Robinson v. Rice

| Mo. | Jan 15, 1855

Scott, Judge,

delivered the opinion of the court.

1. This is a proceeding under the 8th article of the present practice act, respecting the claim and delivery of personal property. Samuel 0. Rice is the only person complained of as committing the alleged grievance, in taking away the two slaves for whom suit is brought. This being the nature of the complaint, it is difficult to perceive why so many others were made defendants. There is certainly a misjoinder.

It has been repeatedly held that multifariousness is an objection which is not taken away by the present practice act. If the defendant, Rice, has trespassed, why keep the other parties in court, waiting the trial of an issue in which they have no concern ? The petition shows no right in Rice to take the slaves. As guardian, he had no right to sue in his own name to recover slaves belonging to his wards, which slaves had never been in his possession. Rice could not be sued in trespass as a guardian, for his own act. If he committed a trespass, he was liable for .it in his own right, and could not qualify his wrong by maintaining that he did it as a guardian. It does not appear that Rice had any claim in right of his wife. Indeed, it is not shown that he married one of Lowe’s daughters.

2. But, although it is shown that Rice had no right to take the slaves, yet, as the plaintiffs claim under James F. Clendenin, who purchased from Charles Lowe, who only had an estate in the slaves during his wife’s life, and as Lowe’s wife was dead, they had no right to recover them. There is no ground for the assumption, that Lowe was a trustee for his wife, and as trustee, was competent to convey the legal title to the slaves to a bona fide purchaser. The case of Freeman v. Freeman & Challis, (9 Mo. Rep.,) is not in point. That case only maintains that, where there is separate property settled on the wife, and no trustee is appointed, the law will make the husband a trustee. Here there was no separate property in Mrs. Lowe : there is nothing to show that any such thing was contemplated by Joab Barton. The slave was given to his daughter during her life, and by operation of law, that gift passed the property to the husband. But even if the husband was trustee, and could, pass the legal title, yet he could only pass such title as he held as trustee. Now, it is not pretended that his wife had more than a life estate in the slaves. At her death, they vested in her children, who thereupon had an immediate right to the possession of them. It appears from the pleadings that James E. Clen-denin died before Lowe’s wife; if so, his estate would be liable only for those slaves which were disposed of by him during his life-time, or which came to his administrator. Lowe had a right to sell the slaves for his wife’s life-time, and during her life-time, Olendenin’s possession was lawful. If Charity was run off after the death of Clendenin, before the assertion of an adverse claim to her by his representatives, his estate would not be liable for her value.

B. It is to be regretted that Clendenin’s heirs did not bring an action at once on the warranty. The principle is not perceived on which they can claim the slaves in controversy, and ask at the same time, that, if their claim is defeated, then that they may recover on the warranty of title. That would not be a joinder of several causes of action. It is the setting up of one claim, and asking that, in the event it should turn out unfounded, then that another cause of action might be tried. Par-, ties must ascertain the nature of their demands before they go to law. The will of Joab Barton, beyond all controversy, gave only a life estate in the slaves to Mrs. Lowe. At her death, they belonged to her children, and the only recourse of the plaintiffs, if they had any, was on the warranty made by Lowe to Clendenin.

4. Where the vendor is in possession of personal property, and sells it for full value, the law implies a warranty of title. Whether Lowe sold the slaves absolutely, or only his life estate in them, was a question to be determined by the evidence in the cause. Whether there would be a recovery on the warranty might, in part, depend on the result of the suit against Overton for the slaves sold to him, and, whether any thing had been done by James Clendenin or his administrator, which rendered his estate liable for the value of the slave Charity. Certainly, if any of the slaves have been lost to Lowe’s heirs, through the fault of Clendenin, it would constitute a counter claim to the demand of the plaintiffs for relief on the warranty. Morrison, by running off one of the slaves, on the termination of Clendenin’s interest in her, would not subject his co-heirs to a claim for her value.

5. The practice now is, not to review the instructions given or refused when the cause is submitted to the court for trial. This court, in such cases, looks at the facts found, and if they warrant the judgment pronounced, that judgment will be affirmed, without regard to the instructions given or refused.

6. There is nothing in the objection, that the court refused to strike out a part of the defendants’ answer. Even if there was, the point is not saved in such a way as that it can be noticed. The part objected to is designated by a reference to the paging of the original answer, which does not correspond with the paging of the record in this court.

There is nothing in the points about the admission or rejection of evidence which affects the judgment below, in our opinion. Upon the whole, we see no reason for disturbing the judgment of the court below on the merits of theucase as presented. In order to avoid future difficulty, the judgment will be reversed, and a judgment entered dismissing the plaintiffs’ action, without prejudice to a suit on the warranty, should they see proper to bring one, the appellants paying costs;

Judge Hyland concurring.