author: Mr. Chief Justice ENGLISH

text:
    Arnold et al. vs. McNeill.
    TVhere a bill of sale of personal property, expressed to be for a money consideration, contains a special warranty of title, warranting and defending against all claims in, through or by the vendor, he is an incompetent witness, on account of his interest' in the result, to sustain the title of his vendee, in a suit between him and others also claiming- under the vendor.
    The magnitude or degree of interest, nor the probability of the warranty being enforced, nor any supposed prejudice or bias on the mind of the vendor, is regarded in estimating the effect of the interest upon his mind; lie is incompetent if his interest be direct, certain and vested, however small.
    Where a person has executed a deed of trust, malting a gift of property, but reciting, among others, a money consideration, and then executes a bill of sale with special warranty, he is not a competent witness to defeat the title under, the deed of gift, in favor oí the bill of sale, upon, the principle that his interest is balanced.
    The rule in England, that no party who has signed a deed, shall ever be permitted to give testimony to invalidate the instrument which ho has so signed, has been overturned there, and our decisions favor the competency of the witness.

      Appeal from the Gireuit Court of Dallas County.

    Hon. Theodobic F. Sorrells, Circuit Judge.
    Wateins & Gallagher, for the appellants.
    The court erred in overruling the objections to the introduction of the deposition of Samuel Burke, because the deposition itself showed that Burke was incompetent as a witness. Greenlf. Ev., secs. 300, 393, 395; and because a party cannot be introduced to impeach any instrument executed by him, or deny that he has any title in the property. Greenl. on Ev.,page 30, see. 24; Randal vs. Phillips, 3 Mason 378.
    Tell & CarltoN, for appellee.
    We admit the general principle of law, that the warrantor of title to property, which is in controversy, is, generally, incompetent as a witness for his ven-dee, in an action concerning the title, if tbe effect of tbe judgment is certainly to render bim liable ; but if it is only to render it more or less probable that be will be prosecuted, tbe objection goes only to bis credibility. See .1 Qreenl., page 505. And in this case it would be most improbable that McNeill would ever attempt to enforce tbe warranty. {Ma/rtm vs. KeTky, 1 Shew. Ala. Hep. 188.)
    It is a familiar rule of law, that where tbe witness, though interested in tbe event of the cause, is so situated that tbe event is to bim a matter of indifference, be is still a competent witness. In a pecuniary consideration alone, it seem'3 to us the witness is doubly interested, on tbe side of tbe plaintiffs, if it is to be determined from the bill of sale, and deed of trust. But take tbe evidence of Glover, and no state of case could present stronger and greater pecuniary and parental considerations, than tbe one here presented, on tbe part of Sam. Burke for tbe plaintiffs in this suit. In elucidation of tbe principles above set forth, we refer your honors to 1 Qreenl. 527/ Starkweather vs. Matthews, 2 Hill 131/ JRoberts vs. Whiting, 16 Mass / Hiee vs. Austin, 17 Mass. 197 / Primee vs. Sheplm'd, 9 Pick. 176.
    It will be found also upon examination of authorities, that tbe interest, that now disqualifies a witness, is an interest in the event of tbe suit, and not in tbe question involved. Kmnie’s Lem Com-pendimn 348/ Pattingil vs. Broom, 1 Game’s Pep. 171/ Baker vs. Arnold, 11>. 276/ The People vs. Hm'rell, 4 Johns. Rep. 302/ Stewa/rt vs. Kip, 5 Johns. Rep. 255/ Pairehild vs. Beach, 1 Bay 266/ Buckley vs. Storer, 2 Day 521/ Wakley vs. Hartpt al., 6 Biovney 316/ Farrell vs. Perry, 1 Hayw. 2/ Porter vs. McOlwre, II). 360/ Ba/ring vs. Reeder, 1 Hen. & Mtimf. 165, 168/ Miles vs. O’Hara, 1 Serg. db Ra/wle Rep. 32, 36/ Phillips vs. Winchel, 1 Day SYO.

    It will also be found that a grantor in a deed, is a good witness to invalidate it. Knight vs. Packard, 3 McGord Rep. 71/ Me-Ferrer et al. vs. Powers et al., 1 Serg. <& R. 102/ Boerring ass. of Outtmg vs. Shippmg, 2 Binn. Rep. 165/ Simons vs. Parkins’, 1 BaAley & Oar. Rep. 62.
   Mr. Chief Justice ENGLISH

delivered the opinion of the Court.

This was an action of replevin, in the detinet, brought by Bu-fas E. Arnold, and wife Mildred M. and by Arnold, as guardian of Joel, Samuel, and Malcom McNeill Burke, minors, in the Dallas Circuit Court, against Hector McNeill, for the recovery of a girl slave named Louisa,. The writ was executed upon defendant, but returned not found as to the slave. The defendant pleaded non detinet, property in himself, and the statute of limitations, and issues were made up to the pleas. Afterwards, the death of Mrs. Arnold was suggested, the cause ordered to abate as to her, and to progress in the names of the other plaintiffs. The issues were submitted to the jury at the September term, 1855, and verdict and judgment for the defendant. The plaintiffs did not move for a new trial, but excepted to several decisions of the court made pending the trial, and set out the evidence in their bill of exceptions in order that the points reserved might be understood.

Louisa, was the daughter of Lizzy, and one of the same family of negroes in controversy in the case of McNeill vs. Arnold et al.

•. The evidence relied upon by the respective parties, to show title to the property, was substantially the same in the case now before us, as in the one already decided, and need not be stated again. The plaintiffs claimed under the deed of trust purporting to have been executed by Samuel Burke to Nathaniel Glover, conveying a separate property in the slaves, to the use of Lucy Ann Burke, the wife of Virgil J. Burke, for life, &c., remainder to her children, the plaintiffs (except Arnold) being her children. The defendant claimed the slave under a purchase from Virgil J. Burke, &c.

The court permitted the plaintiffs to read in evidence the deed of trust, with the certificates attached, upon parol proof of the registry acts of Mississippi. This was an error in their favor; and, of course, they do not complain of it here.

Glover testified, about the samn that he did in the other case, stating, in aádition, that be bad lost the letter written to him by Samuel Burke, making liim an agent to purchase the slave, &c.

The defendant offered to read in evidence the following deposition of Samuel Burke:

Interrogatory lsí. “ Are you acquainted with the parties to this suit ?

Answer. I am acquainted with Mr. Hector'McNeill, and have seen the children, except the youngest. I am not acquainted with Mr.' Arnold.

Interrogatory 2d. Examine the exhibit marked A, and state whether it is, or not a bill of sale executed by you to Hector Mc-Neill, of Dallas county, Arkansas ?

Answer. Exhibit marked A, is a quit claim bill of sale made by me to Hector McNeill.

Interrogatory 3d. Examine exhibit B, hereto annexed, purporting to be a copy oí a deed of trust executed by you to Nathaniel Glover as trustee for the use of Lucy Ann Burke and her children, purporting to bear date on the 15th day of March, 1841, and state whether or not you ever executed any deed of trust for any ne-groes to Nathaniel Glover for the use of Lucy Ann Burke, and if so, state when and where?

Answer. I have no recollection of making any7 deed of trust for negroes, or any other purpose, to Nathaniel Glover.

Interrogatory 4th. State whether or not you ever sent a $1000 to Nathaniel Glover in the State df Mississippi, and requested him by letter, or otherwise, to buy negroes with it, for you, about the year 1841, or any other timé?

Answer. I have no recollection of it.

Interrogatory 6th. State whether or not, you ever paid any amount of money for the girl Lizzy, referred to in exhibits A and B. If so, to whom, and what amount.

Ansicer. I never paid any7 to my reoollection.

Interrogatory 6th. State whether or not, you ever had the girl Lizzy, in your possession ? Or had any right to her ? Or ever knew you had a right, except from what Virgil J. Burke told yon?

Anewer. I never had any right to her, nor had her in my possession.

Interrogatory *Ith. State whether or not, you ever wrote Nathaniel G-lover a letter, requesting him to buy negroes for you ?

Answer. I have no recollection of it.

Interrogatory %th. State whether or not, you were in Noxube county, Mississippi, in March, 1841 ?

Answer, I have been in Noxube county; but don’t recollect the date.

Interrogatory 9th. Are you or not, satisfied in your recollection as to whether you executed a deed of trust, or any other writing to Nathaniel Glover, while in Noxube county, or did-you see him while there ?

