Carter, Plaintiff in Error, vs. Feland, Defendant in Error, 17 Mo. 383

RylaND, Judge, delivered the opinion of the court. This was an action of trover, brought in the Buchanan Circuit Court, in December, 1847, to recover the value of a negro woman and child, which were alleged to be the property of plaintiff, and which the defendant had converted to his own use. The defendant pleaded the general issue.

Upon the trial of the cause, the plaintiff proved, that in the year 1831 or 1832, in the state of Tennessee, he was the owner of a negro woman, named Charlotte, and had her in his possession, and that she became the mother of the negro, Winny, named in the declaration ; that in the month of October, 1847, the defendant was in the possession of the said negro woman, Winny, in the county o£ Bucbanan and state of Missouri, who was about sixteen or seventeen years old, and had had the possession of her since the fall of 1844 ; that in October, 1847, before the commencement of the suit, the plaintiff went to the house of defendant in said county of Buchanan, and demanded of him said negro, Winny, who then had a child about six months old, and that defendant refused to give her up; that the child, since that time, died; and that Winny was worth $400 or $500.

The defendant then proved, that after the possession of said negro woman, Charlotte, and her child Winny, by the plaintiff, in the year 1831 or 1832, James Carter, a brother of the plaintiff, had them in his possession in the state of Tennessee. The defendant then offered to prove the declarations of said James Carter, while he had said negroes in his possession, in reference to his right to said negroes, to which plaintiff objected, but the court overruled the objection and the plaintiff' excepted.

It was then proved, that the said James Carter, while he so had the negroes in his possession, stated, that about the year 1831 or 1832, the plaintiff placed .the said negro woman, Charlotte, and her child, Winny, in his possession, to keep for plaintiff until his return, as he was going to travel, but if he never returned, the said negroes were to become the property of said James Carter ; that plaintiff then left the state of Tennessee, and did not return, until after the negro Winny was brought to Missouri; that James Carter retained possession of said negroes from the year 1831 or 1832, until 1841, when, no account having been heard of plaintiff, said James Carter claimed the negroes as his own, and continued so to claim said negroes, until they left Tennessee, because he said, that plaintiff was dead, which was generally believed to be the fact.

He said that the negroes were his, by the terms of his agreement with the plaintiff, and that he would do with them as he pleased.

In 1843, James Carter tried to get one Daniel Hogan, who was going to Missouri, to take the negro, Winny, along with him, and deliver her to ono Richard Hogan, who then resided in Buchanan county, in the state of Missouri, and was the son-in-law of the said James' Carter, but that said Daniel Hogan declined to bring said negro with him to Missouri; that in the spring of 1844, no account having been heard of the plaintiff, James Carter still had possession of said negroes, and claimed them as his own, and procured one Mathew Ferrell to bring the negro, Winny, front Tennessee, and deliver her to Richard Hogan, in Buchanan county, Missouri.

The said Richard Hogan, having acquired the possession of said negro woman, by gift, from his father-in-law, James Carter, in the fall of 1844, sold her for $400, to defendant, Feland, who had no notice of the plaintiff’s right or claim to said negro, Winny. It was also proved that, during all the time that James Carter had possession of said negroes, it was notorious through the neighborhood where the negroes were, that they were the property of the plaintiff, and equally notorious that they were to become the property of James Carter, if the plaintiff never returned, which was all of the evidence in the cause.

The plaintiff then moved the court to give the following instructions : 1. .That if the plaintiff demanded the negroes in the declaration mentioned, before the commencement of this suit, and they were his property, and the defendant .refused to give them up, and appropriated them to his own use, it gives the plaintiff a right of recovery, if not precluded by other instructions. 2. If they find for the plaintiff, the measure of damages is the value of the negroes, at the‘time of the appropriation, with interest on that amount, from the time of appropriation to the present time. 3.

If they find for the plaintiff, and do not choose to give interest, they may find the value of the negroes at the time that the defendant appropriated them, adding thereto the value of the services of the negro woman, from the time the defendant so appropriated her, to the present time. 4. If the negro child in the declaration mentioned, did not die until after the plaintiff demanded, and the defendant refused to give it up, tbe plaintiff is entitled to recover in this action the value of the child, at the time of demand and refusal. 5.

If the plaintiff placed said negro woman in the possession of James Carter, under whom the defendant claims, tobe kept by the said James Carter for the plaintiff, and delivered up to plaintiff when called for, but if plaintiff died, then said negro to be the property of James Carter, and if the said James Carter and those under him kept the possession of said negro agreeably to, and consistently with said terms, down to a period within less than five years of the commencement of this action, then the statute of limitations does not bar the plaintiff’s right. 6.

