John C. McGrew vs. Benjamin Hart, 1 Port. 175

By Mr. Chief Justice Lipscomb : This was an action to try the right of property. / The property was levied on as the estate of Philips, and claimed by Mr. McGrew. The facts of the case are represented by a bill of exceptions, and in substance are — that an execution issued from the office of the Circuit Court of Greene county, on the twenty-ninth March, 1830, in favor of Hart, against James L. Philips. The execution was levied by the sheriff of Marengo county, on certain slaves, as the property of the said Philips, which were claimed by John C. McGrew as his property.

On thé trial of the issue, the plaintiff in the execution proved that the slaves had been for several years in the possession of Philips, and that he had been in the ha-* bit of exercising ownership over them. ‘It further appeared, ’ that Hart having filed his bill in chancery, in the Circuit Court of Greene county, against Philips, obtained an order from the chancellor, directing the sheriff of Greene county to seize upon, and take into his possession, the property of Philips, to an amount specified in the same order, and to hold the same till Philips executed his bond with security, conditioned, that the property thus seized, should be forthcoming, to answer such decree as might be rendered, &c.

The ne-groes in question were seized on by the sheriff, under the order before mentioned, and McGrew the claimant, became the surety of Philips in the bond required, in which bond they were described as the property of Philips. On the part of the claimant of the property, a transcipt of a record from Washington Circuit Court was introduced, showing, that at the May term, 1822, of said court, a judgment was recovered in the said court, by John McGrew, as administrator of William McGrew, deceased, against James L.

Philips, for the sum of six thousand two hundred and eighty six dollars and thirty cents, besides costs of suit. It appeared that John C. Mc-Grew and William P. McGrew were the heirs and distribu-tees of the estate of William McGrew, deceased. It was further proved, that John C. McGrew agreed to receive from John McGrew, the administrator of his father’s estate, the judgment against Philips, before mentioned, on account of what might be due to him and his younger brother, William P.

McGrew, from the estate of their deceased father ; and that the said administrator authorised him the said John C. .McGrew to collect and appropriate said judgment accordingly. The claimant further’proved, by the testimony of John McGrew, that the amount of said judgment was justly due and owing from Phillips, to the estate of William McGrew, deceased, and that the claimant and his brother William P. McGrew, were the only children of the deccased; that Philips claimed that off sets existed in his favor against the note oil which judgment was rendered, but had paid nothing at the time it was transferred.

The claimant further produced a bill of sale from Philips to hims.elf, "for the said slaves, bear-" ing date the 13th August, 1822, conditioned to b© void if the said Philips would abide a final settlement with the heirs of Col. William McGrew. The execution of this deed was proved by the subscribing witness, on the 8th of October, 1S28, before Thomas Ringold, Judge of the County Court, and recorded in the office of the clerk of the County Court of Marengo county, on the 25th-February, 1829.

It further appeared, that Philips married the widow of William Mc-Grew, and the mother of the claimant; and that about the time of the execution of the deed, and for some time after-wards, the claimant lived most of his time in the family of Philips; that he removed from Philips’s about the j'ear 1823 or 1824, about which time he came of age, leaving in the possession of Philips, the negroes in dispute, and that they were not taken possession of by him until about three years before the trial — until after the seizure under the bill of Hart; since which they had continued in his possession.

That after he removed to Marengo county, and before he obtained possession, he was farming, and had a plantation and other negroes in possession. The claimant further gave in evidence, a transcript from the records of the County Court of Clarke county, showing a division, by commissioners duly appointed by said court, of the negroes belonging to the estate . of William McGrew, deceased, in which, a part of the ne-gres now in controversy, were assigned to John C. McGrew and William P. McGrew jointly; and it appeared that William P.

McGrew, at the time of making such division, and now, is a minor under the age of twenty one years. There was no evidence of any division between John C. McGrew and William P. McGrew, of the negroes assigned to them jointly, except that some of the negroes were understood by witness to be the property of William P. McGreWj and others to be the property of John C. McGrew — that they lived together and claimed separately, certain of the negroes.

