61 Tenn. 25 | Tenn. | 1872
delivered tbe opinion of tbe Court.
Tbe plaintiff, Burdett Ashton Lewis, as tbe administrator of Wm. W. Wilkins, deceased, brought this action in tbe Circuit Court of Davidson County ' against tbe defendant,- upon tbe several promissory notes executed by tbe defendant on tbe 10th day of January, 1860, and due and payable at .one, two and three years from date, each for tbe sum of thirteen thousand five hundred and fifty dollars. - In the Court below tbe verdict and judgment were against tbe defendant, from-which he has appealed in error.,'
These notes were in tbe form following, and only varying in time of maturity:
“|13,550. Ashton, La., Carroll Parish,!
January, 10, 1860. j
“On tbe 10th day of January, A. D., 1861, I promise to pay to tbe order of tbe legal representatives of tbe succession of William Webb Wilkins, the sum*28 of thirteen thousand five hundred and fifty dollars, for value received, with six per cent, per annum interest, from date until maturity, and in case of default, with eight per cent, afterwards till paid; payable at the Citizens’ Bank of Louisiana, New Orleans. B. C., due 10th and 13th January, 1861.
“¥m. W. Woodfolk.
“Indorsed across the face, ‘Ne varietur,’ Parish of Carroll, La., Jan. 10th, 1860.
“J. W. Draughes, Recorder.”
For the proper apprehension of some of the de-fences relied on, it is necessary to state. that William Webb Wilkins died in the county of ’Henrico, and State of Virginia, leaving a last will and testament, in which his property was devised and bequeathed to his widow and children, some of the latter being minors. This will was duly proven and recorded in said county of Henrico, and the executor therein named having renounced the trust, the plaintiff, Bur-dett Ashton Lewis, was duly appointed and .qualified as the administrator of said estate, with the will annexed.
At the time of his death, William Webb Wilkins was the owner of’ one-third interest in two plantations, with a large number of slaves upon each — the one called Welton, in the Parish of St. James, and the other called Ashton, in the Parish of Carroll, and State of Louisiana. This property he owned as tenant, in common with James A. Seddon and James
In pursuance of this authority, the plaintiff proceeded to the State of Louisiana, where, upon an appropriate judicial proceeding, the said last will and testament was “ordered to be registered and executed according to law.” A proceeding was thereupon instituted in the Courts of Louisiana, on behalf of the legatees and devisees of William Webb Wilkins, in which the said Seddon and Morson joined and concurred for the sale of said property, which Avas accordingly sold. In reference to this proceeding, a full and certified transcript whqreof is before us, it is only necessary to say that, for the purposes of this case, it must be taken as valid, regular and conclusive upon the parties, as its validity has never been impeached in any appropriate form or forms of proceeding; that it stands in full force upon the judicial records of the State of Louisiana, and is entitled to “full faith and credit” in the Courts of this State. At the sale- of the Ashton estate the land,
The deed also names the slaves, ninety-eight in number, thus sold, giving their ages respectively, and mentions the personal property, consisting of mules, hoi'ses, and other live stock, provisions, and agricultural implements, all of which property, movable and immovable, was sold in bulk, as a whole, and bought by the defendant, who was placed in possession, and
“Now, in order to secure the full, final and punctual payment of each and all of said notes, and all interest, cost and charges that may accrue on the same, according to their tenor, and according to the true interest and meaning of this act, the said Wm. W. Woodfolk hereby expressly declares that he did and does hereby specially affect mortgage and hypothe-cate all of the foregoing described property, hereby binding himself not to sell, mortgage, donate, alienate, or in any other way encumber the said property to the prejudice of this act of mortgage.”
And it recites also, in another clause, the fact of the vendor’s privilege and special mortgage thus reserved and given on the land and slaves, with no warranty of the slaves, except as to title. This deed was signed by the Sheriff, and by the defendant also, and was executed and delivered as an “authentic act,” according to the laws of Louisiana, and was duly recorded in the Keeorder’s - office, in the said Parish of Carroll.
