| Mo. | Jul 15, 1862
delivered the opinion of the court.
Plaintiff brought suit against the defendants in the Calla-way Circuit Court to recover possession of seven slaves — Prudence, Greene, Creed, Amanda, Laura, Margaret, and an infant, name unknown — of the value of thirty-two hundred dollars. The cause was submitted upon an agreed statement of facts, as follows:
“ Prudence, Greene, and Creed, originally belonged to the estate of Thomas Swearingen, deceased, of Montgomery county, in this State, who died in the year 1850. Letters of administration were taken out upon his estate, and in 1854 commissioners were appointed by the County Court of Mont*539 gomery county to divide the slaves of the intestate among his widow and heirs, and the slaves Prudence, Greene and Creed were assigned to Lydia Ann Swearingen, a daughter of the said Thomas Swearingen.
“ William Ai-nold, one of the defendants, was the guardian of the person and estate of the said Lydia Ann, she being a minor, and took possession as such guardian of said slaves, Prudence, Greene and Creed. Arnold was also guardian of two other minor heirs of the said Thomas Swearingen, and took possession of the slaves assigned them by the commissioners at the same time, and gave one bond. The other slaves mentioned are the children of Prudence, born since Arnold took possession. On the 1st of January, 1855, Arnold, as guardian of Lydia Ann, hired said slaves to Nunnelly, one of the defendants, for one year, for their victuals and clothes.
“ On the 15th of May, 1855, the plaintiff married the said Lydia Ann, and on the 29th of August following she died. The slaves sued for were in the possession of the defendants before and at the time of the commencement of the suit, and while so in possession of the defendants and before the commencement of the suit were demanded by the plaintiff of defendants and they refused to give them up.”
Upon the above statement of facts, the court found for the plaintiff; whereupon, defendants filed their motion for a new trial, on the ground that the finding of the court was not warranted by the facts, which motion was overruled and defendants appealed to this court.
The question arising in this case upon the foregoing facts is, “ What interest in the slaves did the plaintiff acquire by virtue of his marriage ?” Was the interest of Lydia Ann, at the time of her marriage, property in possession, or was it a mere chose in action ? If the former, then the marriage operated as a gift to the husband and the title vested in him; if the latter, then the husband only acquired by the marriage the right to reduce such chose in action into possession during
The elementary law writers define a chose in action to be a thing of which one has not the possession, or actual enjoyment, but only a right to it, or a right to demand it by action at law. (2 Black. Com. 396, 397.) Kent defines it to be a personal right not reduced to possession, but recoverable by suit at law. Tims it is said money due on a bond, note or other contract is a chose in action, for a property in the money vests whenever it becomes payable; but there is no possession till recovery by course of law, unless payment be voluntarily made. So damages for breach of covenant fox-detention of chattels, or for torts, come under the title of choses in action. If these are not reduced into possession by the husband during the coverture, it is clear he acquires no right to them.
In the case under consideration, we are of opiixioxi that the right of Lydia Ann in the slaves was a chose in possession, aixd not a chose iix action. The estate of Sweariixgen had beeix fully administered, and the slaves in controversy allotted to Lydia Ann by commissioners duly appointed for that pux-pose. Her distributive shax-e had, moreover, passed ixxto the hands of her guardian, and it is well settled that the possession of the guardian is the possessioxx of the ward. He acts in a mere fiduciary capacity, and is the agent aixd representative of his ward in all xnatters relating to the trixst property. Nor does the fact that he had hired the slaves for a year to Donxxelly affect the question in anywise, for Donnelly was a mere bailee, and the possessioxi of the bailee is the possession of the bailor. There was no adverse claim on the part of Donnelly. He had no px-opex-ty in the slaves, bxxt a mex-e right to exxjoy the xxse of them for a limited period. It was a x-ight perfectly consistent with the claixn and property of the ward. If we are right in these views, then the possession of Donnelly, in contemplation of law, was the possession of Arnold, the guardian, and the possession of the guardian was the possession of Lydia Ann, his ward; and
In this view of the law, we are amply sustained by authority. The case of Magee v. Toland, 8 Porter’s Ala. 36, is directly in point, and in every feature identical with this. The controversy related to a slave, the property of one Jane Carnathan, a minor, which was in possession of her guardian, George Hays. On the 1st of January, 1835, Hays hired the slave to Magee for one year, and the slave was delivered to him. On the 11th of June, 1835, Jane intermarried with the plaintiff Toland, and in August following she 'died. Neither Jane or her husband ever had the actual possession of the slave. Upon this state of facts, the court held that the possession of Magee, the bailee, was the possession of Hays, the guardian, and the possession of Hays was the possession of his ward, Jane, and upon the marriage of Jane her possession passed, eo instanti, to her husband, and the property vested absolutely in him. The same doctrine is recognized in. Chambers v. Perry, 17 Ala. 726" court="Ala." date_filed="1850-01-15" href="https://app.midpage.ai/document/chambers-v-perry-6504275?utm_source=webapp" opinion_id="6504275">17 Ala. 726; Sausing v. Gardner, 1 Hill, S. C., 191; 3 Litt., Ky., 275; 1 Wash., Va., 39; Davis v. Rhame, 1 McCord, Chy. R. 195; Armstrong v. Simonton’s adm’r, 2 Murphy, N. C., 351; Morrow v. Whiteside’s exec’r, 10 B. Mon. 411" court="Ky. Ct. App." date_filed="1850-09-12" href="https://app.midpage.ai/document/morrow-v-whitesides-7377965?utm_source=webapp" opinion_id="7377965">10 B. Mon. 411. In Sausing v. Gardner, 1 Hill, S. C., the court held that where a slave was allotted to the wife in part of her share of the estate, but left in the care of the executor, the marital rights of the husband attached, although he never had actual possession. t
Such a concurrence of authority from States in which the institution of slavery exists, and in which cases of this hind so frequently occur, leaves but little doubt as to the correctness of the rule.
the judgment of the court below will be affirmed.