text:
    Gibson, Plaintiff in Error, v. Gibson et al., Defendants in Error.
    5L. Where it is sought to invalidate a will on the ground that the alleged testator’was under undue influence, and was at the time of the signing the will of unsound mind by reason of intoxication, declarations made by him to the effect that he had never made the will — that if he had signed it they had got him drunk and made him do it, for he had no recollection of it — -are inadmissible in evidence.

      Error to Cole Circuit Court„
    This cause comes to this court upon the following agreed statement of facts : On the 26th day of September, 1853, Edward H. Gibson, one of the defendants, produced to the clerk of the Miller county court an instrument of writing as the last will and testament of Hugh Gibson, deceased ; which was admitted to probate as such; and which said instrument of writing and the probate thereof are as follows : — [Here follow the will and the probate thereof. It is unnecessary to set them forth. By the will, all the property of the said Hugh Gibson was devised to Edward H. Gibson and wife and to their children, the testator cutting off his other children with one dollar each.] In October, 1853, the plaintiff, a son of said Hugh Gibson, filed his petition contesting the validity of the will on the grounds that the testator was under the undue influence of Edward H. Gibson and his wife, and was, when he signed it, of unsound mind from intoxication. These facts were denied by Edward H. Gibson and his wife, and thereupon an issue was made up as required by the statute. The cause was submitted to a jury. It appeared in evidence that Hugh Gibson, at the date of the will, was about seventy years old, and of more than ordinary vigor of intellect of his age, but addicted to intoxication, and when intoxicated incapable of transacting business; that he lived with Edward H. Gibson, who transacted his business ; and that the will was in Edward H. Gibson’s handwriting. The plaintiff then offered to prove by John Bromley and-others that in 1851 or ’52, the testator said that he had never made the will; that if he had signed it, they had got him drunk and made him do it, for he had no recollection of it; that he was duly sober and in his right mind when he made these declarations. To this evidence defendant objected, and the objection was sustained. The plaintiff excepted, and took a non-suit with leave to move to set the same aside, which motion having been made, was overruled by the court.

      jEdwards and Gardenhire, for plaintiff in error.
    I. The court erred in rejecting the declarations of the alleged testator. (Swinburne on Wills, p. 998-9 ; 1 Sto. Eq. 211 ; 1 Yes. Sen. 284 ; Broom’s Leg. Max. 282 ; Smith v. Fenner, 1 Gall. 170 ; Jackson v. Kneiffer, 2 Johns. 3 ; Beel v.- Beel, 1 Hawks, 268 ; Trimmer v. Payne, 7 Yes. 517 ; Rambler v. Try'on, 7 S. & R. 90.)

      Parsons and Batts, for defendants in error,
    cited 2 Johns. 31; Moritz v. Brough, 16 S. & R. 403 ; 1 Gallison, 170; Provis v. Reed, 5 Bingh, 435 ; Nelson v. McGiffert, 3 Barb. Oh. 158 ; Den d. v. Yan Oleve, 4 Wash. O. O. 262.
   LEONARD, Judge,

delivered the opinion of the court.

Upon an issue of “ will or no will,” the declarations of the alleged testator are offered in evidence — sometimes as part of the transaction — sometimes as verbal acts (as they have been called) indicating the mental condition of the testator — and at other times as a mere narrative of facts, entitled to credit as such on account of the relation of the speaker to the subject matter. Whenever the declarations can be considered as falling within the first class of cases, they are of course admissible, upon the common doctrine of the res gestee, and the only question then is, whether they are so connected with the main fact to be proved as to fall within the rule. They are also clearly admissible when the condition of the testator’s mind is the point of contention, or it becomes material to show the state of his affections, and they are then received as external manifestations of bis mental condition, and not' as evidence of tbe truth of the facts he states. For this purpose, and as a mere narrative of facts j we do not think they ought ever to be received, and this seems to be the general doctrine of the authorities, although there are certainly conflicting decisions on the subject.

In the English case of Provis v. Reed, decided in 1825, (5 Bingh. 435,) which was a real action by the devisee against the heir at law, and in which the will was impeached on the ground of fraud and undue influence in obtaining it, the heir, after having given other evidence on the point, offered the declarations of the testator, made after the date of the will, to the effect that “the devisee (who was a stranger in blood to the testator) had been trying to get his property, but that he should not have'it; that Scott (the attorney who prepared the will) had drawn up a paper, and they had got. him to sign it, but that it was not worth a farthing, and that his land should go to his family”. The court rejected the evidence, declaring that declarations of this character, tending to impeach the validity of the instrument, had never been received. And it is believed that there is no English case contradicting this, although the previous equity case of Nelson v. Oldfield (Vernon, 76) is the case generally referred to as an English authority to let in such declarations. It is to be observed, however, that the point to be there decided was whether a will of personalty, proved in the spiritual court, could be controverted in a court of equity ; and, although it appears that the complaints of the testatrix, during her last sickness, as to the means by which she had been induced to execute her will, were read in evidence, no objection was made to the evidence, and the question as to its admissibility was not brought to the attention of the 'court, but the matter passed sub silentio, without any judgment of the court' upon the question. In Jackson v. Kniffen, decided in New York, in 1806, (2 John. Rep. 31,) the declarations made after the will were to the effect that the instrument was not his will; that he had been forced to sign it, and would have been murdered had he refused to do so ; and were rejected by the court upon the ground that they were not competent evidence of the facts stated. In Smith v. Fenner, (1 Gall. Rep. 174,) tried before Justice Story, in Rhode Island, in 1812, the defendant, who claimed as heir, in order to prove that the will under which the plaintiff claimed as devisee was obtained by fraud and imposition, offered in evidence the declarations of the testator, made before, at the time, and immediately after the making of the will, and also his declarations made long afterwards and during the last seven years of his life. The defendant objected to the last declarations, and they were rejected ; but the others were received, no objection being made to them. In Moritz v. Brough, decided in Pennsylvania, in 1825, (16 Searg. & Rawl. 405,) after proof that the wife was a high-tempered woman, with considerable control over her husband, who was'of easy temper, the declarations of the testator, made after the will, were offered in evidence to the effect that the will was not made according to his wish ; that he was plagued by his wife to make it as he did, and that he had made it as it was to get clear of her importunity,” were rejected by the court. In Comstock v. Hadlyne, decided in Connecticut, in 1830, (8 Conn. 263,) the question was as to the capacity of the testatrix and undue influence in procuring the will, and it having been proved that the testatrix belonged to the Baptist society, and her declarations about the time of making the will having been also proved, to the effect “ that the Hadlyne society or Presbyterians were about her as thick as bees to get her property,” it was claimed that these declarations were to be regarded by the jury as evidence of the facts thereby asserted. But the court, in which the cause was tried, decided otherwise, and held that they could be used for no other purpose than to prove the state of the mind of the testratrix as to sanity or insanity ; and -upon an appeal to the Supreme Court, it was there said : “ The question is whether the declarations of the devisor, made about the time of executing her will, tending to show that she was unduly influenced, ought to have been admitted in evidence. If it was claimed that those declarations were part of the res gestee, tbe time when made should have been precisely stated ; and if her declarations were not part of the res gestee, I know not on what prineiple they can be introduced as evidence of facts. Is a will or deed, valid upon the face of it, to be destroyed or in any way affected by the declarations of the devisor or grantor ? Some strong authority is necessary to support such a proposition. In the case of a deed, it would not be claimed. A will, to be sure, is ambulatory, and nothing vests during the life of the devisor. Still, however, it could be altered or revoked only in a legal manner.” In Robinson v. Hutchinson, decided in Vermont during the last year, (26 Verm. 38,) it was held that a testator’s declarations, made near the time of the execution of the will, are admissible for the purpose of showing the condition of his mind, but not to prove that undue importunity and influence were exerted over him, and that such testimony must be strictly confined to proof of weakness of mind, and can not be admitted to prove the facts stated in such declarations.

The cases, to which we have been referred as establishing the contrary doctrine, are the two from North Carolina—Reel v. Reel, determined in 1821 (1 Hawks, 250), and Howell v. Borden, decided in 1832 (3 Dev. Law R. 442). In the first ease, the declarations made after the date of the will consisted in statements of the substance of the will, as the testator understood it, which differed altogether from what appeared from the will itself ; and in the last case, the declarations were that the will was obtained by the fraud and undue influence of the principal legatee ; and in both cases they were received as legal evidence of the facts stated. The court, in stating the grounds upon which the evidence was allowed, remark, in Reel v. Reel, that, “ to reject the declarations of the only person having a vested interest, and who was interested to declare the truth— whose fiat gave existence to the will, and whose fiat could destroy, and in doing the one or the other could interfere with the rights of no one — involved almost an absurdity ; that they were not received as part of the res gestee ; and when received, it would'be the duty of the jury to decide whether they contained the truth, or were deceptive in order to delude expectants and procure peace.” And it is proper to remark here that Justice Spencer, who dissented in Jackson v. Kniffen, and Chief Justice Gibson, who dissented in Moritz v. Brough, both thought the declarations were competent evidence, and substantially for the same reason given in the North Carolina case, which seems also to be the ground upon which their admissibility was put by counsel in the English case of Provis v. Reed.

