Smith v. Hutchings

30 Mo. 380 | Mo. | 1860

Napton, Judge,

delivered the opinion of the court.

We are not called upon in this case to express any opinion in relation to so much of the instruction given by the circuit court upon the trial as relates to the title of Mrs. Bright. The instruction declared that Mrs. Bright parted with her interest in the slave sued for by joining in the bill of sale, and as the judgment is acquiesced in by the party representing her interest, the propriety of the direction is not a matter for our consideration.

But it is insisted by the party complaining that the instruction should have further declared that the sale by the husband passed the title of the children, or that their title was lost by the failure of the trustee to record the deed in Ray county.

This subject has been so often before this court that it is not necessary to go into any detailed examination of it here. The fourth section of the act concerning fraudulent convey- \ anees was not designed to have any extra territorial operation. It does not apply to deeds made in Kentucky or Virginia, where all the parties to them, and the property con-. veyed by them, are located at the date of their execution. When the title passes by the law of the country where thel deed is made, and where the property is and the parties reside, it is good everywhere else, upon every principle of in-' ternational comity, unless the policy of the state, to which the property is brought and where the controversy arises, ' should induce a different rule. Our legislature has not thought proper to change or modify this general principle; and although experience may show that many frauds are committed for want of such enactments, it may be doubted whether the protection furnished to purchasers by such a law •would not be more than counterbalanced by the gross injustice done to defenceless women and children. The rule of caveat empior is the well established and generally known principle of the common law, yet it occasionally works injustice in other cases besides the class we are now speaking of. When a man is willing to defraud his wife and children by undertaking to sell property which he knows is theirs and to which he is conscious he has no title, there must be recklessness, improvidence, or want of honesty, or all combined; and this character will usually show itself in other acts, so that the purchaser who deals with such a person ought to be on his guard. If the vendor is a stranger to the vendee, there is the greater necessity of watchfulness on the part of the buyer. The exercise of ordinary diligence will usually lead to some suspicions of the truth. Here, the defendant, purchasing a negro boy from Bright, in whom he alleges was the sole title, requires the wife to join in the bill of sale. This circumstance shows that the wife was believed to have an interest, and that was sufficient to put the purchaser upon inquiry.

In relation to the leading questions found in the depositions, we do not consider that the court was bound to suppress the answers, for this reason alone. The form in which questions to witnesses are put must be regulated by the court which tries the case, and whether the answers shall be received when in the form of depositions is a matter of discretion. It is not a matter upon which error can be assigned. We do not understand the thirtieth section of the act concerning depositions in the revised code of 1855, (p. 659,) as intended to change this practice, and overturn the decisions of this court in the cases of Glasgow v. Ridgley, 11 Mo. 34, and Walsh v. Agnew, 12 Mo. 520.

With the concurrence of the other judges, the judgment is affirmed.