Fanny Leiper v. Malvina Hoffman et al., 26 Miss. 615

Mr. Justice Handy delivered the opinion of the court.

The bill in this case states, in substance, that the complainant, a free mulatto woman, purchased in the year 1834 from one Wells, in the city of Natchez, a vacant lot of ground, took possession and proceeded to have a dwelling-house built upon it, the cost of the lot being $175, and the improvements costing upwards of $1,500, all of which she paid out of her own means; that she resided on the premises until the year 1845, when she removed to-Cincinnati in Ohio, where she has since resided, during which time it was assessed as her property and she paid the taxes, and after her removal, she left an agent to lease it and collect the rents; that in April, 1836, she completed the payment of the purchase-money, and applied to Wells, the vendor, to execute a deed; and being a colored person, and being advised to have the deed made jointly to herself and some white person, who might act as a trustee for her in the event that she removed from this State, there being at that time a great spirit to remove from the State all free persons of color, she had the name of the defendant Winscott inserted jointly in the deed with herself, having great confidence in his friendship, he residing in New Orleans, and-having no knowledge of or participation in the matter, the deed being executed and delivered to her; that after she had removed from Natchez, the defendant, Malvina Hoffman, her next door neighbor while she resided in Natchez, and having full knowledge of the complainant’s purchase of the property, and how the deed was made, fraudulently procured Winscott to convey the property to her, representing that the complainant was a slave, and that he held the legal title, and that the property was of little value, &e.; whereupon, in September, 1845, Winscott executed a deed to the defendant Hoffman, in consideration of $100, when the property was worth $1,000; and in consequence of this and other fraudulent conduct, the defendant obtained possession from the agent of complainant, and has since enjoyed the property.

The object of the bill is to have the deed to Hoffman cancelled, a release executed by Winscott to complainant, a surrender of possession by defendant Hoffman, and an account and decree against her for rents, &c. The answer of Hoffman and Winscott denies that complainant is a free person, or was so at the time her alleged cause of action accrued, and avers that she was then a slave.

They deny that she contracted with Wells for the purchase of the lot, and allege that Winscott furnished the 'money to pay for it and for the improvements, which was paid through complainant, and that the deed was made, including the complainant’s name, at her solicitation, when it should rightfully have been made in his name alone; they deny his want of knowledge of the execution of the deed, and that it was executed in their joint names for the reason stated in the bill, and state that he took possession through the complainant, whom he regarded as his tenant at sufferance, and was on the premises whenever his occupation, which was that of an engineer on a steamboat on the Mississippi river, permitted him.

They admit that Hoffman knew that the deed was in the joint names of complainant and Winscott, but aver that she had paid no part of the purchase-money, that her name was inserted merely to gratify a whim of hers by Winscott’s consent, and that at the date of the deed, arid for a long time afterwards, she was a slave, and incapable of purchasing the property for her own benefit. Much testimony was taken in the case; and upon the final hearing, upon the pleadings and proofs, the vice-chancellor dismissed the bill, and the case is thereupon brought to this court by appeal.

The first question for consideration is, whether the money for the purchase of the lot and for the improvements put upon it, paid by the complainant, was furnished by Winscott. It clearly appears by the proofs, and it seems to be admitted by the answer, that the money was paid by her hand; and it therefore devolves upon the defendant to prove that Winscott furnished the means. The defendants contend that the answer shows this, and that its statements, being responsive to the bill on this point, are evidence, unless disproved.

By the 3d interrogatory in the bill, Winscott is asked, “ Did you pay to the said John R. Wells any portion of the purchase-money?” and again, “ Did you pay any part or portion of the money for the improvements ? ” He answers to the first, “ that he did pay the whole of the purchase-money for the lot.” He then goes on to say how he paid it, and states, in substance, that he furnished it to the complainant, who paid it over to Wells. The first part of the answer is responsive to the interrogatory, and a full and complete answer to it.

It was all that the defendant was required to answer, and that far, it is evidence for what it is worth. But it is disproved by the testimony on the part of the complainant, which shows that the money was paid by the complainant. After answering as to the direct matter propounded to him, he proceeds to explain in what manner he paid the money, and the answer to the other interrogatory is of the same character.

This he was not required to do by the interrogatory, and he is not to be permitted to make evidence for himself, by explanations or otherwise, not strictly in response to the direct point to which he was required to answer. 1 Greenl. Ev. § 351; 2 Story, Eq. Jur. § 1529; 2 J. C. R. 88-90. The best test of whether matter stated in the answer-is strictly responsive to the bill, is to-consider whether the statements of the answer are not a full and complete answer to the matter inquired of, without the matter of explanation or addition.

If it is, the additional matter cannot be regarded as responsive to the bill, and binding as evidence upon the complainant. By this rule, the answer of Winscott in this case is not evidence against the complainant, for he is only required to answer whether he paid the money; under cover of which he answers that he furnished the money, when it appears from his answer that he does not know whether it was paid or not.