Answer. I have no recollection of seeing him while there, nor of executing any,writing to Nathaiiiel Glover while there, or any other time.”

Exhibit Á, referred to in the deposition, is as follows:

“ Ivnow all men by these presents, that I, Samuel Burke, of the county of Christian, and State of Kentucky, for, and in consideration of the sum of five dollars to him in hand paid, the receipt of which is hereby acknowledged, does this day bargain, sell and convey unto Hector McNeill, of the county of Dallas, and State of Arkansas, all the right, title and interest he has, or may have, to the following described negroes: i. e., woman Lizzy, about thirty three years of age; with her daughters, say 'Louisa, about eleven or twelve years old; Aga, about eight years old ; Eliza, about six years old; Phoebe, about four years old; and Ann, about two years old ; the said negroes, the said Hector McNeill purchased of Virgil L Burke, of Arkansas, who purchased the mother of said family (Lizzy) of one P. Allen, of Monroe county, Mississippi; bill of sale given to me, Samuel Burke, dated 16th October, 1840, and sold of late by Yirgil J. Burke (who had the equitable title of said negroes) to Hector McNeill, as before named: this, then, is to convey all the right and title that I have to said negroes, with all their increase, &c., from me, my heirs, &c., unto him, said Hector McNeill, his heirs, assigns, &c. Warranting and defending against all claims against said ne-groes, in, through or by me in the nature of a quit claim. This 21st day of July, 1851.

his

SAMUEL BUBKE, [seal.]

mark.

The plaintiffs objected to the reading of this deposition, on the grounds that Samuel Burke was an incompetent witness, but the court permitted it to be read in evidence, and plaintiffs excepted.

The first ground of objection to the competency of the witness, is, that he was interested in the result of the suit, by reason of the clause of warranty contained in the above bill of sale from him to McNeill. That he warranted the title to the slaves, against all claims in, through or by him; and that the deed of trust under which the plaintiffs claimed title, and the execution of which the deposition of the witness conduced to disprove, was embraced by the warranty, being a claim under him; and if the plaintiffs recovered in the action, the witness would be liable over to Mc-Neill upon the warranty.

The purport of the bill of sale, is, that the grantor had the naked, legal title, which, for the consideration of five dollars, he conveyed to McNeill, with warranty against all claims under the grantor. There is no proof that the $5.00 was not really paid, but was nominal, and inserted as matter of form, nor is there any showing that McNeill had released the witness from liability upon the warranty.

The warrantor of title to the property which is in controversy, is generally incompetent as a witness for his vendee, in an action concerning the title. And it makes no difference in what manner the liability arises, nor whether the property is real, or personal estate. If the title is in controversy, the person who is bound to make it good to one of the litigating parties, against the claim of the other, is identified in interest with that party; and, therefore, cannot testify in his favor. 1 Greenl. Ev., sec. 397; 1 Phil. Ev. 108; Cowen & Hill's notes, part 1, note 96.

The magnitude or degree of the interest is not regarded in estimating its effect on the mind of the witness, for it is impossible to measure the influence which any given interest may exert. It is enough that the interest which he lias in the subject, is direct, certain, and vested, however small may be its amount; for interest being admitted as a disqualifying circumstance in an]*- case, it must, of necessity, be so in every case, whatever be the character, rank-or fortune of the party interested. 1 Greenl. Ev., sec. 391.

Where the vendor sells without warranty, express or implied, he is competent; or where his covenant of warranty is restricted to claims set up under himself alone, he is a competent witness for his vendee, in a contest between his vendee, and one not claiming under the vendor. Twambly vs. Henley, 4 Mass. 441; Bendelman vs. Foulk, 5 Watts 308; Adams vs. Cuddy, 13 Pick. 460; Bridge vs. Eggleston, 14 Mass. 245; Davis vs. Spooner, 3 Pick. 284; Lathrop vs. Muzzy, 5 Greenl. 450.

But, in the case before us, both parties claim under the witness.

Mr. GbeeNleaf further remarks, in see. 397, from which we have quoted, above, that: Ci If the effect of the judgment is certainly to render him liable, though it be only for costs, he is incompetent ; but, if it is only to render it more or less probable that he will leprosecuted, the objection goes only to his credibility,” (&e. '

The counsel of McNeill, availing themselves of this latter remark of Mr. Gbeicnleaf, say : “ That it would be a most improbable and preposterous idea to suppose that defendant would ever attempt, upon the plaintiff’s recovery, to go from Arkansas to Kentucky, to recover the consideration mentioned in the bill of sale, to wit: the sum offive dolla/rsf from the witness,

Mr. Gekknleaf cites no authorities in support of the above remark, which we have copied in italics, nor do we understand to what character of cases, he intended it to apply; but it has been held in adjudicated cases entitled to respect, that, tbe uncertainty whether the judgment will be used against the witness, will not make him competent. His competency does not depend on the certainty of using the evidence against him hereafter, but on the certainty that it may be used if wanting.” Lampton vs. Lampton's Exrs., 6 Mon. 619; Wallace’s Exrs. vs. Twyman, 3 J. J. Marsh. 461; Collett vs. Wiley's heirs, 2 Bibb 467. For, remarked the court, in the case last cited, as it is not in the power of the court to estimate the degree of interest a witness is capable of resisting, the law wisely rejects every one, whose right may be immediately affected by the determination.

"We have no means of determining what consequence McNeill may attach to the warranty, nor to what extent the liability of the witness thereon may have biased his testimony. The law, which does not regard the magnitude of the interest, has fixed a standard which we can follow, but if we depart from this, we are upon an open sea, without any certain guide.

It is moreover insisted by the counsel of McNeill, that the interest of the witness was balanced. They say: “ It appears from the deed of trust that the witness received ten dollars, as one of the considerations for executing the deed. There is no covenant of warranty, it is true, in the deed, but on the sale of personal property, the law raises an implied warranty, that the vendor had the right to sell the property mentioned in the deed; and, therefore, in this case, the beneficiaries in the deed would have the right to recover back from the witness, the §10 acknowledged to have been paid in the deed.”

It may be remarked in reference to this argument, that it is based upon the assumption that the witness did really execute the deed of trust, which is the very matter the defendant is seeking to disprove by the deposition of the witness. But aside from this, though it may be true, that a vendor of goods having possession, and selling them as his own, is held bound in law, to warrant the title to the vendee; (1 Greenl. Ev., sec. 398,) yet, there is no pretence that the witness sold the slaves to the beneficiaries in tlie deed ; on tlie contrary, it is manifest from the face of the deed, and the testimony of Glover, (if he is to be believed) that the witness made a gift of the slaves to bis son’s wife and her children. The $10 purports, on the face of the deed, to have been paid by Glover, the trustee, and not by Mrs. Burke, and ivas, perhaps, inserted as matter of form.

It is moreover insisted by the counsel of McNeill, that the plaintiffs being the grand-children of the witness, his prejudice iu tlieir favor, by reason of natural affection, would more than counterbalance any bias upon his mind in favor of the defendant because of the warrauty. ..

But it seems, also, from the testimony, that the defendant was related to the witness, likewise, perhaps a nephew, and we have no mode of determining with any certainty, which he had the stronger affection for, the plaintiffs or the defendant. We might conjecture that his attachment was stronger for those most nearly related to him, but this would not do to roly on as a rule, for it is not always true. The only safe rule, as above remarked, is to exclude the witness where he is interested in the result- of the suit, without regard to tlie magnitude of the interest.

The second objection taken by tlie plaintiffs to tbe deposition of Samuel Burke, is, that be was an incompetent witness to disprove tlie execution of a deed (the deed of trust) purporting to have been executed by him. There is nothing in this objection. It has been held, at one time, iu England, that no party who has signed a deed shall ever be permitted to give testimony to invalidate the instrument which lie has so signed. But this doctrine was overturned there, and our decisions favor tbe competency of the witness. See Tucker vs. Wilamowicz, 3 Eng. Rep. 157, and cases cited. Caldwell Exr. vs. McVicar, 7 Eng. R. 750. See, also, Knight vs. Packard, 3 McCord R. 71; 1 Serg. & R. 102; 2 Binn. 168, on the same subject.

On tlie grounds of interest, however, as we have above seen, tlie deposition of Samuel Burke should liave been excluded.