If James Carter came into possession, and ho and those claiming under him retained possession o'f the said negro in the manner set forth in the next preceding instruction, then the statute of limitations does not defeat the plaintiff’s right, unless the jury believe from the evidence, that the plaintiff made demand upon said James Carter or those under him, five years or more before the commencement of this suit. 7.

If James Carter, under whom defendant claims, had adverse possession of said negro woman for five years, in the state of Tennessee, but during all that time, plaintiff was absent from the said state of Tennessee, then such adverse possession does not affect the right of the plaintiff, so far as the statute of limitations is concerned ; but, in order to defeat the right of the plaintiff by virtue of the statute of limitations, said adverse possession must have been continued for five years after the return of the plaintiff to the state of Tennessee. 8.

If the agreement, under which plaintiff put the said negroes in possession of James Carter, under whom defendant claims by purchase from Hogan, was upon valuable consideration and bona fide, the plaintiff’s right is not affected by the act concerning fraudulent conveyances. 9. If the conveyance of said negro by plaintiff to James Carter was made for tbeir joint benefit, it was upon valuable •consideration. 10.

That, unless the jury believe from the evidence, that the said negro was in this state five years before demand made of her, upon defendant by plaintiff, they will find for plaintiff, if they believe that the transaction in proof between plaintiff and James Carter, in relation to said negro woman, was a gratuitous loan. 11.

If the plaintiff placed the negro woman in the possession of James Carter, who was to keep her until plaintiff’s return, and then give her up to him, and if the plaintiff never returned, then James Carter was to have her — in the absence of all other testimony, the plaintiff, upon his return, had the right to receive of James Carter, not only the negro woman, but the value of her services also ; and those facts would, therefore, constitute the transaction between Henry and James Carter a hiring and not a loan. 12.

If the jury believe from the evidence, that the plaintiff, intending to travel, placed the negro woman in controversy and her mother, in possession of James Carter (under whom defendant claims,) under an agreement that said James Carter should take care of said negroes for the plaintiff, and return them to him when demanded, and, upon the death of sai plaintiff, said negroes to be the property of said James Carter, then the statute concerning fraudulent conveyances does not affect the right of the plaintiff.

The first, second, fifth, seventh and eighth of which said instructions were given by the court; but the third, fourth, sixth, ninth, tenth, eleventh and twelfth were refused by the court, to which refusal the plaintiff excepted. The court then, on the application of the defendant, instructed the jury as follows : 1.

If the jury believe from the evidence, that defendant, Feland, bought the negro woman in controversy from one Hogan, and Hogan got her by gift from one James Carter, who was his father-in-law ; and that defendant, Hogan, and said James Carter together, had held adverse possession of said negro woman, for five years before the commencement of this suit, they will find for defendant. 2. When a person has the possession of personal property, - claiming such property as his own absolutely, it is an adverse possession. 3.

That, if the plaintiff, when he was about to leave the state of Tennessee, placed the negro slaves in controversy in the possession of James Carter, who was to retain the possession of them, but was to re-deliver them to plaintiff, if he came back, but if he did not, said slaves were to be the property of said James Carter, and that by virtue of said agreement, they remained in the possession of James Carter, until he gave the woman to Hogan, and that he did so give her, and that Hogan sold her to defendant, and defendant had no knowledge of the claim of plaintiff, and that said woman had remained in the possession of James Carter and those claiming under him, as above set forth, for more than five years before the sale to defendant and the commencement of this suit, without demand made and pursued by due process of law, they will find for defendant. 4.

That, if the plaintiff placed his negroes in the possession of his brother, James Carter, for an indefinite time, and that James Carter was to keep the negroes and clothe and feed them, and pay their other necessary and usual expenses during plaintiff’s absence, and was to pay the plaintiff no consideration for the use of said negroes, then there was not such a consideration as would take the case out of the statute of fraudulent conveyances. To the giving of which said instructions by the court, the plaintiff objected, but the court overruled the objection and the plaintiff excepted.

Yerdict and judgment were rendered for the defendant, and the plaintiff filed his motion for a new trial; which was overruled by the court, and the case is brought to this court by writ of error.

Upon this statement of the case, it will be seen, that three questions arise, of much importance in the settlement of this cause between these parties : First, The competency of the evidence in relation to James Carter’s statements ; secondly, In relation to the right of the plaintiff to recover damages for the child of the woman, Winny, which died after the demand made in this case, and after the conversion alleged; thirdly, As to the loan of the negro woman, Winny, and the possession of her for five years, under the 5th

section of the act concerning fraudulent conveyances. R. C. 1845, p. 527. In regard to the statements of James Carter, this court is of opinion that such evidence was clearly incompetent. James Carter claimed title under the plaintiff, and the defendant under Carter. Now to permit the defendant to prove what Carter said in support of his own title, would be very much like permitting him to give his own statements in evidence for himself; this is too absurd to notice further. If James Carter was a competent witness, then he or his deposition should have been produced.

