for an account of the hire of said slaves.
The title set up in the bill, rests upon a gift made to complainant, Nancy Ann Johnson, by her brother in 1839. The material question in the case is, whether that title was valid or not. The evidence in reference to complainant’s title is clear and distinct, and, if credible, leaves no room to question its validity. From that evidence it appears, that Tilford M. Alvis, by whom the gift was made, purchased the slaves in contro
No consideration was necessary to support the declaration; and the delivery made to the father under the attendant circumstances, was doubtless sufficient to vest the property in complainant, so far, at least, as the title of Tilford M. Alvis was concerned. The slaves remained in the possession of the complainant or her father, down to the time when they were clandestinely taken from his possession, in Shelby county, Tennessee, whither, in .the mean time, he had removed, by the defendants, who brought the slaves within the State of Mississippi.
The defendants answered, and made their answer a cross-bill. They alleged that the elder Alvis negotiated the contract for the purchase of the slaves, and paid about seven hundred dollars of the purchase-money at the time of the sale, and that, at his request, the bill of sale was made to Tilford M. Alvis. A note was given for the remainder by him, in which the elder Alvis joined, and who is alleged to have been the real purchaser and owner of the property. They aver that the title was made to Tilford M. Alvis, for the purpose, on the part of old Alvis, to screen it from his creditors.
The defendants defend their possession by virtue of a mortgage, alleged to have been executed by the elder Alvis in 1840, upon the slaves, to secure the portion of the purchase-money then remaining unpaid. They pray an account to be taken, and that the mortgage may be foreclosed, the property sold, and the proceeds applied to the payment of the debt due to James Nations secured by it.
The complainants in their answer to the cross-bill admit the execution of the mortgage by old Alvis; but aver that the mortgagor had no title to the slaves; that their rights could not
In reference to this transaction, the elder Alvis testified that he was indebted to James Nations, in something over three thousand dollars, and that in January, 1841, he gave Nations a mortgage on several slaves, his own property, to secure the debt. That, afterwards, at his solicitation, he gave Nations a further mortgage on the negroes which belonged to his daughter, of whose title he was informed by witness, who told him that he had no right to execute the mortgage, and that it would be unavailing.
This witness further testified, that, subsequently, he had a settlement with said Nations, who gave back one of the negroes of witness, which had been previously mortgaged; that Nations denied that he then had the mortgage for the negroes of complainant, and said he had lost it; and that he then received from, him the paper for which the property of his daughter had been mortgaged. The note made by Tilford M. Alvis and this witness for the remainder of the purchase-money of the slaves, was filed as an exhibit to the answer to the cross-bill.
The testimony of Wyatt, the only witness examined by the defendants, is in conflict with the statements of Alvis. We should judge that neither witness was entitled to much consideration. We think, however, the preponderance of the evidence is on the side of the complainants, as defendant’s answer admits the delivery of the said note.
Upon this state of facts, the vice-chancellor rendered a decree dismissing the bill.
It is manifest from the whole evidence, that the elder Alvis had no title or interest in the slaves, which was susceptible of being transferred by his deed; for, unquestionably, the title of the complainant derived from the gift to her, was valid as to him. Hence, no claim could be founded upon the mortgage relied on by the defendants. If the slaves were liable for the unpaid purchase-money, it was not by virtue of any lien created by the mortgage deed. If they were subject at all to the payment of defendant’s claim, it was upon the sole ground that
But wre think the evidence scarcely sufficient to authorize the conclusion that there was fraud in the purchase of the slaves. It is true, there are some very suspicious circumstances connected with it. And if our decision depended alone on the question whether there was fraud in that transaction or not, we should hesitate to say that it was a fair one. But there is another point, in regard to which the evidence is in favor of the complainants. According to the weight of evidence, the debt claimed by the defendant James Nations, was discharged in 1841. As we have seen, the elder Alvis proves that he settled with Nations, who delivered to him the paper for which the negroes of Mrs. Johnson had been mortgaged. This is admitted in the answer. It is not to be credited, that a party holding a note, and who exacted security by mortgage, would, upon the execution of the mortgage, deliver into the hands of his debtor the evidence of his debt, and which, in the possession of the mortgagor, would be primá facie evidence that the mortgage was discharged.
Upon the whole view of the subject, we think the complainants should recover the slaves, and that they are entitled to an account for their hire during the time defendants have held possession of them. The decree of the vice-chancellor must,