It may be well enough to remark tbat the case of McNeill vs. Arnold was reversed mainly upon tlie ground that such portions of Samuel Burke’s deposition, taken in that case, as were responsive to interrogatories which were not leading, were erroneously suppressed and excluded from the jury by the court. In that case, the competency of Burke was not questioned in the court below, nor in the argument here. His deposition was objected to, and suppressed on the ground that the interrogatories were leading. We could not consider .the question of incompetency here, because it was not made in the court below. Scott vs. Jester, 13 Ark. Rep. p. 442, and cases there cited. Gunter vs. Ashley, 15 Ark. 415; 1 Greenl. Ev., sec. 421. Had the objection, that the witness was incompetent on account of interest, been raised when the motion to suppress was made, McNeill would have had it in his power, if he had thought proper, to release the witness from liability upon the warranty, and retake his deposition. But had we affirmed the judgment upon the ground that the witness was incompetent; and, therefore, the deposition properly suppressed, though not for that reason, he would have been cut off from the privilege of executing a release, and retaking the deposition.

But, in the case now before, us, the motion to exclude was expressly made upon the grounds of incompetencv and in proper time.

The court below gave all the instructions asked by the plaintiffs, and refused to give those moved by the defendant, except the 3d, 5th, 8th and 9th.

The instructions given at the instance of the defendant, against the objection of the plaintiffs, so far as they differ from those given on the motion of the plaintiffs, were perhaps, based upon the testimony of Burke. As we have held that his testimony should have been excluded, it is unnecessary to consider the instructions based upon it.

The judgment is reversed, and the cause remanded, with instructions to grant the plaintiffs a new trial.


source: Caselaw Access Project

author: Mr. Chief Justice ENGlisii

license: Public Domain

text:
    Dobbin & Wife vs. Hubbard.
    At common law, the legal existence of the wife is merged in that of the husband by the marriage, and as a general rule, her contracts are void, and cannot be enforced against her in a court of law.
    But it is a rule m equity that a feme covert, in regard to her separate property, is considered a feme sole, and may, by her contracts, bind her separate estate.
    Where a married woman has created a charge upon her separate estate, as by executing a bond, bill, note, &c., the creditor has, as a general rule, no remedy, in a court of law, against her, but he must proceed in equity: and even in equity, she is not personally responsible.
    In order to charge the separate property of the wife, it is not necessary that she should execute an instrument expressly referring to it. It is sufficient that she professes to act as a feme sole: and shows an intention to charge her separate estate.
    A bond oxocuted by a feme covert, where the authority to do so is reserved by marriage contract, being void at law during the lifetime of the husband, is equally void upon his death, and cnlbrciblo only in equity against the separate estate of the wife upon the faith of which the bond was executed: and so upon the second marriage of the wife.

      Appeal from the Circuit Court of Phillips County, m Mquity

    Hon. Ciiaklks W. Adams, Circuit Judge.
    F-'iwlkk & Stillwell, for the appellants.
    The appellees bad. a complete remedy at law. The husband was liable. When the writing obligatory was executed, Mrs. Dobbin, had full power and authority to do it. It was expressly reserved to her by the contract with ber former husband, Fillow. During her widowhood, she might have been sued at law; and after her marriage with Dobbin, lie became liable for all lier debts then existing. There is nothing in the agreement between them, exempting him from liability for such or after contracted debts. 1 Pao. Air.p. SOY, Title Bcuron & Mhne.

      A feme covert, with respect to her separate property, is to be considered a feme sole, sub modo only; or to the extent clearly given by the marriage settlement. 2 Kent's Com. 138.
    It is a general rule, that upon marriage the bus,band becomes entitled to all the goods and chattels of the wife, and the rents and profits of the lands. 2 Kent's Gom. 113, 122, 123.
    We contend that the appellee could enforce his demand in a court of law only; and that he had no right to come into a court of equity for relief. Upon the marriage of the appellants, the legal existence of the wife became merged in her husband, and the title to the slaves in question vested absolutely in him.
   Mr. Chief Justice ENGlisii

delivered the opinion of the Court.

This was a bill filed by John M. Hubbard, in the Phillips Circuit Court, against Wilson D. Dobbin and -wife, Levisa, to enforce the payment of a debt out of the separate property of the latter. The case made by the bill is as follows:

That on the 12th of December, 1850, the defendant, Levisa, of Phillips county, Arkansas, and Napoleon B. Pillow, of Memphis, Tennessee, being about to intermarry, executed a marriage contract, with the view that the property owned by them respectively, might not be encumbered or charged, in consequence of the marriage, with any of the consequences incident thereto, either by the common law, or the laws of Arkansas; by which contract, it was agreed between them, after expressing the intention aforesaid, that notwithstanding the marriage, Pillow should hold and retain all his real and personal property, free from any claim of alimony or dower therein, on the part of the said De-visa, with power to sell and dispose of the same without her consent, &c. That the said Levisa should have free and absolute right, power and authority, to grant, bargain, sell, alien, enfeoff and deliver, any and all kinds of property which she then owned, or might thereafter acquire by gift, grant, purchase, devise or descent, whether the same be lands, goods, chattels, credits, bonds, bills, notes, or negroes, without the consent or assent of tbe said Pillow, and without bis joining lier in the sale, conveyance or delivery thereof, or in the execution of the title or deed therefor; it being the express understanding, between the parties to the contract, that none of the property, which either of them then owned, or might thereafter acquire, should be taken or held Subject to the payment of the debts of the other, whether contracted prior or subsequent to their marriage. That said Levisa should have the full right and liberty, after the marriage, to contract debts, and execute in her own name, evidences or notes for the payment thereof, without the consent or assent of the said Pillow: and by last will to devise to such persons as she might choose, any or all of her estate, real, personal or mixed, including slaves, &c., without advice, consent or approval of Pillow: and, in a word, to do all and every act or acts, in reference to her said property, while married, that she might or could lawfully do, if sole and unmarried. That during the marriage, Pillow was to have and exercise the sole dominion over all property which might be owned by said Levisa, so far as to receive the rents, profits, and annual products of the same, to the end, that it might be applied to the mutual support and enjoyment of the parties, &c., with this restriction, that the debts which the said Levisa then owed, were first to be paid out of the said income and profits.

That this marriage contract was duly proven and recorded in Phillips county; and, after its execution, the said Levisa and the said Pillow intermarried.

That on the 24th day of May, 1851, and during her coverture with Pillow, the said Levisa executed and delivered to the complainant, Hubbard, her separate obligation for $701. 53, bearing that date, due and payable on the day it was executed. That it was her intention, in the execution of said writing obligatory, to bind her separate property thereby, and that she did so bind the same.

That afterwards, on the-day of ■-, 1852, Pillow departed this life, and on the 24th day of January, 1853, the said Levisa intermarried with the defendant, Wilson D. Dobbin. That prior to their marriage, she and Dobbin also entered into a marriage contract, by which it was agreed between them as follows:

That notwithstanding their contemplated marriage, the joint property of the two should be used and controlled by them mutually during their coverture; and that, in prospect of death, the said Levisa reserved to herself the right, power and privilege of disposing of any or all of her property, which she may then own, by will or devise, to such person or persons as she may choose, without the advice or consent of the said Wilson D.: and in case of dissolution of their marriage, otherwise than by death, the property of each shall be returned to the one who may have brought the same with marriage. It is further agreed, that the annual proceeds of the mutual property of the parties should be applied, first, during their cohabitation, to their mutual support, and the residue, during that time, to such objects and uses as the said Wilson D. might desire or wish. This contract was also proven and recorded in Phillips county.

The bill further alleges, that at the time of the marriage of the said Levisa and Pillow, and at the time of the execution of the marriage contract between them, and since that time, and now, the said Levisa was and is possessed of a large amount of property, as of her own, and to her sole and separate use: and among which property were, and are certain slaves, five in number, which are described.

That the said obligation has not been paid by the said Levisa, or any one for her. , "

The marriage contracts and the obligation are exhibited.

The bill prays that the separate property of the said Levisa, including that above described, might be decreed to have been bound by the execution of said writing obligatory. That defendants be required to discover all of the separate property owned by the said Levisa at the time said obligation was executed, or at any time since. That complainant have judgment for his debt and interest; and that he have execution for the same against the separate property of the said Devisa, above described, or that a commissioner might be appointed to sell so much of said separate property as might be necessary for the payment of the debt and interest, at such time and place as the court might deem right and proper; and for general relief.

