Newell v. Newell, 34 Miss. 385

Newell v. Newell

34 Miss. 385 | Miss. | 1857

TTsheR, J.,

delivered the opinion of the court.

This was an action of replevin, brought by the plaintiff below, in the Circuit Court of Jasper county, to recover certain slaves, alleged by the declaration to have been wrongfully taken by the defendants, and by them wrongfully detained from the plaintiff.

The declaration was demurred to, on the ground that it alleges both a wrongful taking and detention of the slaves; and that the affidavit and writ allege only a wrongful detention. So far as the plaintiff’s right to recover the slaves is,concerned, it is immaterial whether there be a wrongful taking, in the first instance, or merely a wrongful detention. His right to recover the property, in either case, would be the same. But, in regard to the damages to be recovered, a different question would be presented. The damages, in case of a wrongful taking, which in its inquiry might involve many collateral questions of tort and circumstances of aggravation, might be much greater in amount, than the damages which could be recovered in a case merely of the wrongful detention of the property. Besides, the judgment in the present and similar cases, where the property is replevied by the defendants, and the judgment is against them, must be rendered on the bond against both *400the principals and sureties; and the covenant being for the payment only of such damages as were occasioned by the wrongful detention, and not for the wrongful taking, no judgment could be rendered for the damages in such case. But, as the plaintiffs’ declaration was good as to the slaves or their value to be recovered, and defective only as to the damages, the demurrer, extending as it did to the whole declaration, was properly overruled. The affidavit being the foundation of the action, and the clerk’s authority for issuing the writ, is of course part of the record.

It is next said that as no wrongful taking is established by the evidence, and it appearing that the slaves were, with the consent of the plaintiff, delivered to Darrell T. Newell, one of defendants, and no time being stipulated for the return of the slaves, his possession could not become wrongful until a demand made by the plaintiff, and a refusal to deliver the slaves by the defendant.

As a general rule, this position is correct, when the defendant asserts no title in himself. But in this case, the defendant setting up title in himself, the demand would have been refused if it had been made; and the defendant cannot, therefore, complain of that which, under his own showing, could not injure him nor affect his rights.

Again, it is said that the court below erred in ruling out the evidence to show that the parties entered into an agreement to submit their respective claims to arbitration; that the arbitration was accordingly had, and the slaves, under the award, divided equally between the parties. This evidence was relevant to the issue, and should have been admitted.

It is again said, that the instructions of the court, relating to the deed under which the defendant claimed title, were erroneous.

. The defendant claimed under a deed of gift made in 1826. This deed recites, among other things, that the defendant is the son of the plaintiff,' and that the slaves therein named were given in consideration of natural love and affection, and that one of the slaves had been delivered in the name of the' whole. This deed was by the plaintiff duly acknowledged and placed upon record in the proper office. It appears that the defendant was then about thirteen years of age. As to the other proof on this subject, we will forbear the expression of an opinion. But if it be true that the plain*401tiff’s object in executing tbe deed, and placing it upon record, was to vest an apparent title in tbe defendant, for tbe purpose of hindering, delaying, or defrauding bis, tbe plaintiff’s, creditors, tbe defendant being of tender years, and therefore innocent of the fraud, he, tbe plaintiff, cannot be permitted to question tbe title passing under tbe deed. Tbe deed having served the purpose of defeating tbe claims of creditors, tbe plaintiff cannot deny either its delivery or tbe title of tbe defendant, unless he can show a title acquired in some other mode.' Supposing these facts to be true, both delivery of the deed and of the property must be regarded as facts established, for the reason that a party cannot allege or take advantage of his own fraud.

But as a question may arise upon the effect of the deed, supposing no fraud to have been intended by the grantor, we will notice this point. As a general rule, a gift is never complete without a delivery of the property ; but where a party acknowledges, under his hand and seal, that a - delivery was in fact made, he will be estopped to deny the fact thus admitted, especially when the deed has been regularly recorded.

It is also said that the court erred, in admitting the plaintiff below to read as evidence his own answer to a bill filed by the defendant, touching the slaves in controversy. It appears that the defendant, about the year 1847, filed his bill in the Superior Court of Chancery, setting up a title to the slaves in controversy, under the deed of 1826. The plaintiff in this action answered that bill, and the case was finally dismissed for want of prosecution. The decree not being one settling the rights of the parties, neither party could use the record for this purpose. Nor could either party be permitted, in another controversy, to avail himself of his own statements in the pleadings in the chancery court as evidence. We, therefore, think that the court erred on this point.

The case may be made to turn, upon another trial, on the deed of gift of 1826, the arbitration said to have been entered into between the parties, and the Statute of Limitations, if insisted on by the plaintiff. As all these questions must depend, more or less, upon the testimony to be introduced on another trial, we give no opinion as to the facts in the record.

Judgment reversed, and new trial granted,