36 Miss. 545 | Miss. | 1858
delivered the opinion of the court.
The plaintiffs in error commenced their action of replevin in the Circuit Court, to recover the possession of a negro man, from the defendant in error, both parties claiming title to said negro, under trust deeds, which appear in the record.
Two errors are assigned in form, as follows:—
1. As shown in the bill of exceptions.
2. In overruling the motion for a new trial.
The office of an assignment of errors, is to notify the opposite party of the special causes of complaint existing in the record. It is in the nature of a declaration, to which it is the right and duty of the defendant in error regularly to plead. In nullo est erratum, is the usual plea, answering to the general isssue, which is in the nature of a demurrer, presenting, as it does, an issue in law directly to the court.
We shall only notice the second assignment of error, in this case, for the reason that the first presents no special cause of complaint, to the notice of the defendant or of the court, but simply refers to the bill of exceptions, and the astuteness of the defendant, to discover what he can, by an examination of the record.
The second assignment of error, presents the question, whether the finding of the jury is manifestly against the evidence in the case, under the law which should govern it; and, upon this point, we think that the court erred, in not granting a new trial. The evidence clearly established, that the title to the property in dispute, was originally in the father of Mrs. Carter; that after the Act of 1839, known as the Married Woman’s Law, this negro was given to the wife of Davis Gl. Carter; that Davis Gr. Carter, in the year 1851, sold this negro to defendant Williams, trustee, to secure a debt due by him, without the concurrence of his wife; that in 1853, Carter and his wife sold the same negro, by deed of trust, duly executed, to plaintiffs in error, to secure another debt.
The only question for consideration, under the state of facts presented in the record, is whether the sale, by the husband alone, vested any title in Williams, the defendant in error, under the Act of 1839.
Upon this question, neither the Statute of 1889, nor the repeated decisions of this court, leave any room for doubt. Without a formal review of the cases, we state generally, that, with the exception of the case of Friley v. White, to which we will presently advert, the rule has been uniform, that, under the Act of 1839,
The ease of Friley v. White, 31 Miss. 442, so far as concerns the case then before the court, was, perhaps, correctly decided; but as to the inadvertent obiter dictum, that the husband could make a contract to part with the possession of the slave, which would be binding, during the coverture, on the wife, it is inconsistent, not only with the repeated decisions previously made by this court, but with the plain provisions of the Act of 1839, and, to that extent, is, therefore overruled.
The case of Steadman v. Holman, 33 Miss. R. 550, is not inconsistent with the long-established doctrines of this court, on this subject. In this case, an execution against the husband and wife was levied on the separate property of the wife, held under the Act of 1839, and sold to one Holman, who afterwards conveyed it back to the husband. After the death of the wife, her administrator brought an action of replevin against the husband. The husband, on the death of the wife, was entitled to his old possession, which was joint with her, during her life, and continuing to him for his life, after her death. The administrator, therefore, had no right to the possession of such separate property of the wife, as against the husband.
Under the views here expressed, the verdict of the jury was manifestly against the evidence and the law, and a new trial should therefore have been granted.
For this error, the judgment will be reversed, cause remanded, and a venire de novo awarded.