It was erroneous to let his statements be given in evidence. As to the second question, this court is also of opinion, that the court below ruled against the law. In actions of tro-ver, or of trespass de bonis asportatis, the plaintiff is entitled to recover damages, to the value of the property converted or carried away, at the time the conversion or trespass took place. Therefore, if after demand and refusal to deliver, the negro child died, and was, at the time of demand made, the property of the plaintiff, he was entitled to recover the value of the child at the time of demand.

By the action of trover, the plaintiff seeks for damages to the value of his property, and a judgment confirms the title of the property in the defendant, or at least, execution and satisfaction thereon will pass it to him, from the date of the judgment. It has been ruled otherwise in detinue ; for it is said, there, the plaintiff still seeks, the property in specie, and he disaffirms the trespass, or the taking and detaining; but even in this action, some courts have permitted recovery for full value to be had, although the property sued for, be dead, at the time of the verdict.

However, it is not necessary for this point to be settled now, as it does not arise in this case. The action here is trover, and there is no doubt of the plaintiff’s right to recover for the value of the negro child which died after demand and refusal, and before judgment, if he was entitled to the negro, at the time the demand was made. On the third point, we think the court also erred. The facts in the case show, that the negro woman had not been in this state five years before suit was brought for her. She was brought here in the spring of 1844, and the suit was commenced in December, 1847.

She had not been'in this state long enough for her then possessor, the defendant in this action, to set up claim to her under the statute of fraudulent conveyances of this state, the 5th

section of which is as follows: “ When any goods or chattels or slaves shall be pretended to have been loaned to any person, with whom, or those claiming under him, possession shall have remained for the space of five years, without demand made and pursued by due process of law, on the part of the pretended lender, &c., &c., the same shall be taken, as to all creditors and purchasers of the person so remaining in possession, to be void, and that the absolute property is with the possession, unless such loan, reservation or limitation of use or property, was declared by will or deed in writing, proved or acknowledged and recorded, as required by the preceding section.” Now this statute is invoked here, to embrace the possession of this negro woman, whilst with James Carter, in the state of Tennessee.

This court is of the opinion, that this statute has no such extra-territorial force; that it can not be made to cover and embrace the case of possession of slaves out of this state. In the case of Finch v.

Rogers, 11 Humph. (Tenn.) Rep. 559, the Supreme Court of Tennessee held, that a verbal loan of slaves, made in North Carolina, where the slaves were then situated, but afterwards brought by the bailee to the state of Tennessee, the loan not being made in reference to the removal of them to Tennessee, was not within the act of 1801, chap. 25, which declares, that verbal loans shall be declared in writing, proved and recorded within five years, or the title shall be with the possession.

In this case, the court said: “Did the legislature intend any thing more, than to regulate the right of property, and prescribe a rule for our own citizens ? We think not. It is not to be presumed, that the legislature intended to regulate the rights of persons or things, without the limits of its own territory, however indisputable their authority to do so ; and it should not be so held, unless the words of the statute clearly import that such was the intention. Such was the exposition of this statute, in the case of Loving v.

Hunter, (8 Yerg. 432,) in which we are disposed to acquiesce ; and therefore, we hold, that the act does not apply to a loan of property made in another state or country where the property was at the time situate.” It is not te be supposed, that the legislature of Missouri intended by this act to operate upon the transactions of men in another state, concerning their property in such state. The court below, then, erred in this point in this case.

The possession of James Carter cannot be considered adverse to the rights of the plaintiff in this suit; at all events not until he assumed the ownership to himself, and did some act by which strangers or purchasers might take it for granted that he was such owner. The sending of this negro woman to Missouri to his son-in-law, might be considered such

an act as would induce purchasers to believe him the real owner; and from that act, adverse possession might- begin to be estimated. But then from that act, the time is too short to claim title by adverse possession; it was not for the space of five years. From the facts on the record, James Carter never pretended to be tbe owner, or to set up any claim in himself, until he supposed his brother, the plaintiff, was dead — then he would be the owner.

He supposed his brother dead in 1844, when he sent the negro to Missouri, but in this he was mistaken, Under these views of the law arising on this case, the court below erred. The instructions given to the jury contrary to this opinion were erroneous — those refused to be given, and which set forth principles in accordance with the views of the court herein expressed, ought to have been given ; it was error to refuse such. The judgment of the court below is reversed, the other judges concurring, and this case is remanded for further proceedings in accordance with this opinion.