Julius Becht v. Judith Martin and others, 37 Tex. 719

Walker, J. In 1840 Peter Martin was the acknowledged slave of Wiley Martin. This slave had come to the country with his master before the Revolution; and it would seem he had endeared himself to his master, by fidelity and good conduct, to such a degree that his master, being a member of the Texas Congress, obtained a special act, which was approved by President Lamar, on the 3d of January, 1840.

By this act of the Congress of the republic, Wiley Martin was permitted to manumit his slave Peter, on condition of his giving a bond in the sum of one thousand dollars, conditioned that Peter should not become a charge upon the republic, and especially upon the county of Fort Bend. On the 11th of May, 1842, Mr. Martin by deed in writing manumitted Peter, and gave the required bond. By his will, dated in 1833, which, however, was not probated until the 30th of May, 1842, he gave Peter his freedom.

It appears that Peter had, long prior to the date of his own freedom, connected himself, in such marriage as slaves were permitted to contract, with Judith, one of the appellees, Peter at the time being of eighteen years of age, and Judith but sixteen. They lived together as man and wife up to the 10th day of April, 1863, hiring the time of Judith from her master, in order that she might enjoy the society and companionship of her husband. Of this cohabitation and commerce a large family of children were born, but one of whom seems to have survived their father, and she is a party to this suit.

In 1856, Peter Martin purchased lots 11, 12, 13, and 14 in' block 123, in the town of Bichmond, in Fort Bend county, on which he erected houses and other improvements. Sujrposing that some advice he had received on the subject was reliable, and that be, though a free man of color, made free by a special act of Congress, could not hold property in his own name, he caused the title to the property he had purchased to be made to William Byon, who held the property in trust for him and his heirs.

Very shortly before his death, Peter executed an instrument of writing in the words and figures following: “ The State of Texas, ) “ County Fort Bend. j “ I, Peter Martin, a free colored man, do hereby appoint J. S. “ Sullivan my agent and attorney, hereby revoking all former “ appointments of agents or attorneys. And I appoint the “ said J. S. Sullivan my agent for the purpose of having him “ to attend to all of my business during my life, and to attend “ to the renting or selling of my present homestead in Bieh- “ mond, after my death. I also own one cow, branded and “ marked as the stock of Mrs.

Polly Byon, and counter-brand- “ ed with my brand, together with the increase of two or three “ calves, all in my brand, which stock I also wish my agent to “ sell.

My instructions to my agent are, that, so soon as my “ homestead, the title to which is i/n, William, Ryon, and the “ stock shall be sold, he shall take charge of the purchase-money, “ and keep the same, or put out safely at interest, and pay out “ of it to my wife, from time to time, such sums as she may “ need, until the same is exhausted; and in the case of her “ death, any balance that may be on hand is to be exhausted “ by my agent for the benefit of my children:—I hereby giv- “ ing to my said agent full and ample power to perform all the “ above named business. “Witness my hand, this second day of April, A.

D., 1863. his “ Peter M Martin. mark. “ Witness: “ J. A. Jones, “ G. W. Davis.” It was probably in pursuance of the duties and trust pointed out in this instrument, that Byon deeded the property on the 18th day of August, 1863, to Sullivan; and Sullivan, on the day following, in consideration of two thousand two hundred and fifty dollars, in Confederate money, sold and deeded the property to Julius Becht. It now becomes necessary for us to determine what was the status of the appellees, at the time of Peter Martin’s death and the execution of the several deeds referred to.

Peter Martin died subsequent to the emancipation proclamation of President Lincoln, and it has been and may still be contended, by the ablest jurists of the country, that the emancipation of the slave should date from the, date of' the executive proclamation. The question has been otherwise decided from this bench by a majority of the court, and whatever may now be the individual conviction of the writer of this opinion, it is unnecessary here to review the former- opinion of the court.

But it has always seemed to my own mind, to bp little short of -an absurdity to fix the date of emancipation upon that of the field order of a subordinate military commander, in preference to the date of the executive proclamation, the surrender at Appomattox, and the adoption of the thirteenth amendment to the Constitution; either of which dates would be more appropriate, give greater dignity to the event, and stand upon a much more logical foundation. We think the instrument of writing executed by Peter Martin just before his death, should be treated as the declaration of a trust.

Judge Sullivan, the trustee, evidently so understood it. Whether, then, Judith Martin and her children were slave or free at the date of Peter’s death, and at the execution of the deed, it matters not. It was settled.in Purvis v. Sherrod, 12 Texas, 168 (which case was followed in Webster v. Corbett, 34 Texas, 263), that a slave could be made the beneficiary in a trust, and the trust abide the change of condition—such as the freedom of the slave and removal from the State—to become effective as a bounty to the slave. Apply the principle to this case. The trust was declared by the deed to Sullivan.

The deed from Byon to Sullivan vested the property in him, subject to the trust; and although Judith and her children may have been slaves at the time, on their emancipation they became entitled to the bounty—the trust became effective for their use. But one more question remains to be disposed of in this case. The property was sold to Becht for Confederate money. The sale was illegal; and the property is not discharged of the trust, in his hands. The question of rents and profits and improvements is probably fairly settled by the verdict of the jury, and the judgment of the court.

This case has been managed with great ability throughout, reflecting much credit upon the able counsel on both sides. It now becomes our duty to affirm the judgment of the District Gourt, Affirmed,