The idea of those, who think that these declarations are competent evidence, seems to be that they are exceptions to the general rule excluding hearsay evidence, upon the principle that lets in the declarations of the owner of property,- made while in possession against his own interest, as competent evidence against those who succeed to his rights. But the latter are received, not because the party had no interest to speak untruly, as in the case of a supposed testator, (which would let in all hearsay evidence,) but because what he said was against his own interest at the time of speaking, which the law deems a sufficient guaranty of their truth, to take such statements out of the rule excluding hearsay evidence. We can not but think however that the admission of such evidence would render testamentary dispositions very insecure, by opening a wide door for the interested and unprincipled to get rid of wills that stood in their way. To guard against fictitious wills, the law has provided with great care such solemnities to be observed in the making of wills as may effectually secure testators against being imposed upon in this respect; and, in order that wills, when duly made, may be carried into effect, and not be set aside after the testator’s death by pretended révocations proved by words only, it has also provided that they shall not be revoked except by a subsequent will, or by the physical destruction of the instrument by the party himself, or in his presence and by his sanction. We are aware that this evidence is offered,, not to revoke a will duly made, but to establish that it was never lawfully executed; but we can not shut our eyes to the fact that it is quite as easy to prove tbe .testator’s declarations, to tbe effect that tbe will was obtained from bim by violence or fraud, or undue influence, as that be said, “1 revoke it,” and that, in most cases, it will be quite as effectual with a jury. Again, these declarations, when correctly understood, and honestly reported by tbe witness, can not always be relied upon as a correct statement of tbe facts they contain. We all know that when men who have made their wills, or are about to make them, are questioned by expectants or tbe friends of expec-tants, or when such men, without being questioned, think proper to talk upon tbe subject, they do not always bold themselves bound to tell tbe whole truth. It is said to be something like tbe privilege of voting by ballot — concealment is here 'permitted, and deception is sometimes practiced. A testator may have reasons to wish for quiet, and when disappointments are to happen, tbe law puts it in his power to escape from tbe effects of them, and to avoid taking a part in tbe scuffles that are .to ensue about dividing bis property. And even men, who do not care about concealment, may often really intend to make a will in a particular way, or to alter one already made, and after declaring such intentions may change their minds. Hence it is that even those judges, who have thought the evidence admissible, have admitted that it is entitled to very little weight. Judge Ruffin, while arguing in Howell v. Borden in favor of the legal competency of the evidence, expressed the opinion that, even when ■ the declarations were satisfactorily proved, there were so many reasons for a testator to speak evasively, or even untruly, both of the execution and provisions of his will, besides that .of disavowing it in its actual form to be his will, as to prevent much attention from being paid to them by any body ; and he declared that if the testator lived long after executing the instrument, and had the possession of it, or could command it, or had it in his power to make another will, or to revoke the objectionable one, and did not, the just conclusion was that the declarations were never made, or were misunderstood, or were not serious, but intended to deceive.

The just result of tbe whole matter, we think, is, that these declarations, so far as they are relied upon to furnish evidence of the facts they contain, are mere hearsay, and that there is no ground, either of authority or reason, to exempt them from the rule of law excluding all such testimony. We repeat, however, what we have before remarked, that as mere verbal facts, external manifestations of what is passing within, they are always evidence of the testator’s intellect and affections for the time being, provided they are of such a character, either by themselves or in conjunction with other evidence, and are so connected with the making of the will in point of time, as to furnish any reasonable ground of judgment in reference to the testator’s mental condition at that time. Accordingly, in Norris v. Shepherd, (20 Penn. 475,) where a person absent from home had by will disposed of all his property to a mere stranger, after other evidence of insanity at the time, and that the testator lived on amicable terms with his sisters, who were his nearest relations, had been given, his declarations, made to a friend just before leaving him, in reference to insuring his life, ip which he said, “ I will not, as the little I have will go to my sisters,” were allowed as evidence of the state of his affections towards them, in order to strengthen the proof of insanity then before the jury ; the court remarking that, under the circumstances of that case, the kind relations of the testator with his kindred was proper evidence, and that these relations could only be shown by the testator’s acts and declarations towards them. So again in Waterman v. Whitney, (1 Kernan, Rep. 157,) the question was as to the mental capacity of the testator, and after evidence showing that his mind and memory were impaired at-and previous to the time of the making of the Will, and that he had not sufficient capacity to make a will, proof was offered and rejected in the original court that the testator had afterwards stated to the witness,-and repeated to others, at different times, up to his death, how he had disposed of his property in his will, which was in a manner entirely different from the actual disposition of it by the will in question. But upon an appeal the evidence was held to be admissible, taken in connection with the other evidence in the cause, as a mere fact, showing the want of mental capacity, without any regard to the credit due to it as an assertion of fact; and whatever may be thought of the correctness of the particular decision, the court expressly recognized, and indeed professed to act upon the distinction to which we have referred, between receiving a testator’s declarations as evidence of the asserted facts, and allowing them in evidence as mere facts, indicating of themselves the mental condition of the testator at the time they are made. It may frequently be a nice question to determine whether the declarations furnish any reasonable ground for a just judgment in reference to the condition of the testator’s mind at the time; and even supposing they do, the question still remains whether his mental condition at that time — whether before or after the date of the will — reflects any light upon it when the will was made, which is the point of time to which the ultimate investigation must be confined; but there can be no difficulty, we think, as to the general rule of law applicable to all such cases.

The present will having been established in the probate court, the allegation to vacate it was substantially that the testator’s son Edward and his wife had an undue influence over him, and that they procured him to execute the will when he was so drunk as to be incapable of acting. It is an agreed case as to the facts, which are, as far as they are disclosed, that the testator was about seventy years of age, and of more than ordinary vigor of intellect when sober; that he was addicted to intoxication, and when intoxicated incapable of transacting business ; that he lived with his son Edward, who wrote the will, and to whom, together with the son’s wife, he gave all his property, cutting off his other children with a dollar a piece. The will having beén made in 1849, the petitioners offered to prove that the testator, in 1851 or in 1852, declared to the witness and others that “ he never made the will; that if he had signed it, they had got him drunk and made him do it, for he had no recollection of itand this evidence having been rejected, the only question is, whether it ought to have been received. These declarations considered as mere verbal facts, it is very obvious, furnish no evidence whatever.of imbecility of mind, which,is a fact always embodied in the question of undue influence. Indeed they were not offered for any such purpose, but as competent evidence, to be submitted to the jury, of the fact substantially asserted in them, “ that the testator was so drunk, when he signed the will, as to be unconscious of what he did;” and for this purpose they were, we think, clearly inadmissible, and were rightly rejected. The judgment is therefore affirmed;

Judge Ryland concurring.


source: Caselaw Access Project

author: LEONARD, Judge,

license: Public Domain

text:
    Cawthorn et al., Defendants in Error, v. Haynes et al., Defendants in Error.
    1. Depositions to prove a will rejected by a probate court may, in a proceeding to establish the will, instituted in the circuit court under section 31 of the act concerning wills, be taken under the general law concerning depositions.
    2. Declarations, made by a testator at times before the date of the will that it is sought to invalidate, that the persons mentioned in the.will as legatees « should never have any of his property,” as also declarations made on divers occasions after such date, that “he had no will,” alone and unsupported by other facts, do not furnish any legal evidence whatever of incapacity on the part of such testator, or of undue influence, and are inadmissible in evidence.

      Error to Cedar Circuit Court.

    The facts sufficiently appear in the opinion of the court.

      F. P. Wright, for plaintiffs in error,
    cited 22 Maine, 440 ; 1 Jarm. on Wills, 75, 118 ; 8.Mass. 330 ; 9 Yerg. 339 ; 7 S. & R. 90 ; 2 Greenl. Ev. § 694; ,3 Dev. 442 ; Reel v. Reel, 1 ■ Hawks, 218 ; 17 Ala. 55; 7 Conn. 411; 7 Pick. 99 ; 1 Yes. jr. 11; 2 Atk. 56 ; 34 Maine, 162.

      JV'apton & Otter, for defendants in error,
    cited R. C. 1845, tit. Wills, § 18, 31; Logan v. McGinnis, 12 Penn. State R. 27; Baldwin v. The State, 12 Mo. 235 ; 9 Mo. 169 ; 1 Jarm. on Wills, 77; 2 Greenl. Ev. 690; Smith v. Eenner, 1 Gall. 170 ; 5 Barr, 441; Gooch v. Conner, 9 Mo. 394.
   LEONARD, Judge,

delivered the opinion of the court.

The only questions that were argued before us, in this case, relate to the refusal to suppress the deposition of one of the subscribing witnesses to the will, and to the exclusion of the testator’s declarations, made both before and after the date of the will. In reference to the first question, we remark, that the statute prescribing the manner in which the deposition of an absent subscribing witness may. be taken for the purpose of proving a will in the first instance before the probate court has nothing to do with this matter, and was never intended, nor is it understood in practice, to exclude a party from taking a deposition in the common form under the general law, when the proceeding is pending in the Circuit Court. The party, too, had notice of the time and place of taking it; but as he appeared and cross-examined the witness, the fact of previous notice was quite immaterial; and it sufficiently appears, from the whole deposition, that all the requisites of the statute were complied with on the part of the examining officers. These remarks dispose of the first point. Indeed the only real matter of controversy, as to the law of the case, is in reference to the excluded testimony. We had occasion to consider this question somewhat at large, at the present term, in the case of Gibson v. Gibson et al., and refer to that case for our opinion upon the subject, and shall proceed at once to apply the principles there laid down to the case now before us. We first remark that, although this case has been argued before us as if the validity of the will had been really contested on the ground of the testator’s mental incapacity, or of undue influence exerted over him, yet no evidence whatever was given at the trial, or even offered, tending to establish either fact, except the rejected declarations. The testator, it seems, gave all his property to his wife for life, and upon her death (there being no children) to the children of James Cawthorn and of Mrs. Worby — two-thirds to the first, and the remaining third to the latter family. He left, it seems, surviving brothers and sisters, and the descendants of such ; but what relationship, if any, existed between the testator and the children that were the subjects of his bounty, does not appear. The will was written by Mr. Caw-thorn, at his own house, and the circumstances attending its execution were proved by the subscribing witnesses. It was' dated in 1845, and the testator died in 1850 ; and all the witnesses spoke of the testator as a man of sound mind.' Mb. Cawthorn was appointed sole executor.