The defendants filed separate answers to the bill. So much of the answer of Mrs. Dobbin as is deemed material to be stated, is as follows:

She admits the execution of the marriage contract between her and Pillow: their intermarriage, and that while she was his wife, she executed and delivered to complainant the obligation exhibited with the bill, as alleged by the complainant. That Pillow died some time prior to the 21th January, 1853, but at what precise time, she was uninformed or advised. That she intermarried with "Wilson D. Dobbin on the day and year last named, and was still living with him as his wife. That at the time of her marriage with Pillow, and at the time when they entered into said marriage contract, and since then, and until her said marriage with Dobbin, she was possessed of a large amount of property, as of her own, and to her sole and separate use, and among which were the slaves described in the bill. She submits, that by her marriage with Dobbin, the slaves described in the bill, and all her other personal property passed to, and vested in him, subject only to the restrictions and reservations in her favor, contained in the marriage contract between them. She states that it is not true, as alleged in the bill, that it was her intention, at the time she executed the said writiug obligatory to complainant, to bind her separate property. That all she intended to do was, simply, to comply -with the request made to her by the complainant, and that was to execute and deliver said instrument; and she was willing that it might have just such effect as the law of the land would -give to it, and she submits to the court whether, under the state of the case, the said instrument had the effect charged in the bill. She admits the marriage contract between herself and Dobbin, as alleged in the bill; and that the writing obligatory, executed by her to the complainant, had not been paid by her, or by any one for her.

' The answer of Dobbin is substantially the same as that of his wife.

The case was heard upon bill, answers, replications and exhibits, and the court decreed that the writing obligatory, executed by the defendant, Levisa, to complainant, was a charge upon her separate property; that he have judgment for the principal and interest due thereon, and satisfaction thereof, out of her separate property described in the bill, and that a commissioner be appointed to execute the decree, &c. The defendants appealed to this court.

1. It is a well settled doctrine of the common law, that by the marriage, the legal existence of the wife is merged in that of her husband, and that, as a general rule, contracts made by her are void, and cannot be enforced against her in a court of law. Reeve’s Domestic Relations, 98, 170; Chitty on Bills 21; 2 Kent Com. 150; 2 Bright’s Husband and Wife 249. The special exceptions to this general rule are to be found in the books referred to, but having no application to the case before us, need not be mentioned.

2. But it is an equally well settled rule in equity, that a feme covert, in regard to her separate property, is considered a feme sole, and may, by her contracts, bind such separate estate. 2 Kent Com. 164; 2 Bright’s H. & W. 254; Adams’ Equity 45; Reeve’s Domestic Relations 164; Fire Ins. Co. of A. vs. Bay, 4 Barb. Sup. C. Rep. 407; Wylly et al. vs. Collins & Co., 9 Geo. Rep. 223. In some of the States, the English doctrine, that a feme covert, unless restrained by the instrument creating the separate estate, has the same power of disposition over it, if personalty, as a feme sole, is followed. In others, however, the feme is held to have only such power as is expressly given her. See Note to Adam’s Equity, p. 46, where the' cases pro and con are cited. But in this case, we are under no necessity of taking sides in this controversy, because the power to dispose of or charge by contracts, her separate estate, reserved by the defendant, Levisa, in her marriage contract with Pillow, was ample and-general. Nor need the effect of our “married woman’s law,” (Digest, chap. 104,) upon the power of a feme covert to dispose of, or charge her separate estate, be considered, because there is no feature of the case brought within its 'provisions.

3. Where a married woman has created a charge upon her separate estate, as by executing a bond, bill, or note, &c., the creditor has, as a general rule, no remedy in a court of law against her, for, as above remarked, her contracts are void at law; but he must proceed by bill in equity.

Mr. Peeve says, p. 164, the separate property of the wife is liable for her contracts made during the coverture, and, by process in equity, such property may be reached. But she is not liable to a judgment, on which execution issues; for, in this way, her person might be subjected to execution, and' thus, the husband’s right to her person would be violated.

Mr. Adams says, p. 45, in the absence of any fetter on anticipation, the wife has the same power over her separate property as if she -were unmarried. Her disability to bind her general property is left untouched; but she may pledge or bind her separate property, and the court of chancery may proceed in rem against it, though not m personam against herself.

Mr. BRIGHT says, vol. 2, page 254,255, the wife being considered as a feme sole in respect of her separate property, her contracts, for valuable consideration, with reference to such property, will, in equity, be enforced. But in all cases, the court must proceed against the property, as, although she may become entitled to the property for her separate use, she is no more capable of contracting than before. But when she is a defendant in a court of chancery, the suit being to establish a claim upon her separate estate, she is so far considered as a single woman as to make it necessaiy to serve her personally with process. Since the wife is liable only to the extent of her separate property, &c., the court merely operates upon it, and not against her personally. Her husband is a mere formal party, &c. See, also, 2 Kent Com. 164.

It is manifest from these authorities, that the woman is not personally liable, even in equity, as upon a valid contract, but that, the debt is regarded as a charge upon her separate estate, which the creditor is to enforce against it, by bill, in the nature of a proceeding in rem. The remedy of the complainant, therefore, against the separate property of the defendant, Levisa, in. the lifetime of her husband, Pillow, was plain enough, if the debt was really a charge upon such property.

4. In order that the separate property may be thus bound, it is not necessary that she should execute an instrument expressly referring to it,-or purporting to exercise a power over it. It is sufficient that she professes to act as a feme sole. For the Court of Chancery, in giving her the capacity to hold separate property, gives also the capacity, incident to property in general, of incurring debts to be paid out of it; and enforces payment of such debts when contracted, not as personal liabilities, but by laying hold of the separate property, as the only means by which they can be satisfied. Adams' Equity 46.

It is sufficient that there is an intention to charge her separate estate, and the contract of a debt by her during coverture, as by executing a bond, bill or note, &c., is a presumption of that intention; and it has been held that her separate estate was responsible without showing any promise. 2 Kent Com. (8th Ed.) p. 164; Reeves' Domestic Relations, 169; Vanderheyden vs. Mallory, 1 Comstock Rep. 443; 2 Story's Eq. Juris., sec. 1400; Coats et al. vs. Robinson et al., 10 Mo. Rep. 760; Bradford & wife vs. Greenway et al., 17 Ala. Rep. 279; Collins vs. Lavenburg & Co., 19 Ala. Rep. 683; Jarman & Co. vs. Wilkerson, 7 B. Mon. 293; Coleman vs. Wooley's Barr., 10 B. Mon. 320; Leaycraft vs. Hadden, 3 Green's Ch. Rep. 512; Bright's Husband & wife, p. 252, 253, 517, 518, et seq; Viser vs. Bertrand, 14 Ark. 267; Collins vs. Randolph, 19 Ala. Rep. 616; Boarman vs. Groves, 23 Miss. (1 Cushman) 280; 6 U. S. An. D. 342.

No doubt tbe presumption that a married woman intended to charge her separate estate, arising from the execution of a bond, bill or note, &c., by her, would be stronger or weaker according’ to the character of surrounding circumstances; and, without intending to declare a rule' as applicable to all cases, we think it sufficiently manifest, from the facts in this case, that the defendant, Levisa, by executing her bond to complainant, intended thereby to charge her separate estate, and the mode of denial in her answer is not sufficiently positive and direct to overturn the presumption, and put tbe complainant to additional proof. By her marriage contract with Pillow, she reserved her entire estate, with full power to dispose of the same in any mode she might think proper, with the right to make contracts, execute notes, and other evidences of debt, and generally to act as a feme sole in reference to her separate estate; her husband’s property not to be liable for her contracts, &c. And this marriage contract was put upon the public records of the county where she and the complainant resided. If, when she executed the bond to complainant, she did not intend to charge her separate property thereby, it was a mere mockery to make and deliver to him the instrument, and he was guilty of folly and nonsense in taking it, because, as we have seen, unless it operated to charge her separate estate, it could have no valid operation whatever, and was a null and void act, as she w'as not personally bound thereby.

5. The bond being void at law when it was executed, by reason of the coverture of the defendant, Levisa, it remained equally void after the death ,of Pillow, and could not have been enforced by an action at law, as a personal obligation against her, unless she made a new promise after she became discovert. Vance vs. Wells & Co., 6 Ala. Rep. 737; Same case, 8 Ala. Rep. 399; Lee vs. Muggeridge et al., 5 Taunton 36; 1 Eng. Com. L. Rep. 32; Chitty on Bills 22; Viser vs. Bertrand, 14 Ark. Rep. 267.

