37 Ky. 101 | Ky. Ct. App. | 1838
delivered the Opinion of the Court.
Dorris and Wife filed their bill against Whitesides and Powell, to redeem several slaves alleged to have been mortgaged by Dorris to Whitesides, and by him after-wards transferred to Powell, by whom they were removed from the State into some foreign parts, and sold to persons unknown.
They charge that the slaves were bequeathed to the wife of Dorris, during her natural life only, by her deceased brother, with remainder over to her children;
The adults answer by their attorney, and the infants by their guardian ad litem, consenting to, and praying for, a recovery of their value, if the slaves cannot be had, to be invested as proposed by the bill, and consenting to a surrender of their interest to the slaves and their increase, upon such recovery.
Whitesides answered, contending that he acquired the title by absolute purchase, and not by mortgage, and transferred his claim, such as it was, to Powell, who run off and sold the slaves. He makes his answer a cross-bill against Powell, and prays for relief against him, in case he is made responsible.
Powell answered the original and cross-bills, exhibiting the two instruments given by Dorris to Whitesides, and the latter’s assignment, on each, to him, and contends that he had no other notice of the transfers being mortgages, than that exhibited on the face of the writings, and admits that he removed the slaves out of the State' and sold them.
It is manifest, from the proof, that the slaves in contest were bequeathed to Mrs. Dorris for life only, with remainder over to her children; that Dorris had possession of them, and, in 1828, mortgaged and delivered one of them (Tenor) into the possession of Whitesides, to secure the payment of one hundred and five dollars, borrowed from him; that, whilst said slave was in White-sides’ possession, she had a child; that, in 1829, Dorris sold to Whitesides the other two slaves, William and Delilah, for his own life, for three hundred dollars, to be paid in one, two and three years, and hired the slaves from him till the following Christmas, for thirty five dollars; that, in a short time thereafter — say about a month
Whitesides retained possession of all the slaves until the 27th of January, 1830, when, on an arrangement between him and Powell, both instruments of writing were transferred to Powell — the first for one hundred and five dollars, the latter for three hundred dollars, and the slaveá delivered to him: he having, prior to that time, procured an execution, upon a judgment of about seven hundred dollars which he held on Dorris, to be levied on his interest in them.
After his purchase from Whitesides, he caused his execution to be returned, and immediately carried the slaves out of the State, to some foreign, unknown parts, and made sale of them.
The Circuit Court decreed against Whitesides the full fee simple value of William and Delilah; and against Whitesides and Powell jointly, the fee simple value of Tenor and her child; and, it appearing that the hire of the slaves, which were estimated from the time White-sides obtained possession up to the decree, at two hundred and forty four dollars more than the whole sum advanced by Whitesides and the interest thereon, as well as the charge for raising the young slave — the said excess of hire was first off set against Whitesides’ judgment on his note for thirty five dollars, and the balance was off set by so much of the judgment of Powell. But Whitesides was decreed to refund to Powell the amount of his judgment which was off set, and Powell was decreed to refund to Whitesides the value of Tenor and child, in case the amount should be made out of him.— And thewalue of the slaves was vested in a trustee, to 'be loaned out, and the interest from year to year to be applied to the benefit and support of Mrs. Dorris during her Yife, free from the control of her husband, and at her
The argument urged on this point is exceedingly plausible, and not entirely free from doubt. But upon due consideration, we are of opinion that it is too attenuated and technical for a court of equity. Even at law, an action on the case will lie in favor of him in reversion or remainder, for an injury to personal or real estate, affecting his interest, as for waste or the destruction of the thing. Chitty,s General Practice, 101-2, 138-9. 1 Chitty’s Pleadings, 48-9, 133-4. And in the former book (page 102) it is said, that an action of trespass or trover will only lie for injuries to personal goods, when the owner has possession in fact, or at least the right to immediate possession; but he must proceed by action on the case for the injury, when it affects his reversion-ary interest, as by an absolute sale± and permanent injury. 4 T. R. 489; 7 T. R. 9; 15 East, 607. The absolute sale and removal of the slaves out of the jurisdiction and power of our laws, certainly affects the security of the title of the reversioner, and may endanger the entire loss, especially when removed to distant and unknown parts. If it be an injury affecting the value of his interest — as there is no injury without a remedy — it would follow that an action at law would lie. But waiving this consideration, we cannot doubt that relief may be afforded in equity, to the full value of the slaves, under the circumstances of this case. Equity delights to do full, final and complete justice at once, and, to that end, all persons interested may be brought before the Court. The children- of Mrs. Dorris are certainly interested ip the property in contest, and deeply . interested, as the means of affording security to their title, to have th§> slaves restored to the possession of the tenant for life, from whom they were obtained, in their neighborhood, •
If the absolute estate had been in Dorris, and he had mortgaged them, upon application to a court of equity to redeem, and an order and decree for redemption, the mortgagee would have been bound to restore the slaves, or account for their full value in fee, and not for their value only for life or a term of years. When the whole absolute estate is in Dorris and his children, all of whom are parties, and praying for a restitution of the slaves, or their value upon the failure or refusal to restore them, especially when it turns out that they have been run out of the country, and no attempt or proffer made to restore them, or any reasonable likelihood that they can ever be restored, we can perceive no good reason why a decree for their full value may not be taken, to be divided out according to the several interests of the parties concerned. Whitesides, to whom, upon the mortgage, the custody of the slaves were committed, has no right to complain, as he, by his own act, in violation of his contract, has put it out of his power to place the slaves in statu quo. Nor has Powell, who has run the slaves off, and no doubt pocketed their full value, a right to complain. And the children of Mrs. Dorris, who have, by their acts, been deprived of the means of taking the immediate possession of the slaves and their increase, upon the termination of the particular estate, have been injured, and are not bound to wait until, by the lapse of time, they may lose the evidence to establish their right, or until Whitesides and Powell may fail, or remove themselves and property out of the State. Besides, Dorris or his representatives might be made liable to his children after the termination of his life estate, and if he could not recover the full value from his bailee, he might be left without indemnity for his liability over.