The defendant gave no evidence at all, except the previous deposition of one of the subscribing witnesses for the purpose' of contradicting him ; but offered to prove that the testator, on various occasions, before the date of the will, and afterwards up to the time of his death, stated that the legatees mentioned in-the will “ should never have any of his property;” and’also on several occasions afterwards that “he had no will.” The declarations made after the date of the will were relied upon, we suppose, respectively, as direct and implied assertions that' the party had never made a will, or that if he had, it had since been revoked; and the case of Gibson v. Gibson, already referred to, settles that if relied on for this purpose, they are' mere hearsay, and wholly inadmissible. It is insisted, however, that the previous declarations ought to have been received as' verbal facts manifesting the existing feeling and intentions*’ of the testator towards those who are claimed to have been' subsequently the subjects' of his bounty, and'the'after declarations’' as-manifesting a continuance of the' samé'feelings and purpose, so as to repel the presumption, that" might' otherwise' arise from" íhé’ dispositions of'the will, that'at"the time hé'mad'e it'his" feelings and purpose had undergone a change. The answer to this, we think, is that no foundation was laid for letting in proof of the testator’s feelings and purpose towards these children. It is true, declarations of an opposite character were received in Norris v. Shepherd (20 Penn. State Rep. 475); but other testimony had been previously given of what transpired at the making of the' will, and of the condition of the testator before and at the time, tending to establish insanity; and the kind relations and purposes of the testator towards his own kindred were then received in order to strengthen the improbability that, under these circumstances, he would have given all to a mere stranger, if he had been in his right mind at the moment of making the will. It was not supposed, we think, that the previous kind feelings and intentions of the testator, standing alone and unconnected with any substantive proof of incapacity, could be submitted to the jury as competent evidence, from which they might infer insanity in order to invalidate the will. And in the present case, we are clearly of opinion that the declared purpose of the testator that these children should not share his bounty, made before and repeated after the date of the will, wholly unsupported as it was by any evidence whatever of incapacity or undue influence, would not have justified the jury, in point of law, in finding against the will. We do not mean to say merely that, under the circumstances, the evidence was insufficient, in point of fact, to produce conviction ; but to declare, as a matter of law, that the declarations, alone and unsupported by other facts, did not furnish any legal evidence whatever of the testator’s alleged incapacity, or of undue influence, and of course their exclusion furnishes no ground whatever for reversing the judgment.

We do not discover any error in the record prejudicial to the appellants, and the judgment is therefore affirmed.


text:
    Blue, Respondent, v. Peneston, Interpleader, Appellant.
    1. A deed of gift of certain negroes, after reciting that the donor had long since had it in contemplation to give said negroes to his daughter, to he entailed upon her and her heirs, proceeded as follows : “ Now, therefore, know ye that in consideration of the natural love and affection that I entertain and feel for my daughter Susan M. Kerr, and in consideration of the more surely providing for her and her children a permanent property, I do hereby grant and bestow of my free gratuity, and for and in consideration as above expressed, to my said daughter Susan M. Kerr, and to heirs, separately and exclusively from all claim and interest of her husband, John K. Kerr, my negro woman Ellen and her infant child, and my negro woman Sarah, now and for some time past in the possession of John K. Kerr by permission, and to this end, only the more securely and effectually to obtain that object, I do thereby, for the consideration and to the end aforesaid, convey said negroes, Ellen and her child and Sarah, to Francis P. Peneston, in trust to hold the same for the sole and exclusive use and benefit of my daughter Susan M. Kerr, and to her heirs forever,” &c. Held, that the legal ownership of such slaves vested by virtue of said deed in Francis P. Peneston; that he held in trust for the exclusive benefit of Mrs. Kerr, to the exclusion of her husband.

      Appeal from Linn Circuit Court.

    Blue attached certain slaves as the property o£ John K. Kerr. Francis P. Peneston filed an interplea claiming the said slaves as trustee for Mrs. Kerr, the wife of the defendant in the attachment; and offered in evidence, to support his claim, the following deed, which the court ruled out as inadmissible: “ To all to whom it may concern: Take notice that I have long since had it in contemplation to give to my daughter, Susan M. Kerr, my negroes Ellen and Sarah, to be entailed upon her and her heirs, and in contemplation of this, my intention, I did, some three years since, place in the possession of John K. Kerr, her husband, said negroes, with instructions to my son Theodore Peneston to draw up for execution a proper instrument to that effect; and whereas, it has, up to this time, been neglected, and considering the uncertainty of human life, and still being desirous to carry into effect this my original intention and desire, now, therefore, know ye that in consideration of the natural love and affection that I entertain and feel for my daughter Susan M. Kerr, and in consideration of the more surely providing for her and her children a permanent property, I do hereby grant and bestow, of my free gratuity, and for and in consideration as above expressed, to my said daughter Susan M. Kerr, and to heirs, separately and exclusively from all claim and interest of her husband John K. Kerr, my negro woman Ellen and her infant child, and negro woman Sarah, now and for some time past in the possession of John K. Kerr, by permission, and to this end only the more securely and effectually to obtain that object, I do hereby, for the consideration and to the end aforesaid, convey said negroes Ellen and her child and Sarah to Francis P. Peneston, in trust to hold the same for the sole and exclusive use and benefit of my daughter Susan M. Kerr, and to her heirs forever ; and my said trustee is hereby authorized and empowered to do and perform all acts that may be necessary to be done and performed, the more effectually to carry out this my desire, and the proceeds of said negroes, from labor or otherwise, to be appropriated in like manner. In testimony whereof, I have hereunto set my hand and seal this 28ih day of February, 1848. R. P. Peneston. (Seal.)” '

      Clark and Turner, for appellant.

      Harris and Gardenhir-e, for respondent.
    I. The deed relied on by Peneston was not filed with his interplea, and was therefore on this account properly excluded. (16 Mo. 136.)
    II. It was no evidence of title in Peneston. The first clause of the deed conveyed an absolute interest to Mrs. Kerr, (2 Prest, on Estates, 355 ; R. C. 1845, p. 220 ; 21 Mo. 278 ;) the seeond, no estate at all at law, and no remedy to enforce the trust. (1 Prest, on Est. 146). The first clause must stand, the last being repugnant thereto must fall. (2 Greenl. Cruise, 360.)

      III. The deed shows that the negroes had been given to the daughter, and were in the possession of the son-in-law three years before its execution. The law raises the presumption of a gift. (3 McCord, 207, 506 ; 4 id. 228 ; 12 Texas, 407; 1 Bay, 232 ; 2 Nott & McCord, 98 ; 8 Hen. & Munf. 127 ; 1 Rich. Eq. R. 301 ; 11 Ala. 409 j 17 id. 330; 9 Geo. 539 ; 13 Mo. 36.)
   LEONARD, Judge,

delivered the opinion of the court.

The question is as to the propriety of the exclusion of the deed from the father, under which Peneston, the son, claims the slaves as trustee for his sister, Mrs. Kerr. We entertain no doubt as to the proper interpretation of the instrument. It vested the beneficial ownership in Mrs. Kerr for her own benefit to the exclusion of her husband, and the legal ownership in the claimant, Peneston, as trustee for his sister. That was manifestly the intention of the giver; it is sufficiently expressed, and it is our duty to make the deed effectual for the purposes of the parties, if it can be lawfully done ; and we are not aware of any rule of law that forbids it in the present case. Whether the slaves, had been previously given to the daughter, upon her marriage, or to the son-in-law, was not a question before the eourt at the time the deed was excluded. The instrument itself does not so state, nor does it state facts from which it is to be presumed by the court as a matter of law.

The judgment is reversed on account of the exclusion of the deed, and the eause remanded.


author: Scott, Judge,

text:
    Christy’s Administrator, Plaintiff in Error, v. Horne et al., Defendants in Error.
    1. A notice given under the provisions of the revised code of 1845, (see R. C. 1845, p. 998, § 1,) by one who had executed a promissory note as a security to the person having the right of action thereon, to commence suit forthwith against the other parties to- the note, naming them, is sufficient.

      2. Although no notice may have been given to produce such instrument, evidence may he given of its contents.
    3. In a suit upon a promissory note against A., B. and C., C. defended upon the ground that he was merely a security for A. and B., and had given notice to the plaintiff to commence suit forthwith against A. and B,, which plaintiff had not done — C. examined the plaintiff upon interrogatories under the fifth section of the twenty-fourth article of the practice act of 1849 (Sess. Acts, 1849, p. 98). By one of these interrogatories, plaintiff was asked to state who was principal upon said note and who securities. In answer to this interrogatory, plaintiff stated that C. was principal, “ for the reason that said note was given to secure the payment of the purchase money for a certain tract of land sold by said Christy, (plaintiff’s intestate,) in his lifetime, to said C., &c.” Held, that the reason thus assigned did not amount to new matter with section ninth of said article.

      Error to Dade Circuit Court.

    This was a suit brought by Whitsett, as administrator of Bainbridge Christy, deceased, against Wm. Horne, Andrew Horne, and A. M. Horne, upon a promissory note executed by said defendants in favor of said Christy. A. M. Horne answered, admitting the execution of the note, and averring that he executed the same merely as security for William and Andrew Horne; that he caused a notice in writing (now lost) to be served on plaintiff, requiring plaintiff forthwith to commence suit against the said Wm. Horne and Andrew Horne, which said notice the said plaintiff entirely disregarded, &c. The court gave the following instructions to the jury : “ 1. Unless the jury oelieve from the evidence that said A. M. Horne was only security to the note, and that he, after the action accrued, gave notice in writing to said Whitsett to commence suit forthwith against the principal debtor and all the other parties liable on said note, they will find for plaintiff. 2. It devolved on the defendant to prove that he gave notice in writing to Whitsett to bring suit against the principal debtor and all the other parties liable, and also that he was only security, and unless it has been so proved, they will find for the plaintiff the amount of the principal sum due and the interest.”
    The jury found for defendant. Plaintiff moved for a judgment notwithstanding the verdict, for the reason that defendant had in his anwer confessed the execution of the note sued on, and confessed the action, and did not bj his said answer or otherwise avoid said action ; that the finding of the jury is no defence to the payment of said note. This motion was overruled. A motion for a new trial was also overruled.