There being no right of action at law»against Mrs. Pillow, no personal liability resting upon her for the debt, Dobbin did not assume, by his marriage with her, any legal or personal responsibility to discharge the debt; and hence, the complainant had no remedy at law against him, or against him and her jointly, as he would have had upon a debt made by, her after the death of Pillow, and before she married Dobbin. The remedy of complainant remained in equity to charge the separate property of Mrs. Dobbin, upon the faith of which the bond was executed. And by the marriage, Dobbin took her property, if he took it at all under their marriage contract, charged with an equitable incum-brance in favor of the complainant

The court below rendered no personal decree against defendants, not even for costs, but the decree is strictly in rein, to be satisfied out of the separate property of the wife charged, and a commissioner appointed to execute the decree by a sale of the slaves.

The decree is affirmed; but as the time fixed by the court for the sale of the property, the 28th day of May, 1855, has passed, the court below, on the remanding of the cause, must, at once, make suitable directions for its execution.

Hon. T. B. Hanley, Judge, not sitting in this case.


author: Mr. Chief Justice English :

text:
    Dobbin & Wife vs. Wright et al.
   Mr. Chief Justice English :

The facts, pleadings and decree

in this case are, substantially the same, so far as they are material to the questions of law involved, as in Dobbin & Wife vs. Hubbard; and the decree is affirmed, and the cause remanded with like instructions to the court to make suitable directions for the execution of the decree, &c.

Hon. T. B. Hanley, not sitting in this case.


author: Mr. Chief Justice English

text:
    Machin vs. Thompson.
    The act of limitation of 19th December, 1846, (Digest, page 943,) makes no reservation in favor of non-residents or femes covert, and the courts can make none. (Pryor & wife vs. Byburn.)

    IVhere a slave is taken off and sold, without the knowledge or consent of the owner; and the vendoe purchases in good faith, for a fair price, without any knowledge of the adverse claim of another, the fraud of his vendor does not attach to him and prevent the operation of the statute.

      Appeal from the Circwit Court of Arkansas County in Chancery.

    Hou. Tiieodoeic E. Soeeells, Circuit Judge.
    Yell and Williams & Williams, for the appellant.
    CuMMiNS, for appellee.
   Mr. Chief Justice English

delivered the opinion of the Court.

On the 21st of December, 1853, Leah Machin, by her husband John Machin, as her next friend, filed a bill on the chancery side of the Arkansas Circuit Court, against Henry J. Thompson, for the recovery of a negro woman named Celia, and her children, with hire, &c. The cause was heard upon bill, answer, replication and an agreed state of facts.

The facts agreed upon by the counsel of the parties are, that on the 4th of October, 1819, Nancy llenwick, a resident of South Carolina, and the mother of Mrs. Machin, by deed of that date, conveyed to the separate use, &c., of Mrs. Machin for her life, and then to her children, a negro woman named Sarah, and her children, Spencer and Young, with the future increase of the woman. That at the time of the conveyance, Mrs. Machín was a married woman, and has since continued covert, the wife of John Machín. That afterwards Mrs. Machín and her husband removed to the State of Georgia, and from thence to Alabama, taking said slaves with them. That while they were in Georgia, about the year 1828 or 1829, the girl Celia was born of the woman Sarah. Complainant and her husband resided in Randolph county, Alabama, from the time they removed there until the filing of the bill. In theyear 1843, one Isaac B. Payne got possession ol the girl Celia, and without the consent or knowledge of Mrs. Mac-hín, took her to Memphis, Tennessee, where he sold her openly, as stated below, Mrs. Machin knowing nothing of her being taken to Memphis, or where she was taken from thence. Celia was offered for sale by Payne, at Memphis, and was bought by the defendant and his partner, Shanks, in good faith, without notice of any adverse claim or title to the negro, at her reasonable cash value in the market; and they took from Payne a bill of sale with warranty of title. Shanks immediately sold his interest in the girl to Thompson and endorsed a release thereof, upon the bill of sale to bim. She was delivered to him about the 1st of October, 1843, and in about three months thereafter he brought her to Arkansas, and held her in peaceable and uninterrupted possession from that time to the commencement of this suit, in Arkansas county, openly and adversely to all the world. Since defendant purchased her, she has had two children, Elizabeth and Jim. The value and hire of the mother and children, are also agreed upon. The defendant, in his answer, relied upon the limitation act of 19th December, 1846, as a bar to the relief sought by tlae bill.

The court dismissed the bill for want of equity, and tbe complainant appealed to this court.

More than five years had elapsed from the 19th December, 1846, tbe date of the limitation act relied on, (Digest,page 943) to the time when this suit was commenced, during all which period, the defendant held the peaceable adverse possession of the slaves, under bis purchase of the woman in the market; and the statute declares, that such possession shall vest in the possessor the right of property thereto, as against all persons, and may be relied on as a complete bar to any suit in law or equity.

During all this time, Mrs. Machin was a married woman, and a non-resident of the State, but we have held in Pryor & wife vs. Ryburn, at the present term, that inasmuch as the statute makes no reservation in favor of such persons, the courts can make none.

The counsel of complainant have referred to the case of Michan & wife vs. Wyatt, 21 Alabama Rep. 813, as an authority to show that a court of equity will exempt a feme covert from the operation of the statute. The real complainant in that case, though there called Mrs. Miehan, is doubtless, from the facts of the case, the same woman who is complaining here, under the name of Machin. From the report of that case, it appears that some of the same family of negroes, the descendants of Sarah, were levied upon and sold for the debts of the husband of the complainant. After the lapse of six years, she and her husband brought a bill against the purchaser, who relied upon the Alabama act of limitation as a bar ; and the court held that the suit was not barred, expressly upon the ground that there was, upon the face of the act, a reservation in favor of married -women.

It is moreover insisted by the counsel of the complainant, that the slave having been taken from her possession by Payne, and carried off, it was a fraud upon her rights, and that the statute would not run against her, until she ascertained where, and in whose hands the slave -was.

How the slave got into the possession of 'Payne, does not’ appear, but it is agreed that she was taken off and sold, without the knowledge or consent of complainant. The bill alleges that she did not ascertain where the woman Odia was, until a short time before bringing this suit, and the agreement of facts is understood to admit this to be true. The answer denies that defendant had any knowledge of complainant, or her right to the slave, until about the time the bill was filed. The case, therefore, stands briefly, thus: Payne, in fraud of complainant’s rights, took the negro to Memphis and sold her openly in the market.; the defendant purchased her in good faith, ior a fair price, without any knowledge of the adverse title of the complainant, and afterwards held her as his own property, under the title thus acquired, until after the period of limitation ran out. Under this state of facts, does the fraud of Payne attach to the defendant, and prevent the ■operation of the statute ?

If ibis suit were between Mrs. Machín and Payne — if, after fraudulently running off the negro, he had retained her, and kept his locality concealed from Mrs. Machín, or sold her to another with a full knowledge of the fraud, there are not wanting authorities to sustain the position in reference to general acts of limitation, that Mrs. Machín would be allowed the full period of limitation, in a court ef equity, to bring her suit after obtaining the information upon which to base it. See the remarks of Mr. Angel£ on this subject, in his work on Limitation, chap. 18. page 188, et seq., and the cases collected and reviewed by him. But how far the courts should apply this doctrine to the statute under consideration, or whether at all, it being a statute of title, as well as of limitation, we are not 'called upon now to decide, because the suit in this case is not against the party committing the fraud, or privy to it, hut against one purchasing in good faith, without notice, &c.

We find no authority to sustain the position, that the statute would not run in favor of defendant, because liis vendor obtained the slave by fraud.

It may be a bard case for Mrs. Machín to lose the slave, but it would be equally a hardship, for the defendant to surrender her and her children, with an account of hire for more than ten years after purchasing the woman in the market at her full value, and in good faith. Upon whom the loss should fall in such cases, was a question of public policy, to be settled by the Legislature, and they have determined it, we think, by the form in which the statute was passed. Scarcely any general law can be devised, by the imperfect wisdom of man, that will not operate hardly in some cases, however much it may tend to promote the public good.