Under these facts, the court charged the jury, that if a party who has a conveyance of property, omits to take possession of it within a reasonable time after the right to the possession accrues ; it is presumptive evidence of fraud : and if McGrew, the claimant, omitted to take possession of the property, mentioned in the conveyance, executed by Philips to him, within a reasonable time — or omitted to make exertions to obtain it within a reasonable time after he came of age, it was presumptive evidence that the conveyance was fraudulent.

The court further charged the jury, that if the property, or any part of it, belonged jointly to John C. McGrew and William P. McGrew, the claimant could not sustain his claim to such part; and that it would be their duty to find it subject to the plaintiff’s execution — that claimant could not be permitted to defeat the claim of the plaintiff in the execution, by showing, that the right and title to the property levied on, was in any other person than himself. The claimant, by his counsel, requested the court to charge the jury, that if they believed that John C. McGrew and William P.

McGrew had, by any understanding between themselves, divided the negroes allotted to them jointly, that such understanding, would be sufficient, to vest in each individually, the part allotted to him by such understanding — which the court refused, and instructed the jury, that William P.' McGrew being a minor, was incapable .of assenting to such a division. The assignment of errors embraces all the points of law growing out of the bill of exceptions. The first question of law arising out of the charge, is abstract, and not material to the issue.

It could not be important on the trial of that issue, whether the deed from Philips to the claimant was supported by a good consideration, and was a fair and bona .fide transaction or not — since, according to the case of McGregor & Darling vs. Hall, the property secured by the deed to the claimant, was not protected from an execution against Philips, and it would have been liable to be sold, subject to the claimant’s lien. It was nothing more than a mortgage to secure the payment of a debt. But, as the case of McGregor & Darling vs.

Hall, had not then been decided, we may presume, that the judge in the court below, was then of opinion, that the deed, if fair and bona fide,, fully' protected the property conveyed, from an execution against the maker ; that in fact, it vested the legal title in the claimant, and could not be made liable for Philips’ debts, until the fairness of the deed had given way before the impeachment , of fraud.

In this aspect the charge would have been pertinent ; but if that had been true, there seems to have been no error in the charge that if McGrew omitted taking possession, or making efforts to acquire the possession within a reasonable time after coming of age, such neglect or omission would form a presumption that the transaction was fraudulent. This we believe would have been the sound law, if the validity of that deed had been at all necessary to the issue before the court.

If he had been of age for several years, and took no steps to acquire possession; and no good and satisfactory reason is shown why he had not, the presumption would have been so .strong against him, that it would have been difficult, on any known principle growing-out of such transaction, for the jury to have resisted its influence. The second charge given by the court, is the one most relied on by the counsel for the plaintiff in error, to reverse the judgment. It is, “ that if any part of the property belonged jointly to John C. McGrew claimant, and William P.

McGrew — that the claimant could not sustain his claim to such part.” The judge in this charge, among other considerations, proceeded on this principle, that the claimant of the property levied on under execution as the property of the defendant in the execution, could not be permitted to interpose the title of , a third person to defeat the execution. The correctness of this principle, we shall not controvert, as we be-liove it to be correct as a general principle.

If the claimant lifts no title himself, it would be officious intermedling on his part, to interpose the title of a third person to arres t the execution ; and it does not come within the issue, to show that although he has no title himself, yet that there is abetter outstanding title in some third person, than in the defendant in the execution.

Another consideration may have influenced the judge, that, as according to the doctrine of joint owners and copartners, if a judgment is recovered against one joint owner or partner, for his individual debt, execution may run against the joint property, for the purpose of subjecting to the satisfaction of such judgment, the share or interest to the defendant in such property ; and that as the claimant had no right to shield the property from execution by interposing any title but. his own : admitting he had an undivided interest— the plaintiff was nevertheless entitled to his execution.