      F. P. Wright, for plaintiff in error.
    I. The law is well settled that, where the plea (and under our code the answer) confesses the action, and does not sufficiently avoid it, judgment will be given upon the confession of the plaintiff, without regard to the verdict. (1 Chitty’s Plead. 656 ; Roberts v. Dame, 11 N. H. 226 ; Staples v. Hayden, 2 L’d Raym. 921; 1 Salkeld, 178 ; Carthews, 370.)
    II. In order to release a security, he must require in writing the person having the right of action to commence suit forthwith against the principal debtor and the other parties liable. Consequently, the answer, which admits the execution of the note, which avers notice requiring plaintiff to commence suit against two of the makers of the note only, is not sufficient. Defendant should have required in writing the person having the right of action forthwith to commence suit against the principal debtor and other parties liable. (Taylor v. Birch, 13 Ills. 376; Carer v. Howard, 8 Blackford, 190.) In attempting to pursue the statutory remedy, he has failed to comply with the statute, and his defence was unavailable.
    III. The court erred in permitting in evidence the loose declarations of plaintiff as ■ to the notice. The notice, or rather the requisition to sue, constitutes the essential and sole cause of defence. He attempts thereby to exonerate himself from the payment of the note. In such cases, secondary evidence of the contents of the notice are inadmissible, unless notice to produce the original has been given. (McFaddin v. Kingsbury et al., 11 Wendell, 667 ; Faubolt v. Ely et al., 2 Devereux, 67 ; Lanouge v. Palmer, 22 C.om. L. R. 239; Grove et al., v. Ware, 2 Starkie, 174; Langdon v. Hulls, 5 Esp. 156.)
    IY. The court erred in permitting defendant to give evidence that he was only security. Plaintiff’s answer to the interrogatory was a direct answer, and the reason which he gave for his belief was not new matter within the meaning of the statute.

      JSTapton & Otter, for defendant in error.
    I. Evidence as to the contents of the notice to sue was properly admitted.
    II. The second point arises upon the exception to the explanation or answer given to the second answer of plaintiff to second interrogatory of defendant. This answer or explanation is allowed in conformity to the 9th section of 24th article of the practice act of 1849. It seems to conform to the letter and spirit of this action.
    III. An exception was taken to overruling the motion for a judgment non obstante. The issue made up in this case was certainly not an immaterial issue; it was at most only informal. If the latter, the statute of jeofails cured it after verdict. The material point of fact alleged in the answer was notice to plaintiff to bring suit on the note, and notice that if suit was not brought, he would not be further responsible as security. The notice was in conformity to the statute. The omission in the notice to request suit to be brought against himself as well as against the principal, can not affect the validity of the notice in any substantial sense. The request or notice can not vary and is not intended to vary the existing responsibilities of all the parties to the note. A simple request to bring suit on the note is sufficient; but certainly a request to bring suit against the two principals, he being the only other party to the note and security, is all that is requisite. It seems to be a mere quibble to say that a notice which really apprizes the party of every thing which it is requisite for him to know, namely, that unless suit is brought forthwith against the two principals, he (the security) will be no longer responsible, is not a notice within the statute. But however this may be, there was certainly no ground for judgment non obstante. (2 Tidd Prac. 953.) The question then is, whether the notice pleaded and proved was substantially defective. The notice was to bring suit against all the parties to the note, except the party giving the notice, and about him nothing is said. Is not this sufficient ? Cui bono include himself in the notice ? If put in or left out, wherein will such insertion or omission affect the interest of any body interested in the note ? It is impossible to see any. It could not prevent suit or hasten suit against himself; it could not affect his responsibility in any respect.
   Scott, Judge,

delivered the opinion of the court.

1. The notice to sue, as stated in the defendant’s answer, is sufficient. The objection to it is, that it requires suit to be brought against Wm. Horne and Andrew Horne, whereas it should have used the very words of the statute, and required that the suit should be brought against the 'principal debtor and other parties liable. This is a very nice objection, and we see no force in it; nor any reason why the statute should receive so strict a construction. In the case of Benton’s adm’r v. Lacy, (17 Mo. 399,) the words of the notice were, “ will no longer stand security for the principal debtor unless suit is commenced and prosecuted according to the law.” Though that notice was liable to the same objection as that now urged, yet the objection did not occur to any one. That notice was held to be sufficient.

2. We do not consider that any notice, under the circumstances, was necessary to the plaintiff to produce the notice with which he was served, requiring him to bring suit. The general rule is, that notice, to produce a notice, is not necessary, and the party may resort at once to parol proof of the contents of the notice, unless it appear that higher evidence is in his power. (3 Cowen’s Notes, 1198; 1 Greenl. Ev. § 561.) Here, inasmuch as the plaintiff was specifically informed of the de-fence on which the defendant relied, being his neglect to bring suit after notice requiring him so to do, and as it was averred in the pleading that the notice was lost, to permit him to insist on a notice to produce tbe notice with which he was served would be to entrap the defendant. Under the circumstances, nothing was so natural as that the plaintiff should have the notice with him, if it was within his power, if he expected to gain any advantage from it. If it was not in his power, he sustained no injury by reason of the omission to give the notice.

8. Under the 5th section of the 24th article of the practice act, (see Sess. Acts, 1849, p. 98, § 5,) the defendant examined the plaintiff as a witness, exhibiting interrogatories to be answered. Among others was the following interrogatory,: “ State if-you know who was principal on the Christy note, and who securities, if you know that either of them was security for the other?” This was answered as follows : “ I further state that said defendant, A. M. Horne, was principal in the said Christy note, for the reason that said note was given to secure. the payment of the purchase money for a certain tract of land sold by said Christy in his lifetime to said A. M. Horne. But I do not know who were securities in said note, nor do I know whether the said Wm. Horne and Andrew C. Horne, -his brother, were securities in said note or not; nor do I know whether they were or either of them was security for the other in said note.” The defendant, conceiving that this was new matter relevant to the issue but not responsive to the interrogatory, .filed an answer or explanation of the alleged new matter, denying its truth. This answer was read against the objections of the plaintiff. Now, whether the answer of the plaintiff contained such matter as would warrant the court in allowing the defendant to be a witness in relation to it is the question. It does seem that if the answer of the plaintiff be deemed to contain new matter, it would be an easy thing for a party, who wished to be a witness for himself, to obtain his end by filing interrogatories to be answered by his adversary. If the answer to the interrogatory put contained any thing but the monosyllable yes” or “ no,” he would then claim the right to testify. The plaintiff was asked who was principal in the note. He answered, and gave the reason for his answer. If he believed a fact, he must have had some reason for his belief ; and when he states why a fact is so, if the opposite party is permitted to controvert the reason, what is this but indirectly contradicting the answer itself. A party should not be permitted to answer in a way to make evidence for himself not responsive to the interrogatories ; but we consider that when he is called to answer a question, and he does so, and gives the reason for his answer, and that reason is such as if true would warrant the answer ; such reason can not be considered new matter within the 9th section of the 24th article of the act to which reference has already been made.

The objection in relation to the refusal of the court to enter a judgment notwithstanding the verdict has been answered in what was said in relation to the notice to bring suit. Reversed and remanded ; the other judges concur.


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    Harley, Plaintiff in Error, v. Stapleton’s Administrator, Defendant in Error.
    1. Where a note is given to secure money bet in this state on the election of a President of the United States, and a surety on said note, who knew at the time of signing the consideration for which it was given, is compelled by legal process in a foreign jurisdiction to pay the same : held, that he is not entitled to contribution from his principal.

      Error to Howard Circuit Court.

      Gardenhire, for defendant in error,
    cited R. C. 1845, p. 404, 540; 8 Mo. 8, 52; 8 Shep. 26; 16 Term. 538; 18 Term. 9 ; 10 Ala. 316; 11 id. 656 ; 1 Strobh. 82 ; 15 Conn. 28 ; 9 Barb. S. C. 316; 13 Penn. 601; 2 Kent’s Com. 458 ; Story’s Confl. of Laws, 203.
   Scott, Judge,

delivered the opinion of the court.

This was an action by a surety to recover from his principal a sum of money he was compelled to pay as such surety. The plaintiff signed a note as surety, given to secure a sum of money bet in tbis state on a presidential election. The court instructed the jury that if the note paid by plaintiff was given to secure a bet on the presidential election, and the plaintiff, at the time he signed the note, knew it was given for that purpose, the plaintiff can not recover. There was a verdict for the defendant.

In our opinion, the fact that the surety (Harley) was compelled by the judgment of a court in the Mexican dominions to pay the debt does not affect the merits of this controversy. The instruction given by the court assumed, and the court have so found, that the plaintiff knowingly entered into an illegal contract. Whether he paid the money voluntarily, or was' compelled thereto by process of law, it is equally against the policy of the law that he should recover in this action. We may presume that but for the plaintiff the contract would never have been made, nor the law violated. This is an attempt to obtain an indemnity for knowingly entering into an illegal contract. It is a rule that, whenever the party seeking to recover appears to have been in any respect contaminated with, or even privy to, the illegal transaction on which the claim is originally bottomed, his remedy, whether upon the primary consideration, or a security substituted for it, is gone. (Paley on Agency, 120.) If a surety to a note, securing a sum bet on an illegal wager, can recover against his principal by paying the sum secured, then the policy of the law which forbids the recovery of money lost at unlawful gaming would be defeated.

Judge Ryland concurring,

the judgment will be affirmed.

Judge Leonard not sitting.


