2 Mo. 32 | Mo. | 1828
delivered the opinion of the Court.
This was an action of trespass, &c., under the statute brought by Milly the appellant, against Smith the appellee, to establish a right to freedom. The appellee pleaded the general issue. Judgment was entered for the appellee, from which the appellant appeals to this Court. The facts proved at this trial are, that David Ship-man, a resident of Kentucky, owned and was in possession of the appellant as a slave; that on the 17th October, 1826, while residing in Kentucky, he executed a deed to said Smith, of which a copy is here given, viz: “ This indenture made this 17th day of October, 1826, between David Shipman of the one pait, and Stephen Smith of the other part, witnesseth : that the said David Shipman, for and in consideration of the sum of one dollar to him in hand paid, the receipt of which he doth hereby acknowledge, hath granted, bargained and sold, and by these presents doth convey unto the said Stephen Smith, and his heirs forever, a tract of land in Shelby county, on Guess’ Creek, containing 26 acres, upon which said Shipman’s grist and saw mill now stands; also, a negro man named Moses, about 30 years of age; one woman named Milly, about 25 or 6 years old; one child called David, about 18 months old; Harry about 16 years; Bill about 12 or 13 years old; Sarah about 27 years old;
The deed is signed by both parties. This instrument of writing was recorded in Shelby county, Ky. That soon after the execution of said mortgage, said Shipman being greatly embarrassed, took the said Milly with several other of his slaves, and secretly ran away with them to Indiana: that in Jefferson county, in the State of In-(38) diana, he executed a deed of emancipation to said slaves, of whom said Milly then present was one, and acknowledged the same before a Justice of the Peace of said State. This deed bears date 3d October, 1826, but was acknowledged on 30th of same month; ,that immediately afterwards, said Shipman carried said Milly to Peoria county, in the State of Illinois, where he said Shipman settled, hired a farm, stocked the same and declared that he intended to reside there permanently, and has ever since resided there and kept Milly there; that said Milly resided there with him from October or November, 1826, till some time in May, 1827, at which time the defendant came thither and took said Milly secretly away against her etpisent, and the consent of said Shipman, and brought her to St. Louis, where the present suit for freedom was commenced; that after said Shipman had carried said plaintiff to Indiana, said Smith had paid for him $632 54 on executions which the Sheriff had against him for some of the debts above mentioned in said mortgage. This money' was paid after the execution of said deed of emancipation; that said Smith never had possession of said Milly till May, 1827, when he removed her from Illinois, as above
The Circuit Court having refused to give several instructions prayed for by the plaintiff, proceeded to instruct the jury, that if they believed from the evidence, that said Shipman executed said mortgage for a valuable consideration to s'aid Smith, that said Smith became in virtue thereof the legal owner of said Milly, and that said Milly could not be free by the residence in Indiana and Illinois, in virtue of the ordinance of 1787, unless it appeared to their satisfaction that Smith assented to the removal of said Milly ; to which last instruction the plaintiff’s counsel excepted, and also excepted to the refusal of the Court to give the instruptions prayed by the plaintiff, which it is not considered material to notice at this time.
This Court is not disposed to view the deed of emancipation with much favor. The plaintiff cannot he regarded as a purchaser for a valuable consideration, a slave 4Jhaving nothing to give; but it has often been decided by the Courts of the late Territory of Missouri, and of this State, that slaves carried into Illinois with a view to residence, and staying there long enough to acquire the character of residents, do by virtue of such residence become free. The plaintiff in the Circuit Court made out a prima facia case of freedom ; hut if Smith he the legal owner, and did not connive at the removal of the plaintiff from Kentucky to Indiana and Illinois, then we are of opinion that the plaintiff did not acquire her freedom by such residence.
This mortgage, as it is called, was made in Kentucky, and ought to receive in our Courts, such construction as it would there receive. What construction would there be given to it, cannot be judicially known to this Court. If, as the Circuit Court decides, Smith became, by virtue of the instrument of writing executed to him by Shipman, the legal owner of Milly, and if, as it has been contended in argument, the recording of that instrument, is, by the statutes of Kentucky, notice to all persons, of Smith’s right, seme evidence of the laws of Kentucky ought, we think, to have been preserved on the record. If we are to construe the writing according to our own laws, (which must govern us where the foreign law is not proved,) we are inclined to think Shipman is the legal owner; since, by the contract, the right of possession remained in him for an indefinite time, and Smith had only a lien on her to secure the payment of debts; which lien Shipman might, at anytime, have defeated, by paying those debts.
The judgment of the Circuit Court is reversed, and the cause sent hack for further proceedings.