Roberts v. Stoner

18 Mo. 481 | Mo. | 1853

Scott, Judge,

delivered the opinion of the court.

1. The thirty-third section of the act concerning the revised statutes, approved 21st March, 1835, enacts that all other acts of a public, permanent and general nature, in force at the commencement of the present session of the general assembly, and not herein required to be continued in force, shall be repealed on the first day of December next, except as in the next section specified. The act concerning dower being one of the “ other acts” within the meaning of this section, and not being one of the acts excepted in the following section, was repealed on the first of December, 1835, and consequently the act concerning dower, of the code of 1835, took effect on that day.

2. Although the power of a court of equity to rule a tenant for life of slaves or other property, to give security that the property shall be forthcoming at the death of the tenant for life, is to be exercised, not as a matter of course, but of sound-discretion, according to circumstances, jet this case fully warranted the interposition of the court. There was a sale of a portion of the slaves and the assertion of an absolute interest in them.

• 3. Instead of entering a judgment or making an order against Stoner for the payment of the $400, the sum realized from the sale of the two slaves, whose 'locality is unknown, he should have been required to give security for their forthcoming at the termination of his estate. If he declines this, then the sum received may be required to be paid down, and the court may have it secured for those in reversion. A writ of sequestration is a process for contempt, used by chancery courts to compel a performance of their orders and decrees. When there is a decree against a party-for the payment of money or to do any other act, this process cannot issue until he is put in contempt, or it is shown that process cannot be served. When an attachment is served and a party refuses to comply, he is then in contempt. It would seem that a sequestration, merely to compel the' payment of money, cannot now issue, as imprisonment for debt is abolished. As process against the body, for the non-payment of a debt, cannot now issue, there would be no means of putting a party in contempt. These remarks are only intended for decrees for the mere payment of money. When the decree is for the performance of acts within the power of a party, he may be compelled by sequestration. Such a process may have been proper, if it had been shown that Stoner had the money in his possession and refused to deliver it up. This manner of enforcing decrees is now very unusual, since the statute has given the writ of execution to courts of chancery to carry into effect their decrees. It is necessary, whenever the writ issues, that the court should name the sequestrators who are to take charge of the defendants5 estate. Bacon, tit. “ Sequestration.55 Hosack v. Rogers, 11 Paige’s Ch. R. 604. All those who now hold any of the dower slaves, should have been made parties to the proceeding, and should have been required to give security. It matters not whether they purchased with or without notice, as the right of the plaintiffs is a legal one and they purchased at their peril. They are in the same predicament as those who purchase the property of another from one who has no right to it. It does not appear from the record sent up, that there is a final determination of this suit, as there is no order or decree for or against the other defendants.

That the decree may be modified, it will be reversed and remanded,

the other judges concurring.