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    Thornton, Respondent, v. Pigg, Appellant.
    1. Although a judgment at law may have been obtained by a mortgagee for the mortgage debt, he may also institute proceedings for a foreclosure of the mortgage and a sale of the mortgaged premises.

      2. If a mortgagee obtain a judgment for his debt, and at an execution sale thereunder should become a purchaser of the mortgaged premises, he wil^, hold them subject to redemption.
    3. Although a wife should join with her husband in the execution of a mortgage, she is not a necessary party to a proceeding under the statute to foreclose the mortgage.

      •Appeal from Henry Circuit Court.

    The petition alleged the execution of a mortgage of certain premises by the defendant Pigg and wife, to secure a promissory note executed by said Pigg and others to one Brehm ; that Brehm dying, his administrator obtained a judgment on said note against Pigg and the other makers thereof for $1646; that said administrator assigned said judgment to the plaintiff in the present action ; that Pigg paid upon said judgment the sum of $848 90, for which he is entitled to a credit; that the remainder of said judgment remains unpaid ; that said administrator assigned the mortgage to plaintiff; that “ by virtue of the premises, he is the owner of the said judgment, and of the said mortgage deed ; and is as such entitled to all the rights and privileges secured by said judgment and said mortgage; and he prays that the equity of redemption in the said real estate above described may be foreclosed, and that the said real estate so mortgaged as aforesaid may be sold to satisfy the said balance of the said judgment so due to the said plaintiff from the said defendant, John A. Pigg, as aforesaid.”
    A demurrer to this petition was overruled, and the court gave judgment for the balance remaining due upon the mortgage debt; decreed a foreclosure of the mortgage, and ordered a sale of the mortgaged premises ; and if the mortgaged premises should not be sufficient to satisfy the debt, then that the residue be levied of other goods, &c.
    A motion in arrest of judgment, made by defendant, was overruled.

      F. P. Wright, for appellant.
    I. The court erred in overruling the demurrer. Thé petition is not sufficient under our statute for the foreclosure of mortgages. It does not ask judgment for the debt, nor does plaintiff, as assignee, sue for the recovery of the debt.
    II. Defendant’s wife should have been made a party. (4 Kent’s Com. 198.)
    III. There having been a judgment on the note, the remedy on such judgment should have been exhausted before instituting other proceedings at law or equity.
    IY. The administrator had no right to assign the judgment and mortgage without an order of the county court.

      JVhpto?i, for respondent.
   Scott, Judge,

delivered the opinion of the court.

It is an irregular practice to move in arrest of judgment for defects in a petition, after a demurrer to the petition has been overruled.

We can see no weight whatever in the objections made against the regularity of this proceeding. It has always been the law that the mortgagee has three remedies against the mortgagor. He may file his bill to foreclose, bring an action at law for the recovery of the mortgage debt, and, after forfeiture, an action of ejectment for the recovery of the possession of the mortgaged premises. These remedies are concurrent. (Hilliard on Mort. ch. 31.) Moreover, it is the law of this state that if a mortgagee, as was done here, brings an action at law to recover the mortgage debt, and sells the mortgaged premises under execution and becomes the purchaser, he is just where he began, and will hold the mortgaged land subject to redemption. It is no ground for staying the proceedings under the statute for the sale of the mortgaged premises that there has been a judgment at law for the mortgage debt. Such an idea has no support in any. book that we have read. If the debtor will not pay the judgment, and no property can be found to satisfy it, why should he be restrained from a foreclosure ? Why should the creditor be embarrassed with the difficulties attending a sale of the mortgaged premises under a judgment at law for the débt secured by a mortgage ?

The 4th section of the BOth article of the practice act of 1849 prescribes, that all rights of action given or secured by existing laws, may be prosecuted in the manner provided by that act. The 8d section of the 17th article of the same act enacts that the relief granted to the plaintiff, if there be no answer, can not be other or greater than that which he shall have demanded in his petition as originally filed and served on the defendant; but in any other case, the court may grant him any relief consistent with the case made by the complainant and embraced within the issue. Under these provisions, we do not see why any objection should be taken to the want of a prayer in the petition for the rendition of a judgment for the debt. The proceeding was a statutory one, and the court was clearly empowered to grant such relief as was consistent with the case made.

’ There is nothing in the objection that the administrator could not assign the judgment. From any thing that appears, the plaintiff may be one of those to whom an administrator may by law assign the bonds and notes of the estate.

The wife is not a necessary party to a proceeding under the statute to foreclose a mortgage, although she may have joined in the mortgage deed with her husband in conveying away the premises mortgaged. (Reddick v. Walsh, 15 Mo. 538.) The other judges concurring, the judgment will be affirmed.


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    Johnson, by his next friend, Appellant, v. Noble et al., Respondents.
    1. An infant can not be a party plaintiff in a statutory proceeding for partition.

      Jlppeal from Buchanan Court of Common Pleas.

    Petition for a partition of real estate by Levi Johnson, an infant, by his next friend, R. H. Wrinkle. A demurrer to the petition on tbe ground of the incapacity of the plaintiff to sue as a party plaintiff in a suit for partition was sustained.

      Vories, for appellant.
   Scott, Judge,

delivered the opinion of the court.

It is obvious, from the tenor of the plaintiff’s petition, that this is an attempt to do by means of the process in partition what can only be done by a direct proceeding, instituted for that purpose. The petition takes it for granted that, if a judgment for partition is rendered, it will result in a sale of the premises sought to be divided. No one can be blind to the selfish and interested motives which often prompt applications for the partition of lands, in which the rights of infants are concerned. Such applications usually terminate in a sale,, whereby their lands are sacrificed and passed away to those who have been instrumental in bringing about a division of them. It is a. rule of law that a guardian can not convert the real estate of his ward into personalty. Courts of chancery can authorize such conversions under particular circumstances. Chancellor Kent says the power resides in a court of chancery to change the property of infants from real into personal, and from personal into real estate, whenever it appears to be manifestly for the infant’s benefit. (2 Kent, 242.) We all know how orders, in partitition for the sale of land are obtained. The commissioners appointed to make partition listen to the suggestions of the interested; in many cases, never go upon the land to be divided ; and, if it is the desire of the parties, they report, as a matter of course, that a partition in kind can not be made, and an order of sale follows. By this means, the rights of infants are sacrificed, as there is usually no one to be found to protect their interests when the sale is made. Courts can not be too sedulous in watching the rights of infants in these proceedings--; for they are made the means by which thousands of the helpless and unprotected are defrauded of their patrimony.

When applications are made in a direct proceeding to con.-vert real into personal estate, tbe courts should be satisfied, from the purest and most disinterested sources, that it is beyond all doubt manifestly for the interest of the infant that it should be done.

In our opinion, the statute does not contemplate that an infant should be a plaintiff in partition. It is no answer to say that he may be made a defendant, and thus a partition may be obtained. If an evil can not be entirely checked, that is no reason for multiplying the facilities by which it may be effected. The present case affords an instance in which the opinion we give will be productive of some benefit. The sixth section of the act to provide for the partition of land and personal property, approved December 1, 1855, provides that a copy of the petition and notice shall be served on all those who shall not have joined in the petition, and on the guardians of such as are minors or of unsound mind. From the language of this section, it would seem that it was not designed that the guardians of minors should be among those who could join in the petition as plaintiffs. The petition and notice are required to be served on all guardians without exception. It was not contemplated that they should join as plaintiffs like other parties, but that they should be served with notice. (See Gallatin v. Cunningham, 8 Cow. 364.) We do not consider that there is any thing contained in sections 3, 8, 12, 51, 52, 53, of the act concerning partition but what is entirely consistent with the construction we have put upon the 6th section of the act.

Judge Ryland concurring,

the judgment will be affirmed.


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    Terrill et al., Appellants, v. Boulware et al., Respondents.
    1. A,, in the year 1784, died intestate in the state of Virginia,, possessed of certain slaves, leaving a widow and two children — B., a daughter, and C., a son — him surviving; certain of the slaves were allotted to the widow as dower slaves, and remained in her possession until her death in the year 1816; B., the daughter, married and died before-her mother in the year 1812, leaving B., her husband, and several children her surviving. In 1816, after the death of the widow of A., proceedings for a partition of the dower slaves were instituted by C. against the children of B. j in this suit in partition B. appeared and acted as guardian ad litem for his children, and, an allotment having been made to jj.’s children, he took possession of the slaves so allotted, and afterwards brought them to the state of Missouri. Held, 1st, that B., by acting as guardian ad litem for his children in the suit in partition, did not become a party to such suit in such sense that he would be concluded by the judgment rendered in behalf of his children, nor would he be estopped thereby to controvert the title of hig children 5 2d, that by the law of the state of Virginia said slaves, upon the death of A., in the year 1784, descended to and vested in his heirs — B. and C. — subject to the widow’s dower 5 that the interest so vested in B. passed to B., her husband, and not to her children.

      Appeal from Randolph Circuit Court.

    Francis Conner, in the year 1784, died intestate in the state of Yirginia, possessed of the family of slaves in cóntroversy in this suit. He left bins, surviving his widow, Sarah, and two children, Paul Conner and Lucy Conner, the mother of the plaintiff's in this suit. Lucy Conner afterwards married Flem-ming Terrill, under whom the defendants in the present action claim title. Said Lucy died in the year 1812, leaving her surviving her husband Flemming Terrill, and several children, a poriion of whom are plaintiffs in the present action. The slaves in controversy were assigned to Sarah, the widow of Francis Conner, as her dower, and remained in her possession until her death in 1816. After her death, Paul Conner instituted a suit for a partition of these slaves against the infant children of his sister Lucy, who appeared, by their father, Flemming Terrill, as guardian ad litem. In this suit, an allotment of the slaves in controversy was made to the children of said Lucy; and their father, F. Terrill, took said slaves into his possession, and af-terwards, upon his removal to the state of Missouri, brought them with him and continued to hold possession of them until his death in the year 1853. Wm. F. Boulware, defendant, is in possession of the slaves in controversy, as executor of the will of Flemming Terrill, The facts stated above are admitted before this court, Tbe plaintiffs suffered a non-suit in tbe court below in consequence of tbe giving of certain instructions to tbe jury. These instructions it is unnecessary to set forth.