The “Wilton” estate was sold under the same proceeding, during the following month, and was purchased by the surviving partners, Seddon and Morson, • who paid the cash payment due to the succession of Wilkins to the plaintiff, and delivered to him the notes for the payments deferred, which payment and
It appears in proof that the defendant owned a plantation very near to Ashton; that he examined things at Ashton very often, and it was well known long before the sale that he would be a bidder. A witness states that, on the day of sale, the negroes bought by the defendant were all present in a row. The Sheriff explained that it was a Sheriff’s sale for division, by order of Court; that persons or purchasers must look at and examine thé property .for themselves; that no warranty would be given, except as to title; that the sale would be of all the property then present. “ in bulk; ” that the advertised list of negroes was not accurate, but the negroes to be sold were all present, and could then be examined. “I saw Mr. Woodfolk,” continues the witness, “walking among, talking with, and examining the negroes. The bidding soon commenced, and the property was cried off to Mr. Woodfolk. I, very soon after the deed was read and signed, left the place and returned
The,v Recorder, who passed the deed to the defendant, testifies as to the perfect regularity of all the proceedings, and states that the clause, de non aliendo, in the deed, only prevented a sale of the property by defendant to the prejudice of the sellers; that he could always * sell, but in the sale must provide for the payment of what he owed on the property; and indeed, in the opinion of the Court, such would necessarily be the legal construction of the instrument. This witness also says:
“I recollect distinctly that Mr. Lewis, the administrator, explained to Mr. Woodfolk that there' were three slaves on the list sold in bulk, that were not on the place, but that there were others, not on the list, to a sufficient number, that would amply supply*35 their places. The negroes were drawn up in a line, and were carefully inspected by Mr. Woodfolk, who expressed himself not only entirely satisfied, but very much pleased. All the defects that any of said ne-groes had, were carefully explained to him, and he expressed himself delighted with his bargain, after the sale was over.”
Another witness states that he was the overseer and manager of the Ashton estate at the time, and had been for a dozen years. “The sale was at a time when cotton property was thought very highly of. The defendant had a plantation very near. He talked to me about buying the Ashton estate a great deal more than to anybody else. He visited the place many times. He measured carefully, With surveyors’ instruments, the different portions of the place, to ascertain for himself how much was cleared, and-how much was wood-land. He looked at the negroes many times. He talked with me and with them about the quality of different ones. He talked . with them about what they could do, about their disposition to be bought by him; and he acquired as perfect a knowledge of the land and negroes, and the other property on the place, as he well could do, and when the sale took place, on the 10th of January, 1860, he knew more about the place than anybody, but myself, and a great deal more than any of the proprietors, who all lived in Virginia.”
Mr. Seddon had instructed the witness to bid for the place for himself and Mr. Morson, and he did so,
“ Before the ■ sale, when • I saw the advertisement, I observed the names of Mary, Anny and Fanny upon it. These women had been sent, long before, to another place of the same proprietors; but others had been brought from that place to Ashton. The negroes at Ashton were more in number than were advertised. I explained the matter before the sale, and Mr. "Woodfolk knew all about it when he bought; knew what negroes he was buying, and got what he bought, and was very much pleased, until the great fall .in property, when the .troubles' began in 1861. Zenar, or Lizzena, was sold and delivered.”
In the original petition for the sale, as presented to the Court, there is a general description of the various tracts comprising the “Ashton land,” and among others, is the southwest quarter of section 10, Town 23, Range 12, east, as containing one hundred and fifty-one and. fifty-six one hundredths acres, purchased by the said firm of Morson, Seddon and Wilkins, of Hypolite Pargond, by act of sale passed in the city of New Orleans, before Hilary B. Cenas, a
The defendant introduced upon the trial a plot of the lands constituting the “ Ashton estate,” and proved that the half of section 10, and the quarter of section 9, are both upon said plot, included within the boundaries of the Ashton estate; and that this plot was exhibited at the sale as a description of the lands; that the half of section 9 was owned by Clo-man, and Avas to be exchanged for the southwest quarter of section 10; that the latter is better land than the half of section 9, one acre of it being worth two of the half of section 9. It was shown in defendant’s testimony also, that several of the ne-groes were unsound; and the pecuniary damage to defendant by such unsoundness Avas also shown; and it was also shown that, during the late civil war,
We have thus stated all the facts necessary to be considered in disposing of the several legal questions presented in the views we. have taken of the case. And here, at the threshold, we had as well dispose at once of all defenoes which have for their foundation the existence or hypothesis of fraud or misrepresentation in these transactions. For it is certainly true, that if fraud had intervened to the defendant’s injury, the law Vill interpose for his indemnity in this litigation, to the uttermost farthing of the damage done. And if this element does not exist in the casé, it is equally clear that he must stand or fall upon the contract he has made, and upon the principles of law by which that contract is to be construed and expounded. It is a fundamental rule of
We are of opinion that, upon these grounds, the defendant has failed to make out his defence. The defence under the doctrine of recoupment is well recognized in this State. It was originally a right of reduction from the amount of the plaintiff’s recovery, on the ground that his damages were not really as great as he alleged. The modern defence of recoupment is not presented as a matter of set-off, arising on an independent contract; but for the purpose of reducing the plaintiff’s damages, because he has not complied with the cross-obligations arising under the same contract. Sedg. Meas. Damages, 496.