And we are disposed to apply the full rigor of this rule to this party, because of the great improbability of the account he gives of the matter; for it is certainly most improbable that a white man would supply to a colored woman, alleged to be a slave, the large sum of $1,700, to purchase real estate for his benefit, give no attention whatever to the business, but intrust it entirely to her management, and actually consent that her name shall be joined with his in the deed.

The next question is, How are the rights of the complainant affected by the fact that she was not emancipated according to the laws of this State at the time the deed was executed ? It is shown by the evidence that, though not emancipated at that time, her former owner asserted no claim upon her, and expressly recognized her as a free person ; and it is further proved that she afterwards went to the State of Ohio to reside, and still resides there, where slavery is not permitted!, and that her former owner acknowledges her to be a free person. Several objections are urged against her claim in this respect. First.

It is said that the deed under which complainant claims was made for the purpose of evading the law of this State relative to free negroes and mulattoes. The only evidence upon this point seems to be the statements of the bill as to the reasons which induced her to have the name of Winscott inserted with her own in the deed, namely, that she was a colored person, and was advised to take that course in order that the person whose name was united with hers might act as a trustee for her in the event that free persons of color shouldbe compelled to quit this State.

This was not an evasion or violation of any law then in existence here, and her claim cannot be prejudiced by the course she adopted in this respect to protect her rights. Secondly. It is said, that not being manumitted according to our laws, it was an evasion of them for her to go to Ohio to perfect her manumission. If she had gone to Ohio merely for the purpose of establishing her freedom, with the intention of returning here to exercise it, and had returned here to act as a free person, there would have been force in this objection. But it is not shown that she left this State with the intention of returning.

Her change of residence appears to be bond fide, and she has continued ever' since to reside in the State of Ohio. In this material respect, the case differs from that of Hinds v. Brazealle, 2 How. 837, where slaves were taken by the master to the State of Ohio, there to be made free, in order to return to this State and enjoy freedom, and this because they could not be manumitted here under our laws. In that case, both the intention and the subsequent acts of the parties characterized it as a manumission in fraud of our laws.

Here no such intention appears, nor does the complainant fall within the provisions of our statutes relative to free negroes in this State. On the contrary, it is fully held by this court in Ross v. Vertner, 5 How. 305, that our laws do not prohibit the removal of slaves from this to another State, to be manumitted there, pro vided it is not done with the intention of their returning here to act as free persons. Thirdly. It is contended, that the complainant took nothing by the deed to her and Winscott, because she was a slave at the date of it.

It is not necessary to decide what would have been the effect of the deed, if it had been made in her name alone, she being a slave, but her legal owner treating her as free, and her freedom having been subsequently established. If the deed was inoperative to convey any legal or equitable estate to her in presentí, it was still effectual as a conveyance of the legal title to Winscott. And it was competent for him to hold the legal title in trust for her.

Her right of present enjoyment might be prevented by her condition of slavery ; but if the trust continued until that disability was removed by her admission to the rights of a free person, her rights as a cestui que trust would then immediately vest, and she would be entitled to enforce them against the trustee. While she was a slave, her rights were suspended, and no one could interfere with them but her legal owner. Here that person fully acquiesces in her claim both before and since the establishment of her freedom, and no other person can question her rights acquired under the deed.

She is, therefore, entitled to claim the benefit of the trust; and if the trustee has aliened the trust property, it is chargeable in the hands of any one into whose possession it has come, with legal notice of her claim. This brings us to consider whether the defendant Hoffman is entitled to protection as a purchaser without notice. It is substantially admitted that she had knowledge that the complainant’s name was inserted in the deed, and she pretends to have known that it was inserted for mere form.

While the complainant resided in Natchez, which was for about nine years after the execution of this deed, no effort seems to have been made to disturb her ownership of the property, though she was the reputed owner, paid the taxes, and it was assessed as her property. But, shortly after her removal to Ohio, the defendant Hoffman appears to have entertained the idea of acquiring it, and did purchase it for the small sum of $ 100. The circumstances of the affair render the conduct of the parties extremely suspicious.

The conduct of the defendant Winscott, as it appears through his answer, would commend him as little to favorable consideration in a court of equity, as in good morals; and the position of the defendant Hoffman does not appear to be much more commendable. She admits her knowledge of the pretences of Winscott upon which his claim is attempted to be justified, and this involves her in a knowledge of the claim or interest of the complainant, which in law charges her ■with notice.

Knowing from the deed that the complainant had an interest, her purchase was at her peril, and subject to all the rights of the complainant. The decree of the vice-chancellor is reversed, and the case remanded, with directions to have an account taken of the rents and profits of the property since the delivery of possession by the agent of complainant to the defendant Hoffman, and that she be decreed to pay the same to the complainant, that the deed executed .by Winscott to the said Hoffman be delivered up to be cancelled, and that the said Winscott convey the premises to the complainant.

Smith, justice, gave no opinion.