      Young, Clark and Davis, for appellants,
    cited Rev. Code of Yirg. 1819, tit. Wills, Descents, Slaves, p. 355, 382, 481; Wood v. Simmons, 20 Mo. 368 10 Mo. 372.

      JVhpton, Buckhartt, Prewit, for respondents,
    cited Dade v. Alexander, 1 Wash. Ya. 30; 2 Call. 470; Drummond v. Snead, 2 Call. 483; Bank’s adm’r v. Markberry, 3 Litt. 276; Ewing’s.heirs v. Handley’s heirs, 4 Litt. 346; 1 Tuck. Com. 331; Robinson v. Brock, 1 H. & Munf. 218 ; Chichester v. Yass, 1 Munf. 115; Ball v. Townson, 4 Watts & S. 559; 3 Gill & Jo. 384; Angelí on Lim. 206; Foulk v. Brown, 2 Watts, 209 ; 8 Barr, 184.
   Scott, Judge,

delivered the opinion of the court.

By the act of 1792 all negro and mulatto slaves in all courts of judicature within the commonwealth of Yirginia were held, taken and adjudged to be personal estate. Slaves being personal estate, a gift of them might be made by parol. But no question was raised in the court below whether the admissions of the testator, Terrill, were not evidence of a gift of the slaves to his children.

One point relied on was that Terrill, by acting, as guardian ad litem for his children in the suit for partition of the slaves, in which suit the slaves in controversy were allotted to his children, is now estopped from controverting their title. If the plaintiffs had set up a gift by their parent, such conduct would have been strong evidence in support of such a claim. If Ter-rill had been a party to the proceeding and the judgment in partition had not been appealed from, he would have been concluded, however erroneous it might have been, for the matter would have passed in rem judicatum. But we know of no rule which makes an attorney or guardian ad litem to a suit a party in such sense as would render the judgment conclusive apon Mm. In matters where admissions may affect the rights of the party, such conduct wouM be evidence against the party ; but we do not see on what principle he would be estopped from afterwards asserting his rights. If the plaintiffs would make this an estoppel in pais, we do not see that any of the elements of such a pretension exist in the case. An estoppel in pais arises where a party, by his conduct or admissions, induces others to act upon the faith of them; and where, if he were afterwards permitted to prove such admissions or conduct were false, such presumption would operate as an injury to the persons who were misled by them. In the present case, there is no pretence that Terrill by his conduct has induced any action of others whereby they would be injured if he were allowed to prove that the inference deduced from his conduct was false. The case falls witMn the principle, that the admissions of a party under a misapprehension of his legal rights do not affeet Mm.

The main point relied on by the plaintiffs is, that — as at the death of Francis Conner, the grandfather of the plaintiff, in 1784, slaves in Virginia were personal estate not descending like real estate — the title to and right to the possession of the dower slaves became vested in the administrator, who assigned them as dower to the widow, upon whose death they reverted to the administrator, who then distributed them according to the law then in force regulating the descent of real estate ; that reversions and remainders in slaves might be created by the act of the parties— but not by operation of law, wMch held the title and possession together; that therefore, in 1816, when the widow of Francis Conner died, the title to the dower slaves reverted to the administrator, who would then distribute them according to the law then in force regulating the descent of real estate; and that Mrs. Terrill, the daughter, having died before her mother, the tenant in dower of the slaves, the title and interest which would have vested in her, had she survived her mother, would, by law, be distributed among her children. We have said that slaves were made personal estate in Virginia by an act passed in 1792. Before that time, in the sale or transfer of them by deed or will, they passed as chattels, and were considered as real estate in the ease of descents. (Lee v. Cook, 1 Wash. 306; Walden’s Exec’r v. Payne, 2 Wash. 1.) The 48th section of the “ Act-reducing into one the several acts concerning slaves” (Rev. Code, 1819) provides that, if any person possessed of a life estate in any slave shall remove or voluntarily permit to be removed out of this commonwealth such slave, without the consent ©£ him in reversion or remainder, such person shall forfeit every such slave so removed and the full value thereof unto the person that shall have the reversion or remainder thereof.

On this section the reviser remarks: ‘-‘•The former laws provided for the cases of reversions against widows bolding dower slaves. These sections, as amended at the late revisal, apply to all persons holding a life estate in slaves, and secure the rights of remaindermen as well as reversioners ; the former law declared a forfeiture of the whole dower interest.” The 50th section of the same act uses the words “ when one or more slaves shall descend,'” &c. This provision was enacted in 1790, a period after the death of Conner. These references abundantly show that in Virginia, in 1784, slaves did descend like real estate, and that by operation of law a reversionary interest was created in them. Conner dying in 1784 and his slaves descending like real estate, the title to them passed to his children, subject to the widow’s dower. That such was the law of Virginia is clear from the case of Park’s Adm’r v. Rucker (5 Leigh, 149). In that case, as in this, the intestate died prior to the aefc of 1792, which made slaves personal estate. The doweress to whom the slaves were assigned died in 1820. The court remarked, “ this is the case of the heirs at law claiming the dower slaves after the death of the doweress ; and this is a clear legal claim ; for, after the assignment of dower, the administrator had nothing to do with the dower slaves. The widow had a life estate in them ; they never afterwards devolved to the administrator or formed any part of the assets.” In a note to this case by the reporter, who was renowned for his knowledge of the laws of Yirginia, it is said that the intestate died before the statute of 1792 was passed making slaves thenceforth personal estate. Prior to that statute, slaves were real estate (though subject to some very peculiar regulations) and the widow was entitled to dower of them ; the reversion, of course, belonged to the heirs at law. (See act of October, 1705.)

It is clear, then, that Mrs. Terrill, being an heir at law of Francis Conner, who died in 1784, had a reversionary interest in the dower slaves at the time of her marriage, and she dying before her husband and before her reversionary interest had vested in the actual possession, the doweress being still alive, the only remaining question to be determined is, whether, under such circumstances, her interest in the slaves belonged to her husband, or whether it became the property of her heirs at law, some of whom are plaintiffs in this suit.

It is to be observed that, from the view we have taken of this case, it is to be determined exclusively by the laws of the state of Yirginia. The parties were all citizens of that state when the facts transpired on which the determination of the controversy depends, and of course their rights must be ascertained and determined according to the laws of the place where the transactions -oecurred. Had the state of facts presented in this case arisen in Missouri our determination would have been different. In 1791, in the case of Dade v. Alexander, (1 Wash. 30,) it was declared that a feme sole being entitled to slaves in remainder or reversion, and afterwards marrying and dying before the determination of the particular estate, the right vests in the husband. The president stated that this was the constant decision of the old general court from the year 1653 to the revolution, and has since been confirmed in this court, in the cases of Snead v. Drummond, and Herd v. Upshaw; that it had become a fixed and settled rule of property. Judge Tucker, who wrote long subsequently to this transaction, says that such was the settled law of Yirginia at that day. (1 Tuck. Com. 331.)

From the view we have taken of this case, it will be seen that it does not become necessary to express any opinion in the various questions which arose on the trial respecting the statute of limitations. Judgment affirmed;

Judge Ryland concurring; Judge Leonard not sitting.


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    Smith, Interpleader, Respondent, v. Sterritt, Appellant.
    1. An appeal will lie from the decision of a justice of the peace on an inter-plea concerning property or effects garnished by virtue of an execution.
    2. No formal assignment of an account is necessary; any act showing an intent to transfer the party’s interest is sufficient.
    3. An assignee of an account, assigned for value previous to a garnishment by virtue of an execution against the assignor, has a superior right to the plaintiff in the execution, although the assignee may not have given notice of the assignment previous to the garnishment.

      Appeal from, Jackson Court of Common Pleas.

    Wm. B. Sterritt recovered a judgment before a justice of the peace against Henry Smith. Execution issued June 2,1855, and on the same day W. M. Belt was summoned as garnishee. Belt answered, admitting an indebtedness to H. Smith at the time of the service of garnishment in the amount of $55 for goods sold. After this answer was put in by Belt, A. E. Smith appeared before the justice and interpleaded, claiming the debt due from Belt as due to himself by virtue of an assignment from Henry Smith. Judgment on this interplea was, after a verdict by a jury in favor of the' interpleader, Smith, rendered in favor of the interpleader ; and an appeal was taken to the Commons Pleas Court of Jackson county. Upon the trial of the interplea, the interpleader, Smith, in proof of the assignment from Henry Smith, together with other evidence, introduced the following instrument: “ Independence, Mo., Feb. 19th, 1855. For value received, I assign to Asbury E. Smith all the accounts and indebtedness in this. [Signed] Henry Smith.” This assignment was written on the front leaf of a day-book of the said Henry Smith, which was also introduced in eyidence. Sterritt, the defendant in the interplea, duly excepted to the admisssion of the assignment above set forth.

      C. H. Thornton, for appellant.
    I. The court erred in permitting the instrument of writing purporting to be an assignment to be read in evidence. It was too vague, uncertain, and general in its terms to convey any interest; especially as the parol evidence introduced by the interpleader showed that all the items of accounts in the book, on the blank leaf of which the assignment was written, were, prior to its execution, transferred to the ledger. (See case of Crow & Lewis v. Ruby, 5 Mo. 485.)
    II. The court erred in permitting the items of account in the day-book to be read in evidence. If secondary evidence of this kind was admissible at all, the ledger to which the items had been posted was certainly the better evidence of the kind.
    III. Even if the law permitted the interpleader to interplead in a case of this kind, he, by his own evidence, showed that he had no right to complain of the garnishment, as there was no notice from him or the assignor of the intended transfer of the debt, until, not only after the debtor had been garnished, but had answered to the garnishment. (See Richards v. Gregg, 16 Mo. 417; Story on Prom. Notes, 131, note 2; Story’s Eq. 1040, 1047,1057.)
    IY. The court had no jurisdiction of the interplea in this case, and should have dismissed it without motion. (SeeR. C. 1845, p. 662, § 11; Garrison v. McAllister & Co. 13 Mo-579 ; Wimer v. Pritchart, garnishee of Tice, 16 Mo. 253.)