It is said that the slaves may be restored before the termination of the particular estate. No offer of the kind was made, or assurance that it would be done.— Besides, the time to restore them was when the tender to
■ Again: it is urged that a decree for a restitution of their value will not divest their title, or confer a good right on Whitesides or those claiming under him.
We think otherwise. If, at their instance and upon their prayer, their value is recovered, they would be af-terwards estopped to sue for or recover the slaves themselves. The title passes from them by such a decree, as fully as it passes by a recovery in trespass or trover.
But there is certainly error in the decree of the Circuit Court, in making Whitesides account for the full value of the slaves William and Delilah, and in not making Powell account over to him for any thing on their account. Though Powell may not have had any notice at the time of his purchase, that those slaves were only mortgaged to Whitesides, he had notice that he held only an estate for the life of Dorris in them. The instrument of writing executed for them, by Dorris to Whitesides, passed only an estate for his (Dorris’) life, and purported to pass no ’ more. That instrument was assigned by Whitesides to Powell, and it is evident that he sold to Powell only such interest in them as the instrument executed to him by Dorris purported to convey. Powell had, therefore, no pretext, by virtue of the right derived from Whitesides, to sell a greater interest in the slaves than for the life of Dorris, Powell 'should, therefore, have been made responsible to the complainants and their children, or over to Whitesides, in case he paid the whole value, for the value of the estate in remainder, after the death of Dorris, in those two slaves.
The Court has also erred in decreeing Whitesides to refund to Powell the whole excess of the hire of all the slaves which had been off set against Powell’s judgment.
In relation to William and Delilah, as the sale to Powell purports to be absolute for the life of Dorris, he had a
But it should here be remarked, that, as all the slaves were put into the possession of Whitesides, and it became his duty to restore them when redeemed, the claimants may look to him for the whole value and hire; and a decree may be rendered against him for the whole, or it may be rendered against him for so much as he is made separately liable, and against him and Powell jointly for the amount that Powell is made liable by this opinion. But a decree over against Powell for the amount for which he is made responsible, should be rendered in favor of Whitesides, in case he is made to pay to the claimants the whole.
But, as the case must be remanded, it is proper that we should notice another error to the prejudice of Powell. He holds an unsatisfied judgment against Dorris, and prays that it may be off set against the amount that may be decreed against him. And it is alleged and proven that Dorris is insolvent. The Circuit Court having set apart the whole value of the slaves to the support' of Mrs. Dorris during her life, refused the set-off as to all except the excess of hire. In this the Court erred.
It is true, that if the wife have a chose in action, or a right to property not reduced to possession, and which cannot be come at by the husband, or the husband’s as-signee or creditor, without the aid of a court of equity, that court will not afford relief without making provision for the wife and children out of it. Or, when property is specially set apart for her separate use, though
But as slaves or personal estate left to the wife, when reduced to possession, become the property of the husband, legally and absolutely, without the aid of a chancellor, he may sell and dispose of them as his own, and they are subject, in the same manner, and to the same extent, to the payment of his debts; a chancellor will not interpose to change the legal rights of the parties, or to wrest from him or his creditors their legal advantage. And as the slaves were in the possession of Dorris, who had a right to mortgage them, without the participation of his wife, and has done so, and as Dorris is alleged and proven to be insolvent, he ought not to be allowed to redeem, except upon the terms of paying, not only the mortgage-debt, but the judgment. Or, the judgment of Powell should have been set off against the value of Dor-ris’ interest in the slaves during the life of his wife, and the value of the remainder decreed over to her children.
It is, for the errors before noticed, the opinion of the Court, that the decree of the Circuit Court be reversed, and cause remanded, that a commissioner may be appointed to take proof, and make an estimate of the value of the slaves during the life of Mrs. Dorris, as well as the value of William and Delilah during the life of Dor-ris, and the value of the remainder in them after his and her death; and take proof and make such other estimates as will enable the Court to render a decree according to principles of equity, and not repugnant to this opinion. Whitesides is entitled to his costs in this Court.