10 Miss. 388 | Miss. | 1844
delivered the opinion of the court.
This proceeding was instituted, for the purpose of charging the defendants, as executors de son tort of one Jones, against whom, in his lifetime, the plaintiffs had recovered a judgment for 91400.
No question has been raised on'the pleadings; but the parties have presented the case on its merits, and so we shall consider of it.
By the first bill of exceptions it appears, that the plaintiffs proved that the defendants sold thirfy-one negroes, which were the property of Jones in his lifetime, for the sum of $9650. The judgment of the plaintiffs against Jones was also read ; it was recovered on the 30th of November, 1839. To justify the
On this state of facts, the plaintiffs’ counsel requested the court to charge the jury — 1st. That if they believed the defendants paid off the mortgage executed by the decedent to them, with the effects or money of the decedent, that it was such an intermeddling with his estate, as would charge them as executors de son tort, and they must find for the plaintiffs. 2d.
The plaintiffs now assign as error, 1. That the court erred in admitting the deeds of trust to be read in evidence. 2. That the court erred in refusing the first and second charges asked for the plaintiffs, and 3. That the court erred in giving the first and second charges asked for defendant.
By adverting to a few of the leading principles laid down by elementary writers as to what will make one executor in his own wrong, and also to some of the adjudged cases which bear a resemblance to this, we shall be able to keep in view the tests by which the decisions complained of are to be tried. Acts which are calculated to induce a belief that the actor is execu
In the case of Edwards v. Harben, 2 Term Rep. 387, the decedent had made an absolute bill of sale to Harben, of certain goods to secure a debt, but did not deliver possession. After his death Harben took the goods, it having been agreed that he should take the goods and sell them within fourteen days, if the money should not be sooner paid. He was held liable, but it was on the ground lhat the bill of sale, unaccompanied by possession, was fraudulent, and void as to creditors. If he had taken possession of the goods at the lime of making the bill of sale, and Held them until the time allowed for the payment had elapsed, and then sold, there-'is every reason to believe the decision of the court would have been different, for the decision turned exclusively on the question of fraud. A similar doctrine to this was announced in the decision of the court in the case of Horsey v. Smithson, 6 Harris & Johnson, 61.
Some of the courts in the United States have gone much
In the case of Debesse v. Napier, 1 McCord, 106, the deceased had goods in the hands of a factor for sale, and other goods were about to be placed in his hands. The factor had a claim for charges or commissions on the goods. The deceased drew an order in favor of a third person for the whole proceeds of the goods, after the factor should be -paid. The order was accepted, and after the death of the drawer the factor sold the goods, and paid the proceeds as directed by the order, and it was held that he had a right to do so. This case places the question upon its true ground, as we conceive, to wit, a change of property. It was held that the order was a transfer of the goods, and divested the right of the deceased.
In making an application of these principles to the case before us, we shall depart from the order in which the errors have been assigned, and inquire, in the first place, into the decisions of the court in refusing the charges asked for the plaintiffs, and in giving those asked by the defendants.
1. Was the court right in refusing to charge the jury, that if they believed the defendants paid off the mortgage executed by the deceased to them, with the money or effects of the deceased, that it was such an intermeddling with the estate as would make them liable as executors de son tort 7 This charge seems to have been framed with a view to the language held b,y elementary writers. It may be law, and still the court pray
Second. Was the court right in refusing to charge the jury that if defendants took and sold thirty-one slaves after the death of Jones, which had belonged to him, although said slaves may have been delivered to them, and by such sale came into the possession of a sum of money, equal to the plaintiff’s demand, over and ¡^bove the amount of the mortgage, and had the money when the suit was brought, that they were liable? This charge is evidently based upon the decision in the case of Padget v. Priest, in which it was said that holding the money at the time the suit was brought, was conclusive in making the defendant liable. To the general proposition we assent, but we add this qualification; that if there be no one authorized to receive the money, then the mere act of holding the money is not of itself sufficient to make the holder liable, as executor in his own wrong. Now it does not appear that Jones appointed an executor, or that any one had administered. To whom, then, could the defendants pay it ? But the present case is distinguishable from
Third. This brings ns, in the next place, to determine whether the court decided correctly, that if the negroes were mortgaged and put in possession of defendants, to secure them against the risk they had incurred, and if they had become liable, then the holding of the property, or the sale of it, either before or after the death of Jones, was legal. This question.is fully answered by the remarks already made on the first charge refused. We have endeavored to show that the contract amounted to an actual transfer of property, subject only to be defeated by the indemnity of the defendants, and if they had been damni-fied, that then the title became absolute. We have seen, from the cases cited, that where a change of property has taken place, that a disposition of such property will not create a liability. We have also seen that a mortgage of personal property is essentially different from a mortgage on land. The mortgage passed to the defendants the title to the property, subject to the condition that Jones would save them, harmless. If he failed in this, then their title became unconditional. The charge of the court was strictly in accordance with what we have endeavored to establish as the law of the case.
Fourth. In giving the next instruction the court held that the surplus money in the hands of the defendants, should be appropriated in discharge of the deed of trust to Littlejohn, which covered a part of the property sold, and which was a prior lien to the date of the plaintiff’s judgment. As a general rule a junior lien entitles the holder to the residue of the encumbered property, after an older lien has been satisfied. In equity the junior claimant would be entitled to the surplus of money arising from a sale under the older lien. But in addition to this
Lastly. The only remaining-question is as to the propriety of admitting the deeds of trust to be read in evidence. The deed of trust from Tennessee is objected to, on the ground of a defect in the proof of its execution. This point we need not decide, since the one executed in Yazoo county is a literal copy, and proves everything that could have been established by both deeds. We cannot doubt but what it is competent for a defendant, in a controversy of this sort, to show that the property with which he is charged with intermeddling, was not the property of the estate. But suppose the counsel should be correct in saying that defendants, by receiving a conveyance on the 16th