      Woodson and Chrisman, for respondent,
    cited Sickles et al. v. Patterson, 18 Mo. 479 ; Haase v. Stevens, id. 476 ; Sautier v. Kellerman, id. 509 ; Moon v. Turner, 19 Mo. 642 ; Aiken v. Todd, 20 Mo. 276.
   Scott, Judge,

delivered the opinion of the court.

The case of Daggett v. St. Louis Louis Marine and Fire Insurance Co. (19 Mo. 210) is in point to show that on the trial in a justice’s court of an interplea concerning property or effects garnished by virtue of an execution an appeal will. lie. That was a garnishment under an execution issued from a justice’s court. It may be observed that the provision respecting garnishments, under the act respecting justice’s courts, is different in its language from the section on the same subject in the statute in relation to executions. Indeed the case of Wimer v. Pritchartt (16 Mo. 252) is contrary to the practice both before and since it was made, as is apparent from the cases of Quarles and Thompson v. Porter (12 Mo. 76), and Colcord v. Daggett (18 Mo. 559). But it is unnecessary to pursue this subject farther, as we conceive the provision in the code of 1855 gives the right to an appeal.

We see no objection to the evidence offered in proof of the assignment. As it is to be presumed that each item of an account showed the time of its creation, a reference to the date of the assignment would show what was assigned. No formal assignment of an account is necessary. Any act showing an intent to transfer the party’s interest is sufficient for that purpose. On every principle, the entries in the day-book were superior evidence to the accounts in the ledger.

On the merits, this case is within the interpleader, Smith. He being a purchaser for value, his right is superior to that of any attaching creditor, although the debtor had no notice of the assignment previously to the service of the garnishment. The attaching creditor can stand in no better situation than the debtor. Although the subsequent assignee of an account who gives notice of his assignment to the debtor will be preferred to a prior assignee who has failed to give such notice ; yet, as between the owner of an account and his assignee, the assignment is valid ; and one who comes in by operation of law after the assignment can not occupy a more advantageous position than he under whom he claims. The authorities are ample in support of this doctrine. (Drake on Attachment, § 615.) In the case of Dix v. Cobb, (4 Mass. 512,) it was contended by counsel that the assignee was not protected in his assignment until he had given notice to the debtor, and the attachment being previous to the notice, would hold the trustee. But the court did not concur in this view, and held that, although the trustee had no notice of the assignment until after he was sued as trustee, yet, immediately on the assignment, the equitable interest in the debt, as between the parties to it, immediately passed to the assignee, and that the attaching creditor stood in no better situation than the assignor of the debt. To the same effect are the cases of Stevens v. Stevens, 1 Ashmead; Pellman v. Hart, 1 Barr, 263; Wakefield v. Martin, 3 Mass. 558. There is nothing in the case of Richards v. Grigg et al. (16 Mo. 416) that is inconsistent with the doctrine here maintained. That case turned on considerations not involved in this controversy. There, it was held that the negligence of the as-signee, in failing to give notice, was the means of a judgment being entered against the debtor, who was without fault, and therefore that the loss should fall upon him who was guilty of negligence. With the concurrence of the other judges, the judgment will be affirmed.


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    The State, to the use of Moutrey’s Administrator, Defendant in Error, v. Muir & Ritter, Plaintiffs in Error.
    1. Where money is collected by a constable on an execution, interest on the same at the rate of one hundred per cent, per annum can not, in a case of delinquency, be recovered against him or his securities from the time of a demand made previous to the return day of the execution, but only from such return day.
    2. Interest at the rate of one hundred per cent, can be recovered of the securities of a constable, in a suit on the bond of such constable.
    3. Such suit may be instituted after the expiration of the term of office of the constable ; and is properly cognizable in a justice’s court.

      Error to Jackson Circuit Court.

    This suit bas heretofore been before this court. (See report of the decision of Supreme Court, 20 Mo. 308.) It appears that after the money had been collected by the constable on the execution, and before the return day of the writ, it was demanded by the plaintiffs in the execution, Moutrey’s administrators ; and the court below, in the present suit, gave judgment against the constable’s securities for the amount collected and for interest on the same at the rate of one hundred per cent, per annum from the time of the demand.

      Hovey, for plaintiff in error,
    cited R. C. 1845, tit. Constables, § 11,-; tit. .Justices’ Courts, art. 7, §§ 23, 24, 25, 26, 28.

      Smart and Shirly, for defendant in error.
   Scott, Judge,

delivered the opinion of the court.

The only points of any interest in this case are those in relation to the rate of interest to be allowed, the time from which it is to be calculated, and the costs. The statute gives very heavy damages by way of interest against a constable for failing in the discharge of his duties in relation to the service of an execution. The instances are specially enumerated in which the hundred per cent, per annum may be recovered. Among them is not to be found a failure to pay over money collected on an execution on demand being made before the return day of the writ. The law authorizes the constable, in many cases, to collect money without an execution, and it is only where he has recovered money without a writ that he is liable for the hundred per cent, interest from the time a demand is made in case of a failure to pay over. The other instances in which that rate of interest is allowed, are, for failing to return a writ of execution, for a false return thereof, and for failing to have the money collected on an execution at the return day ready to pay over, or a receipt showing its payment. From this view of the law, it will be seen that the court had no authority to give the hundred per cent, interest from the time of a demand made before the return day of the writ. If the constable had the money ready at the return day of the writ, the law was satisfied. He could not be made liable for the hundred per cent, interest by demanding the money before the return day of the writ. (R. C. 1845, p. 665, § 23.)

We see no ground on which a doubt can rest as to the liability of the securities of a constable for interest at the rate of one hundred per cent, in the instances stated in the section to which reference has already been made. The 28th section of the 7th article of the act concerning justices’ courts is express, that when the suit is upon the bond the like recovery may be had as when the proceeding is summary. In prescribing that a suit may be brought upon the bond against a constable and securities, without any direction as to the manner in which it shall be instituted, the law must have designed that the suit should be conducted according to the ordinary mode.

There is nothing in the point made that the suit must be brought whilst the constable is in office. The return day of an execution may be the last day in his term of session.

The case of the State, to the use of Poor v. Steel, (11 Mo. 553,) is in point to show that this suit was properly cognizable in a justice’s court; and, notwithstanding the case of Pollock v. Hudgens, (12 Mo. 67,) we are inclined to adhere to the opinion in the former case. The defendants then were entitled to their costs. This court then will give such judgment as the court below should have given, reversing the judgment of the court below ;

Judge Ryland concurring.


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    Riley’s Administrator, Respondent, v. McCord’s Administrator, Appellant.
    1. A judgment of foreclosure and that the mortgaged premises be sold, &e., obtained in a proceeding under the act concerning mortgages (R. C. 1845 p. 749), may be revived in the name of the administrator of the mortgagee against the administrator of the mortgagor 5 and that too, although this judgment of foreclosure was obtained by the mortgagee as trustee of a third person.
    2. Although a petition for a foreclosure of a mortgage may be addressed to the judge “in chancery sitting,” and the petitioner styled “your orator,” and it be prayed that “ a writ of subpoena issue 5” yet if, in accordance with the prayer of the petition, a judgment or decree is rendered that the equity of redemption be foreclosed and the mortgaged premises sold, &c., the proceeding will be regarded as a statutory proceeding.
    3. An illegality in the grant of letters of administration can not be taken advantage of in a collateral proceeding.
    4. After judgment of foreclosure of a mortgage, it is too late to urge against the revival of the judgment by scire facias that the mortgage was voluntary.

      •Appeal from Callaway Circuit Court.

    This cause has been heretofore in this court. The decision of this court -will be found reported in 21 Mo. 285. The cause having been remanded to the court below, the defendant put in an answer in which he alleged that he had not knowledge &c., to form a belief as to the death of Riley, the mortgagee; and admitted the grant of letters of administration upon the estate of Riley to Chase, the plaintiff, but denied his right to administer upon the trust property which belonged to Riley in his capacity of trustee for Mrs. McCord. He alleged that Riley had no estate to administer upon except this judgment of foreclosure, &c., obtained against McCord in his own favor as trustee of McCord’s wife; that the decree of foreclosure was not obtained in a proceeding under the act concerning mortgages, but in a proceeding in chancery. Defendant also set up that the mortgages to Riley by McCord were voluntary, without consideration, and were never delivered to Riley, and that Riley never had any knowledge of them ; that the plaintiff, Chase, in taking out letters of administration upon the estate of Riley, had not complied with the administration law, in that he had not in his affidavit stated, to the best of his knowledge and belief, the names and places of residence of the heirs of the deceased, and that he died: without a will.

      The court struck out this answer, on motion of plaintiff. Exceptions were duly taken.

      Gardenhire,, for appellant.
    I. The decree sought to be revived was a decree in chancery, and the act regulating judgments and decrees governs it, and not the act concerning mortgages. As it concerns realty, Riley’s administrator had nothing to do with it. The heirs of the mortgagor and mortgagee were the proper parties. (R. C. 1845, p. 623, § 13, 14.) No sci. fa. having been issued within three years after the rendition of the decree, none could be issued afterwards. The judgment was in full force, to be enforced by execution, but the lien of the judgment was dead and past revival. The lien of the mortgages, not being merged in the judgment, remained ; but this is a proceeding not to sell the land under execution upon the judgment, leaving the purchaser to risk the validity of the mortgage liens, but to revive the lien of the judgment, and give the purchaser the benefit, not of the mortgage liens, but of the judgment lien.
    II. The judgment was held by Riley as trustee of Mary McCord, and, upon his death, the trust did not go to, nor can it be executed by, his administrator, but survived to be executed by a new trustee or by a sale of the estate for the specified trust upon a suitable bill in equity by the parties in interest.
    III. The answer shows that the judgment was voluntary and without consideration, and it will not be enforced. (1 Story’s Eq. § 176.) It will not enforce a voluntary contract. (Id. § 432.)