The decree of the court below is affirmed.


author: Miv Chief Justice ENGlish

text:
    Trammell et al. vs. Thurmond et al.
    A decree is conclusive, only between the partios, or tiioir privies, and in relation to the same subject matter of litigation.
    Where a statute, providing for the recording of a deed (not acknowledged by the grantor) upon its being proved by tho witnesses, makes no provision for reading such deed, or a copy from tho record, in evidence, a certified copy thereof may be read, if not as primary, ac least as secondary evidence, on a showing that the original is lost, or not within the control of the party.
    YiTion a deed or bill of sale (not acknowledged) is attempted to be proved, so as to authorize its being admitted to record, it is not sufficient for the officer to certify, in general terms, that it was proven: it should appear from the certificate that tho witness was sworn, and that he stated that the party, whose name appears to tho deed, signed it, or executed it, or acknowledged that he had done so, or some such language, amounting to proof of the execution of tho deed. And it must appear that such proof was made by one of the attesting witnesses; unless it is made to appear that the subscribing witnesses are dead or cannot be had.
    dt. is a general rule, that a record not made in accordance with tho law relating to the recording of instruments, is incompetent evidence to prove the original: and so. a fortiori, as to a copy thereof.
    Tiie rule making deeds admissible in evidence in consequence of tlieir antiquity, is understood to apply to tiie original deed, and not to the copies. But where the original deed is lost and the subscribing witnesses dead, after the lapse of many years, an exemplification of an unauthorized record has been admitted as a link in a chain of corroborating circumstances tending to prove the execution of the original.
    By an'arrangement entered into between Richard Thurmond and Oakley, in the absence and without the consent or knowledge of Thomas Thurmond, for the purpose of putting his slaves out of the reach of his creditors, executions are issued on certain judgments against him, which have been paid, the slaves levied upon, sold, and bought in at nominal prices by Oakley, who conveys them to Richard Thurmond: Held, That these proceedings were a fraud upon Thomas, and void.

      Appeal from the Circuit Court of Ashley County in Chancery.
    Hon. JoiiN C. Murray, Circuit Judge.
    PiKE & Cummbss, for appellants.
    Tell, for appellee.
   Miv Chief Justice ENGlish

delivered the opinion, of the Court.

On the 2d of October, 1850, Henry Trammell and wife, Julia Ann, late Thurmond, James B. Wooldridge and wife, Celia, late Thurmond, William Thurmond, and James Hutchinson and wife, Juda, late Thurmond, filed their bill on the Chancery side of the Ashley Circuit Court, against Thomas J. Thurmond, and Rufus K. Denson and wife, Rebecca, late Thurmond, for the recovery of certain slaves and their hire.

The bill charges, in substance, that on the 8th December, 1826, Richard Thurmond, of the county of Hempstead, in the Territory of Arkansas, made and published his last will, &c., in due form of law; and after his death, which occurred in the year 1827, the will was duly probated and admitted to record, on the 10th March, 1828, before the proper court of said county, where he died. A certified copy of the will, and probate, is exhibited. That by said will, he devised as follows:

1st. “I will and bequeath to my wife, Judith Thurmond/all my negroes, young and old, male and female, during her natural lifetime, and as the negroes are now hired out to Allen M. Oakley, I will and bequeath that my wife, Judith, have all the profits arising from the hire of said negroes.”

Thirdly: At the death of my wife, Judith, I will and bequeath, that all my negroes as before mentioned, and their increase, be enjoyed and go to the proper heirs of my son, Thomas J. Thurmond forever, to be equally divided amongst all the children that he now has, or may have by his wife, Rebecca.”

That Judith Thurmond survived her husband, and departed this life about the-day of-, 1S33 or 1834, having, during her life, held and enjoyed the property given to her by said will.

That the defendant, Thomas J. Thurmond, is the same person mentioned in the will, and that complainants, Julia Ann, Celia, Juda, William Thurmond and the defendant, Rebecca Denson, are all the children which said Thomas J. Thurmond ever had by his wife, Rebecca, who departed this life many years since, &c.

That the following are slaves, or their descendants, owned and possessed by Richard Thurmond at the time of making said will, and at his death, and bequeathed as aforesaid:

Anthony, a man, aged about 35 years; Lona, a woman, aged about 22 years, and her children, Dave, John and Dinah; Violet, a girl, aged about 14 years. The value of the several slaves is alleged.

That the complainants, William, Juda, Celia and Julia Ann, at the time of the death of their grand-mother, Judith Thurmond, were infants of tender years, and totally unable to attend to their affairs, or protect their own interest; and said females intermarried with the parties respectively above mentioned, during their minority, and since their majority have never been discovert.

That immediately after the death of Judith Thurmond, said Thomas J. Thurmond, in violation of the rights of complainants, took possession of the negroes aforesaid, which were then in being, and has, ever since, held them and used the same as his own, with those born since, appropriating to himself their labor, hire, &c., worth in gross, to tho time of filing the bill, $4,000 or $5,000. That said Thomas J. is insolvent, &c., and threatens to run off the slaves, &c. That he had refused to surrender the slaves to complainants, on demand, claiming them as his own property, &c. That Denson and wife were colluding with him to deprive complainants of their interest in the slaves, &c.

Prayer for injunction, Receiver, that an account be taken of tho hire of tho slaves, and defendant, Thomas J., be required to pay the same, and for partition of the slaves, &c., among the parties entitled thereto, &c.

On the filing of the bill, a temporary injunction was granted, and Receiver appointed, &c.

Thomas J. Thurmond answered the bill at the April term, 1851. lie admits tliat bis father, Richard Thurmond, died in Hempstead county about the time stated in the bill. Does not know whether he made his will, as alleged, or not, but if be did, it was without the knowledge or consent of respondent. It was publicly said that be had made such a will, and that it was recorded in the county of Hempstead, but whether the copy attached to the bill, as an exhibit, is a true copy of the will said to have been made by him, respondent does not know. He admits that it purports to be a copy from the record of a will made by his father, but denies the validity of the bequests therein made as against the rights of respondent, or that it was his father’s intention, by said will, that the slaves therein referred to, should go to the complainants against the rights of respondent. Admits that Ins mother, Judith, survived his father, and died about October, 1853. That ¥m. Thurmond, the female complainants, and Mrs. Denson are his children, by his wife, Rebecca, and all she ever had, and that she is dead. lie denies that after the death of his mother, Judith, he took possession of the negroes mentioned in the will, and avers that he had possession of them, in his own right, long before her death. Admits the ages, and value of the slaves as alleged, and that they are of a stock of negroes that once belonged to his father, Richard Thurmond. Admits that complainants, "William, Jucla, Celia and Julia Ann, were infants of tender years, at tbe time of the death of his mother, Judith, and not capable of attending to their interest, and that the female complainants intermarried as alleged in the bill. That lie has had possession of the older slaves ever since, and long before the death of his mother and father, and of the younger ones since their birth, claiming them as his own property, and appropriating their labor to his own use. Admits that he is in debt, but denies that he is insolvent, or intends to run off the slaves. Admits that he had refused to deliver them up to complainants, and claims them as his own property. Denies collusion between himself and Denson and wife, &c. Does not know whether said will was the real last will of his father or not, but avers that he had no slaves to devise. That his mother had frequently said that his father had made such a will, but that it was done for respondent’s benefit, to protect the slaves against his creditors.

That on the 29th of March, 810, while respondent lived with his father and mother in Jackson county, in the State of Georgia, and was a minor, his father, tho said Richard Thurmond, being possessed of a considerable number of slaves, and out of debt, by deed of gift of that date, in consideration of natural love and affection, conveyed to respondent the following slaves: Lianoy, and her four children, named Bhoda, B&ubrn, Lida and Queen; also four children of Dinah, called Molly, Le%o, Elijah and Levi; and the second and third daughters of Tabbs, named Jenny and Lanny, making eleven in number: which deed of gii't was attested by two subscribing witnesses, and recorded in said county of Jackson, on the 24th May, 1810. A copy is exhibited.

That by deed of gift, bearing date 1st July, 1810, his father also convetyed to respondent, the following slaves: Old Polly, Dave, (blacksmith,) Dinah, Marlt, and Dcwnond; and about the same time gave the remainder of his slaves to his other son, Roland.

That about the year 1812, Richard Thurmond, with his wife, and respondent, removed from Georgia, to the county of St. Jenevieve, in tbe Territory of Missouri, taking w-itb them the slaves conveyed to respondent as above: and on the 8th January, 1814, said Bichard duly acknowledged the last mentioned deed of gift before a justice of the peace of said county, and caused the same to be there duly recorded. A copy is exhibited.

That in the year 1818 or 1819, respondent being about 18 years of age, his father and mother removed with him and the slaves aforesaid — all constituting one family — to Arkansas, and located in that portion of it, which afterwards became Hempstead county, where respondent purchased a farm, and settled thereon, with the slaves, his father and mother living with him.