It seems to be well settled that the defendant may recoup the damage sustained by the fraudulent misrepresentations of the plaintiff as to the value, quality or quantity of land, if such damage be susceptible of computation. And the doctrine has sprung from the policy of the law in adjusting all controversies between the same parties in one suit. Sedg.
The record fails to disclose - any misrepresentation in this case as to the Cloman land, or that plaintiff in error is likely to be disturbed '• in the- possession of an acre of the Ashton plantation as bought by him. The sale was in gross, and not by the acre, and the estimate, 1800 acres, “more or less,” under general, and not specific boundaries. It- was a sale per aver-sionem, as it is denominated in Louisiana. • And according to the law of that State, “when the land sold is described in the act of sale, by reference to adjoining tenants, and sold from- boundary to boundary, no action can be maintained for a diminution of pi'ice, on account of deficiency in quantity.” Zevengue v. Williams, 15 Ann. R., 76; Barrow v. Miller, 26 Ann. R., 114; Walk. Dig., 405.
But this defence may be disposed of on other and different grounds. There being no eviction, no misrepresentation, and no proof before us upon which any Court could act, that the' defendant is not now in the actual enjoyment of the Ashton estate as described in the petition for a sale, wherein the exact status of this Cloman fraction was especially given, we see no ground upon which a claim to recoupment could rest. And in respect to the necessity for an eviction, even where there is a warranty, we do not
And all these questions were fairly submitted to a jury upon a correct charge of the law, and we see no reason to question the correctness of their verdict. But other questions remain. It is insisted on behalf of the defendant that this action can not be maintained by the plaintiff as the legal representative of the succession of William Webb Wilkins; that he is, in fact, not the payee of the notes under the laws of Louisiana. The declaration is in the name of Burdett Ashton Lewis, administrator, with the will annexed, of William Webb Wilkins, and recites the execution of the notes; that they were payable to the legal representatives of the succession of Wm.
We are of the opinion that, for the purposes of this action, the plaintiff is the legal representative of the succesion of Wm, Webb Wilkins. In any view, the objection is more formal than substantial, and relates more to the remedy than the right. Under the power of attorney he had .a right to demand and receive , the notes as the representative of his constituents, who were the instituted heirs of the succession of Wm. Webb Wilkins. The transaction was for the purpose of transferring the estate to "Vir.ginia, where he was technically its legal representative. The notes were delivered to him as such, and he was described as such, and as such was recognized by the Courts of that State. He is the holder of the notes, and has deraigned. his right to hold them, through his power of attorney and the judicial record from Louisiana; and this being so, he
Another defence relied upon, and which arises upon the pleadings is, that so far as the slave property is concerned, the consideration of these notes has totally failed, by reason of the abolition of slavery. A clause of the Constitution of Louisiana and certain judicial rulings of that State are relied on to defeat this action to the ' extent of' the value of these slaves, the effect of which is, that contracts of this nature can not be enforced in the Courts of Louisiana. We might very summarily dispose of this defence upon the ground that prior to this change in the fundamental law of Louisiana, the defendant had voluntarily changed the legal status of this property by its removal to another State, where it, in fact,' perished upon his hands, and that by this conversion of the property, his own legal obligations in regard to it were also changed;, but without reference to that view of it, we think the adjudication of this question against the defendant may safely repose upon another and different ground. Under the repeated adjudications of this Court as to contracts of this character, made in this State, such a defence is unavailing. Our Courts having recognized in its fullest extent the maxim drawn from the civil law, that “ after the bargain is completed, the purchaser stands to all losses,” res peril suo domino.
We have already stated the general principle, that
In a case in Louisiana it was said that, by the comity of nations, a practice has been adopted by which Courts „ of Justice examine into and enforce contracts from other States, and carry them into effect according to the laws of the place where the transaction took place. “It is subject to the exception that the contract to which aid is required should not, either in itself or in the means used to give it effect, work an injury to the inhabitants of the country where .it is attempted to be enforced.” Ohio Ins. Co. v. Edmondson, 5 La. R., 295. “In cases turning,” said Mr. Justice Bart, “upon the comity of nations, comitas inter communitates, it is a maxim that the comity can not prevail in cases where it violates
Now the change in the organic law of Louisiana, which in its terms annuls and destroys this contract and forbids any remedy for its enforcement in that State, was effected long after this contract was made. At the time of the contract, and according to the lex loci at that time, the contract was a valid and binding. obligation to pay' for these slaves. There was a warranty then of the title, that the title was then good in these vendors; .there was no warranty against the vis major or the act of the government, by which the then existent title might be destroyed.