      Morrow, Jones and Hayden, for respondent,
    cited R. C. 1845, p. 750, § 4 ; Watkins v. The State, 7 Mo. 334; 4 Kent, 186 ; Com. Dig. tit. Chancery, 4 A. 9; Demarest v. Winkoop, 3 Johns. Ch. 145; Scott v. McFarland, 13 Mass. 309 ; Grace v. Hunt, Cooke (Tenn.) 344 ; Den. v. Spinning, 1 Halst. 471.
   Scott, Judge,

delivered tbe opinion of the court.

We see no difference between this case, as now presented, I and the case as it stood in 21 vol. Mo. Rep. 285. It was a l question in our courts at one time whether the proceeding under the statute concerning mortgages was one in equity, or one i at common law subject to the provisions of the statute. It was early settled that a proceeding to foreclose the equity of redemption of a mortgage under the statute was a proceeding at law, and was not governed by the rules of proceedings inequity. (Thayer v. Campbell et al. 9 Mo. 277.) It has also been the opinion that, notwithstanding the mode prescribed by the statute, a party might forego the statutory remedy, and pursue his rights in a court of chancery by a bill in equity. When a proceeding to foreclose a mortgage has been had, in order to determine whether it was under the statute or according to the course in chancery we must have recourse to the substance of the thing, and not to the rhetorical flourishes with which it may be accompanied. An examintion of the petition will show that, though the formal parts of it are expressed in language peculiar to bills in equity, yet, in substance, it corresponds with the statute, and pursues the mode therein prescribed. But that which we deem conclusive in relation to the matter is the judgment which was rendered in the cause. That judgment is in strict conformity to the statute, and is such a one as could only have been rendered in a petition under it. Had the proceedings been in chancery, there is a part of the judgment which it was not competent for such a court to give. The judgment, in default of the mortgaged premises satisfying the mortgage debt, awards a general execution against the lands and goods of the debtor. A court of equity has no authority to enter such a decree on a bill to foreclose a mortgage. If the mortgaged property will not satisfy the debt for which it was pledged, the remedy of the party is an action at law for the remainder of it. This is clear law, and we think decisive as to the question whether the proceeding to foreclose the mortgage was under tbe statute or in equity. (4 Kent, 192-3-4-5.) Tbe proceeding to foreclose tbe mortgage being a statutory one, tbe objection that tbe recovery of tbe administrator would not be assets is answered. It is enough that tbe statute requires tbe administrator to be tbe party. Besides, this being a legal proceeding, tbe legal right of tbe intestate passes to bis admin-/ istrator, who may assert it in tbe same manner that tbe intes-f tate would have done. It is not for tbe debtor to object, in a\ proceeding at law for tbe recovery of a debt by tbe trustee or his representative, that tbe debt will not be assets in bis bands. That is tbe concern of tbe cestui que trust.

Any illegality in tbe grant of letters of administration can not be taken advantage of in a collateral proceeding. They must be regarded as valid until they are regularly revoked. Moreover, tbe legal estate in tbe trust property was sufficient to warrant a grant of tbe letters of administration.

As to tbe objection that tbe mortgage debt waé a voluntary one, it may be answered with tbe remark, that, on a scire fa-cias to revive a judgment, nothing can be pleaded that might have been in the original action. After a judgment, it is too late to impeach the consideration on which it is founded.

Judge Ryland concurring,

the judgment is affirmed;

Judge Leonard not sitting.


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    Lawrence, Defendant in Error, v. Lawrence’s Executrix, Plaintiff in Error.
    1. The title to a slave may be transferee! by deed without actual delivery.
    2. A. conveyed by deed and delivered a slave to B. in trust to appropriate the hire of the slave during the life of A. to his, A.’s benefit, the slave to be delivered by B., upon the death of A., to C., a son of A. Held, that C. acquired an interest under this conveyance that could not be destroyed by any arrangement entered into between A. and B.; that A. could not, as against C., and without his consent, resume the entire ownership of the slave.

      Error to Callaway Circuit Court.

    ' This was an action for the possession of a negro slave named Sam. Plaintiff relied for proof of title upon a deed executed by defendant’s testator. By this deed, Edward Lawrence, defendant’s testator, sold and conveyed said negro boy Sam to one Rice, “ in trust however,” so the deed proceeds to declare, “ for the uses hereinafter mentioned, viz : said negro slave is to be by said Rice taken into immediate possession, and hired out, and the proceeds of said hire to be applied to my benefit during my natural life, and immediately after my death said slave is to be by said Rice delivered over to my said son James M. Lawrence, at which time said trust ceases,” &c.
    Defendant admitted the execution of this deed, and the delivery of the negro under it to Rice ; but set up as a defence, that the grantor, defendant’s testator, resumed possession of said slave as his own property, and cancelled the gift by the consent of the said Rice ; that the said deed was voluntary and without consideration ; that plaintiff had no knowledge of, and gave no assent to the conveyance, or to the delivery of the negro to Rice, until after the grantor had cancelled said gift, and had resumed possession of the slave ; that after he, the defendant’s testator, had resumed possession of said slave, he continued to hold possession of him adverse to Rice and the plaintiff for more than six years before his death, and that in consequence all claim of plaintiff is barred by the statute of limitations.
    The portion of the answer of which the above is an abstract was stricken out on motion of the plaintiff. Upon the trial defendant offered evidence to prove the truth of those portions of the answer so stricken out. This testimony was ruled out.

      Ansell and Gardenhire, for plaintiff in error.
    I. The court erred in striking out parts of defendant’s answer. The gift was incomplete and was revocable, and was revoked by the donor’s taking the negro back. The plaintiff was no party to it, nor did he know of it or assent to it until it was revoked. It was testamentary in its character.

      H. The court below erred in striking out that portion of the answer setting up the statute of limitations as a bar.
    III. The court erred in giving judgment for the negro, when bis value only was sued for.

      Morrow and Jones, for defendant in error.
   Scott, Judge,

delivered the opinion of the court.

Slaves, by our laws, are personal estate. It is said in the books that a gift by deed of chattels will pass the property, though there is no delivery of the thing given — the deed operating by way of estoppel. (Schwartz v. Chappell, 19 Mo. 304.) When the deed under which the plaintiff claims was executed, the statute requiring all gifts of slaves to be by will or deed duly proved or acknowledged and recorded was repealed. This case then stands on the effect of the deed at common law. In Morrow v. Williams, 8 Dev. N. C. 263, it is held that a deed will pass a title to a slave by way of gift, although there is no delivery of the subject of the gift. The law cited on the part of the defendant relative to the necessity of a delivery in order to a complete gift is applicable only to those cases in which a gift is attempted to be made without a deed — to cases where the transaction is by parol. Put the case in the most favorable light for the defendant, that the father had merely delivered a deed to Rice conveying the slave to his son from and after his decease. The deed, in such case, would not have been revocable. The gift would have been perfect and could not have been countermanded. The redelivery of the deed to the grantor would not have divested the right of the donee. It is well settled that delivery to a third person, for the use of the party in whose favor the deed is executed, where the grantor parts with all control over it, makes the deed effectual from the instant of such, delivery, although the person to whom the deed is so delivered be not the agent of the party for whose benefit the deed is made. Such a delivery to a third person is good, and the deed presently operates, and infants may assent to such a deed to themselves, and their assent is presumed until the contrary appears.' The deed is valid until he for whose benefit it was made disagrees thereto. (Gannons v. Knight, 5 Barn. & Cres. 671; Tate v. Tate, 1 Dev. & Bat. Eq. 22; Souverbye v. Arden, 1 Johns. Ch. 240.) But we see no ground for the objection that there was no delivery of the slave. The full legal title to him was conveyed to Rice, the trustee, and both the deed and slave were delivered to him. He was, according to the nature of the transaction, the proper party to whom the delivery should have been made, and his possession was the possession of the plaintiff, who was the remainderman.

The facts of the case furnish no ground for the application of the principles of equity relative to trust estates, voluntary assignments, or assignments for the benefit of creditors. Rice was not a trustee for the plaintiff. His was a perfect legal title, to be enforced in a court of law. On the death of Lawrence, the grantor, the plaintiff became possessed of the legal title to the possession of the slave, and Rice’s previous conduct with the grantor could not affect his rights. If, instead of hiring out the slave, as required by the terms of the deed, he permitted his cestui que trust to hold the property, that was a matter between themselves which could not affect the plaintiff. His right to the enjoyment of the property had not then accrued, and he had no right to interfere with the management of the previous estate in the slave. It did not concern him, and on no ground could he have maintained an action for the slave be- » fore the death of the grantor ; consequently, the law of the limitation of actions, as applicable to trustees, has nothing to do with his rights.

There is nothing in the objection that the judgment of the court is for the recovery of the slave, while the prayer of the petition is for damages. The petition, tahen with the affidavit and writ and its return, shows that the proceeding was for the claim and delivery of personal property. The third section of the 17th article of the act of 1849, warranted the court in giving such relief as was consistent with the case made and embraced within the issue, without regard to the prayer for relief. Besides, the record showed that the slave had been delivered to the plantiff on his writ of replevin ; consequently a judgment for his value, in damages, would have been erroneous. No amendment was necessary. The defect in the prayer in no way affected the merits of the controversy.

The other judges concurring, the judgment will be affirmed.