Shortly afterwards, respondent being young, thoughtless and spoiled by his parents, he became reckless, extravagant, got largely in debt, and in bad health, so that by the year 1824, he had mortgaged some of said negroes, and sold others. In the fall of that year, being in bad health, &e., he employed and empowered his friend Bartlett Zachary, to take charge of his estate, manage his negroes, and pay his debts; and in the winter of 1825, respondent went to Pennington’s settlement, on the Saline river, (now in Bradley county,) taking but one negro with him.

After respondent left, his debts, amounting to over $3,000, pressing upon Zachary, his property was levied upon, and Zachary, finding it difficult to get along with the debts, in the year 1826, persuaded respondent’s father and mother to claim the property as their own, and to take the slaves, and hire them to Oakley and Poston. His father-being old, blind and childish, consented, laid claim to the slaves, and on the 8th of December of that year, leased the plantation and all the slaves to Oakley and Poston, for five years and twenty-two days, upon the agreement that they were to cultivate the plantation with the slaves, and out of the proceeds thereof, support respondent’s father and mother, pay his debts as fast as the proceeds would admit of, and to prevent the slaves from being sold therefor.

That among the claims that were pressing against the property of respondent, in the year 1826, were four judgments recovered against him by William Hickman, before a justice of the peace: executions issued thereon to a constable, returned, no property found, and transcripts cf the judgments filed in the office of the Clerk of the Circuit Court of Hempstead county. That Oakley and Poston, after entering into the agreement aforesaid, paid off said judgments: but afterwards, upon consultation with Zachary, Oakley, who was Clerk of the Court, concluded that, inasmuch as the expenses would be small, he would issue executions upon the judgments, and by colluding with the sheriff, have all the slaves of respondent levied upon and sold, and by conducting the sale privately, and preventing competition, purchase them in for the amount of the judgments, then convey them to respondent’s father and mother, and let them devise them to the children of respondent. Accordingly, on the 20th March, 1827, executions were issued upon the judgments, levied upon the slaves and their increase, then worth between $10,000 and $15,000, which were sold in a secret and fraudulent way, for small sums, purchased by Oakley, and conveyed by him, on the 4th May, 1827, to Rickard Thurmond and wife, according to said agreement, (except one slave which Oakley charged for his services,) but still retained possession of the slaves. That the whole proceedings were designed to defraud the creditors of respondent, were null and void, and the slaves, continued, in law, to be his property, notwithstanding such sales, &c. Transcripts of the judgments, executions, conveyances, &c., are exhibited.

That on the 8th December, 1826, in pursuance of said agreement, at the instance of Oakley, and to make the fraud more complete, and in order to quiet the feelings of respondent, when the same should come to his knowledge, Rickard Thurmond made the will, if he made it at all, exhibited with the bill.

That all the above transactions occurred while respondent was in Pennington’s settlement, on the Saline, without his knowledge. That the country between the place where he was, and Hemp-stead, was a wilderness, without mail communications, and in going from one place to the other, persons had to camp out. Respondent being- in very bad health, and having left Zachary to manage his affairs, &c., he supposed that all would be done to his satisfaction; but in the spring of 1828, learning that his father was dead, and that his plantation and slaves were in the hands of Oakley, many of his debts unpaid, and every thing badly managed, he returned to Hempstead, &c. Oakley refusing to give up the slaves, &c., respondent went to Louisiana, and got his friend, William Me D. Pettit, to come, and with him, assume the payment of all his debts, and they had to pay Oakley $2,000, in order to get the slaves, &c., out of his hands. That but for the interposition of'Pettit, all the negroes would have been sold to pay respondent’s debts, the whole community having become satisfied, that said sales, will &c., were fraudulent. That when respondent got possession of the slaves as aforesaid, he took them to Louisiana, and hired them out.

So, respondent alleges that the slaves in controversy, (being of the stock above referred to,) have always been in his legal possession, except when they were unlawfully held by Oakley, as aforesaid. Respondent always intending to pay his debts, never did recognize or give countenance to the fraudulent sales, &c., so caused by Oakley, &c., and knew nothing of the sales by the sheriff, until long after they had been made.

That while complainants were minors, they, by their next friend, Pennington, brought suit against Me D. Pettit, in the Chicot Circuit Court, for a portion of the slaves, supposed to have been bequeathed to them in said will, which suit abated by the death of Pennington.

Whereupon, said Me D. Pettit, in order to qniet the title to the portion of said slaves held by him, on the 12th of November, 1845, filed a bill in said Chicot Circuit Court, against all the complainants and defendants in this bill, and on the 12th of May, 1848, the court decreed, that the sales made by the sheriff of Hempstead county to Oakley, and the said will were fraudulent and void. A transcript of the suit is exhibited. That Zachary gave bis deposition in that case, and has since died, and respondent insists that his deposition, as well as the other depositions, decree, &c., shall be read in evidence in this case.

The canse was heard upon bill, answer, replication, exhibits, depositions, &c., &c., and the court being of the opinion, that the slaves mentioned in the bill, (or their ancestors,) belonged to the defendant, Thomas J. Thurmond, when, before and since Richard Tlmnnond made his will, dissolved the injunction, ordered the slaves to be restored to him, and dismissed the bill for want of equity, and complainants appealed.

So much of the evidence as is deemed material,-will be stated in connection with the points discussed, &c.

It is insisted by the counsel of Thomas J, Thurmond, that the decree rendered by the Chicot Circuit Court, quieting the title of Me D. Pettit, to a portion of the same stock of slave's now in controversy, is conclusive against the rights of the complainants in this suit.

Pettit’s bill, to which the parties to this suit are made defendants, makes, substantially, the same statements that are made in the answer of Thomas J. Thurmond to the bill now before us: and then proceeds to allege, that after Thomas J. Tnurmond got the slaves out of the hands of Oakley, and removed them to Louisiana, he and Pettit afterwards removed to Chicot county, in this State, where, in process of time, .Thomas J. Thurmond became much embarrassed; judgments were obtained against him, executions issued, levied upon the larger portion oí the slaves, which were sold, and Pettit, became the purchaser; and the bill prays that his title be quieted, &c. The court decreed that the slaves belonged to Thomas J. Thurmond-, under the deeds of gift from his father. That the sale of the slaves, under Hickman’s executions, the purchase of them by Oakley, and the transfer of them by him to Richard Thurmond and wife, were fraudulent and void, &c., and that Pettit’s title be quieted, &c. It is conceded that the slaves now in controversy in this suit, though of the same stock, are not the same slaves embraced in Pettit’s bill and decree. Thomas J. Thurmond, in his answer to Pettit’s bill, admitted the allegations therein made to be true. The answers of the other defendants, if they made any, do not appear in the transcript before us.

The decree in the Chicot Circuit Court, was not between the the same parties, of their privies, that are contesting here, nor were the same slaves the subject matter of litigation in that case, which are in controversy in this; and, therefore, it is well settled, that the decree in Pettit’s case, is not conclusive upon the rights of the complainants in this case. 1 Greenl. Ev., sec. 522 to 539; Harvey vs. Richards, 2 Gallison 216; Baring et al. vs. Fanning et al., 1 Paine's C. C. Rep. 549; Hibsham vs. Dulleban, 4 Watts 183; Duchess of Kingstons's case, 11 State Tr. 261, opinion by Chief Justice DeGrey; Preston vs. Harvey, 2 Hen. & Munf. 55; Chapman vs. Chapman, 1 Munf. 395; Bank of the State vs. Robinson et al., 13 Ark. Rep. 214; Johnson vs. Emmons, 2 Pennington 747; 4 Phil. Ev. (C. & H.) 165.

Upon a careful examination of all the competent testimony in the cause, which is voluminous, and somewhat in conflict, there can be but little doubt but that Richard Thurmond, about the year 1810, in the State of Georgia, divided his slaves between his two sons, Roland and Thomas J., giving to the latter, the stock from which those in controversy in this suit have descended, or are a part. Independent of the copies of the deeds of gift exhibited with the answer of Thomas J. Thurmond, ■which are not authenticated so as tobe regarded'as evidence, the repeated declarations of Richard Thurmond, that he had given the slaves to Thomas J. about the time above stated, and that they belonged to him, are proven by a number of witnesses. These declarations, made prior to the time when his son became embarrassed, and when it does not appear that he had any motive to misrepresent, are of more weight than acts and representations of his, after his son had become largely indebted, and his creditors were seeking to subject the slaves to the payment of his debts. Without, therefore, deeming it necessary to state the testimony of the several witnesses, we shall assume, as a starting point, that the slaves belonged to Thomas J. Thurmond, prior to the year 1820.