Lord Ch. J. Denman said: “My brother Weight-man asked, during the argument, what would have been the result, if at the end of a year the services had been determined by the act of God? And to this no sufficient answer was given. The plaintiff’s right vested when the bargain was made. The subsequent interference of the Colonial Legislature does not prevent his recovering what was then- stipulated for.”
Williams, Justice, said: “The whole question is, who shall bear the loss occasioned by the vis major ? And that depends much upon the question, who was proprietor when the loss was occasioned?” 6 Adolph; 2 Ellis, 989.
This doctrine, however, is so firmly engrafted 'upon . the common law, and is so consonant with justice and sound reason, that it will scarcely be questioned now. It has been sought to vary it in its application to contracts for slaves, on account of the alleged immorality of slavery; that there was an inherent vice in the very nature of slave property, causing the title to a slave merely to be tolerated, but without any obligation on the part of the government to protect it.
It is sufficient to say, in reference to this proposition, in the .words of an ancient maxim of the common law, novitas non tarn utilitate prodest quam novitate perturbat; that it is in direct antagonism to the
A question is made upon the validity of the ancillary attachment, which was issued and levied in this case in aid of the action already begun by the service of the ordinary summons. The petition for the attachment, which, with the jurat attached, is, in legal effect, the affidavit required by law, seems in substance to conform in every particular to the requirements of the rule repeatedly announced by this Court, and the grounds of exceptions are that these are not formally repeated in the writ, and that no publication is shown to have been made. The petition alleges the institution of suit in the Court from which the attachment is sued out,' the nature of the debt sued on, that the same is due and unpaid, That the defendant has fraudulently disposed of his property, or is about to do so, and prays for an attachment ancillary to the suit, “commenced as aforesaid.” The writ is in the form prescribed
The leading process in this case is the original summons. It was served upon the defendant, and brought him into Court, where he appeared and made ■ defence to the original action. Under this state of facts, the absence of proof of publication can not be held fatal to the proceeding, the ancillary attachment, unlike the' original attachment, being subsidiary process merely, and its only office being to hold the property attached for the satisfaction of the judgment to be recovered in the original action. It does not bring the party into Court. 1 Heisk., 26. Before the Act of 1843, ch. 29, the ancillary attachment was unknown to our law, and no form was prescribed for the writ by that Act. The Act of 1794, ch. 1, § 24, had prescribed a form for the writ in cases of original attachment, and this form has been brought into the Code as the only form prescribed for the writ in cases other than judicial attachments, which latter class are founded upon the return of the Sheriff upon our original summons. It is insisted that this'form was prescribed for the original and ancillary writ alike. This form is given and prescribed in the chapter of the Code which authorizes and regulates the remedy by attachment generally, which chapter embraces the only auth&rity for the ancillary writ, and it is followed by a positive provision that “no objection will lie to the form of the
The form of the writ in this case conforms to that precedent, except in the superadded words, that it is “ ancillary to a suit at law heretofore commenced.” And this was the state of the statutory law at the time of the inception of these proceedings. But it is insisted that the attachment is a nullity, because the writ does, not repeat the words _ of the affidavit as required by certain rulings of this Court in divers reported and unr.e-ported cases, adjudicated both prior and subsequent to the adoption of the Code, and we are called upon to review these decisions, and to declare the effect of the legislation referred to upon this question. It is certainly true that the Legislature- has a right- to prescribe the rules and precedents of practice in such cases, and if this be done the Courts can not depart from them, except for some extraordinary reason involving the repugnance of such rules and precedents to the organic law.
The writ of attachment is an extraordinary remedy, given to the creditor against his fraudulent or non-resident debtor, and while the laws are to be liberally construed in favor of the remedy, yet the consequences are of such a serious and harrassing character to the defendant himself, in the seizure and impounding of his property, that every expresss requirement of the law must be observed- Thus, an oath in writing is required, which, with the bond, is filed in Court as part
“We have had occasion,” say this Court in an early case, “to express our sense of the importance of'adhering with some uniformity to decisions when once made, deeming fluctuation of judicial opinion an evil of such - magnitude as not to find its equipoise of good in any fancied or real approximation to greater correctness.”
The attachment in this case is null and void, and will be discharged. In all other respects the judgment will be affirmed.