To carry the principle to this extent, would be productive of great mischief and injustice, it would be subjecting property, in which the defendant iu the execution has not the least possible interest, and to which he may never have had the slightest shadow of title, to the satisfaction of such execution. So far as William P. McGrew is concerned, the judgment onthe issue, under the charge of the court, would not have impaired, or in any manner affeeted his rights. But not so as to the claimant. The verdict and judgment would have forever bound his rights.

It may however, be.said, that ' if injustice is done to the claimant, it is of his own seeking— that he ought to have claimed the property as the joint property of himself and his infant brother.

But we may suppose a case where the claimant might know that his right to the one half was good, and might verily in truth and honesty believe the other half was also his own ; but if on the trial it should be made to appear that one undivided half did not belong to him, nor.to the defendant in execution, but to some third person, not a party to the suit; we surely would not subject him to such serious consequences as would result from the charge of the jndge.

If the property were proved to be that of the claimant, and the defendant in the execution, when the whole of it had been claimed by the claimant, a perplexing question would arise.' The interest of the defendant in the execution would certainly be liable ; and the claimant could not avoid the legal consequences of a judgment against his claim by dismissing it on the trial. This he is prohibited from doing by the statute, without the consent of the plaintiff in execution.

Whether the difficulty could be avoided, and the consequences averted by an application to the court for a new trial — -and such modification of the issue, as would au-thorise the jury to find the interest of the defendant in the execution alone liable ; or whether the jury would not be au-thorised to find the property liable, to the extent of the defendant’s interest on the first issue, are questions not directly before us.

The last charge prayed, was, that if the claimant and William P. .McGrew, had, by any understanding between themselves, divided the negroes allotted to them jointly, that such understanding must be sufficient to vest in each, individually, the part allotted to him by such understanding. This charge we believe the court correctly refused, on the ground that no such understanding could be entered into by William P. McGrew. The rule, that infancy is .a personal privilege, is admitted ; subject, like all other general rules, to exceptions.

It is believed to be subject to less restriction between the infant and the party contracting with him. It cannot always prevail, when other persons are to be affected by it. Suppose that John C. McGrew and his infant brother had exchanged property — would it be contended that a plaintiff in an execution against John C. McGrew would be bound by such contract r If he levied on the property given by the infant in exchange, the property would not sell for its value, on account of the uncertainty, whether the infant would confirm the exchange on his coming of age.

This,' and the like,, would entirely form exceptions to the general rule. The bill'of exceptions is somewhat vague, and does no4, sufficiently show the pertinency of some of the charges given; and some refused; but we believe, that on the second charge given, the court erred ; and, as it is possible the verdict was founded on that part of the charge, for that error the judgment ought to be reversed, and the cause remanded. It was, however,, contended, that the verdict must have been the same, without the charge supposed to be erroneous, and that therefore, the judgment, ought not to be disturbed.

The fact, that the claimant had been bound as security for Philips to deliver this same property to satisfy such judgment and decree as Hart, the plaintiff in the'execution, might recover, &c. would prevent him from afterwards setting up a claim in his own right.

There is certainly-much force in this argument, and it would be a mockery of justice after he had bound himself, when this property was seized on as Phi- ' lips’ under the order of the chancellor, to see that Philips should have it, forthcoming to answer such decree as should be rendered ; to allow him, now that a decree has been renr-dered against Philips in the very case, to interpose a claim of his own to prevent a satisfaction of that decree when the property was seized under the order of, the chancellor. If -he had asserted his title, the probability is, that the sheriff would have seized other property.

If he was silent, such silence would amount to a waiver of his right. We do not know, however, but there may have been other testimony. The bill of exceptions does not assume to spread it all on the record, nor do we know that the case turned on that question. It may have been that that a,reservation of his own individual title to the property was made expressly, at the time of the seizure; or it may have been in proof, that Hart had released the claimant from the consequences of his bond, as surety for Philips.

If the bond stood alone, unexplained, we might pass on the legal effect of it, and say, that it was of itself suf-bcient to support the judgment, but as this may not have been the, case, we reverse the judgment, as before mentioned, on the second charge in tne bill of exceptions — and remand the case to the court below. ,