The complainants, for the purpose of proving that Bichard Thurmond acquired title to the slaves again, and was the owner of them, when he made his will, and at his death, after filing' affidavits, &c., that search had been made for the originals, and they could not be found, &c., read in evidence, transcripts from the records of the Recorder’s office of Hempstead county, of the following instruments, subject to objections, as to competency, &c.:

1. A bill of sale, purporting to have been executed by Thomas J. to Bichard Thurmond, on the 25th November, 1820, with the certificates attached.

2. A bill of sale, purporting to have been made by Thomas J. to Judith Thurmond, wife to Bichard, on the ITth January, 1825, •with the certificates attached.

3. Hickman’s judgments against Thomas J. Thurmond, the executions that issued thereon, and the returns, the deed from the sheriff to Oakley, and the bill of sale from him to" Bicliard Thurmond and wife, of the slaves purchased by him under the executions, as the property of Thomas J. Thurmond, with the certificates attached.

Other documents were introduced, having some relation to the subject, but the above are the leading instruments upon which complainants have to rely to show title in Bichard Thurmond, under whom they claim; and if they fail, their case falls.

No testimony was introduced upon the hearing, to prove the execution of the bills of sale purporting to have been made by Thomas J. Thurmond to Bichard and Judith Thurmond. No witness deposed that he ever saw the originals, or knew of their existence. The complainants relied entirely upon the certificates attached to the copies from the record read in evidence. If the copies of the bills of sale, with the certificates attached to them, were competent evidence, they become so by virtue of the act of 19th December, 1846, Digest, p. 943, and not otherwise. Tho provisions of the act are as follows:

Seo. 1. “Deeds and instruments of writing for the sale of slaves, or concerning anj' interest in slaves, may be acknowledged and recorded in the same manner, as conveyances of real estate, and shall have the like effect as evidence in all judicial tribunals in this State.”

Sec 2. “All deeds and instruments of writing relating to slaves as aforesaid, heretofore acknowledged and recorded, may be used as evidence, with like effect as conveyances of real estate, duly acknowledged and recorded.”

It does not appear from tho certificates attached thereto, that either of the bills of sale was ever acknowledged at all by Thomas J. Thurmond, before any officer whatever.

But let us suppose, without meaning to decide the point, that the Legislature intended to say, in the above act, that deeds acknowledged or proven, and recorded in the same manner as conveyances for real estate, shall have like effect, as evidence, &c.

Let us see how deeds for real estate are to be proven, in order to be admitted to record.

It is provided by the chapter on Gonvexaeces, contained in Steel & McCampbell's Digest of the Laws of the Territory of Arkansas, page 132,133, which was in force, when the attempt appears to have been made to prove the execution of the bills of sale in question, that deeds and conveyances of lands within the Territory, in order to be recorded, shall be proven by one or more of the subscribing witnesses to such deed, before a judge, &c., justice of the Peace, or Clerk, &c. It is further provided, that ■where the grantors and witnesses of any such deed are deceased, or cannot be had, it shall be lawful for such Judge, Justice, &e.., to take the examination of any witness, or witnesses, on oath or affirmation, to prove the handwriting of such deceased witness or witnesses: or where such proof cannot be had, then to prove the handwriting of the grantor or grantors, which shall be certified by the judge or justice before whom such proof shall bo made, and such deed or conveyance, being so proved, shall be recorded, &c.

Where the deed is proven by an attesting witness, no provision is made by this statute, as to the form in which the proof shall be taken or certified. Nor is any provision made for reading in evidence a deed proven and recorded under the provisions of the act, without further proof of execution. Nor for reading a certified copy from the record, when the original is lost, or not within the control of the party desiring to use the deed as evidence.

It is usual for the statute which authorizes the recording of deeds, to define their effect as evidence, and prescribe the limitations under which they shall be received, as does our present statute relating to registration, &c. See Digest, chap. 37 secs. 26, 27, 28. Where this is not done, as it is not in the territorial statute in question, if the deed is duly acknowledged by the grantor, or proven and recorded, a copy from the record may be read, if not as primary, at least as secondary evidence, on a showing that the original is lost, or not within the control of the party desiring to use it. 4 Cowen & Hill's notes, Phil. Ev. part 2, note 254, p. 460; Brooks vs. Maybury, 11 Wheat. 78; Dick et al. vs. Balch et al., 8 Peters Rep. 31; Ben et al. vs. Peete, 2 Rand. 539; 11 Ala. Rep. 239; 2 Ib. 144; 3 Stewart 271.

Wo will uow enquire, whether the bills of sale in question wore duly proven and admitted to record.

The bill of sale of 25th November, 1820, purports to be a conveyance from Thomas J. to .Richard Thurmond, of eight slaves, but naming twenty-eight, for the consideration of $5,000. It is attested by John M. Bradley and James Byrneside, as subscribing witnesses. To it is attached the folio-wing certificate:

“ Hempstead CoüNtt, 1

Township of Rum. j

This bill of sale, proven and acknowledged by John M. Brad-lev, before mo, on the 16th day of March, 1826.

SILAS RAWLS,

A Justice of the Peace.”

Also the certificate of J. B. G-orden, Deputy Clerk (not disclosing tlie name of his principal,) of the Circuit Court, and Ex offieio Recorder of Hempstead county, that the instrument was, on the 1st of October, 1826, produced in his office and recorded, &c.

The transcript from the record is authenticated, by the present Clerk, in proper form.

As before remarked, the territorial statute in question does not prescribe the form in which the justice shall certify the probate of a deed when proven before him by one of the subscribing witnesses, as does our present statute. (See Digest, chap. 87, sec. 19.)

Under a similar statute of Connecticut, it was held that an acknowledgment, &o., should be in writing. That it could not be proven by parol, but must be certified by the officer taking it. Staunton vs. Button, 2 Conn. Rep. 537; Hayden vs. Wiscott, 11 Ib. 129; Pendleton vs. Butt, 3 Ib. 406; 4 Cowen & Hill's notes, Phil. Ev. part 2, p. 461, note 254.

It does not appear from the certificate in this case, that the witness was sworn, nor does it appear what he stated about the execution of the bill of sale. But it is stated in general terms, that the bill of sale was proven, &c.

In Ross vs. McLung, 6 Peter's Rep. 283, the sufficiency of a similar certificate, made under a like statute of North Carolina, was adjudicated upon, and it was held insufficient. In that case, the certificate was in these words: “December Session, 1783. This deed was proven in open court, and ordered to be recorded.”

In this case, Chief Justice Mabshall said, the Clerk had certified to a legal conclusion, in stating that the deed was proven, instead of stating the fact, to which the witness testified.

Upon the authority of this case, and cases there cited, we think it but reasonable that it should appear from the certificate, that the witness was sworn, and that he stated that the party, whose name appears to the deed, signed its or executed it, or acknowledged that be had done so, or some such language, amounting to proof of the' execution of the deed. The case of Ross vs. McLung, was a stronger one than this, for there, the deed was proven before a court of record; and here, it was done before a justice of the peace, acting in a ministerial capacity, and doing an ex parte act in pais. In such case, a substantial compliance with what the law requires to be done, ought, we think, affirmatively to appear from the certificate.

While great strictness, in such matters, is not to be required on the one hand, if too much latitude and informality were indulged on the other, it might open a door for fraud, and the admission, to record and in evidence, of deeds never really executed by persons whose names appear to them.

The bill of sale from Thomas J., to his mother Judith Thurmond, purporting to convey to her, for the consideration, of §5,000, a portion of the same slaves named in the bill of sale to Richard Thurmond, judging from the similarity of the names, bears date on the 17th day of January, 1825, and is attested by Bukeill Zachary and John Cocks, as subscribing witnesses. To it is attached the following certificate:

“ TERRITORY OR ARKANSAS, 1

Hempstead County. j

Bartlett Zachary, being duly sworn, upon his oath, deposeth and sayetli, that he seen Thomas J. Thurmond sign the within and foregoing bill of sale, and heard him acknowledge it to be his hand and seal, act and deed, for the purposes and uses therein mentioned.

BARTLETT ZACHARY.

Sworn to and subscribed before me, this 30th day of June, 1825.

ALLEN Ivl. OAKLEY,

Justice of the PeaceP

Also, a certificate of registration of the same date; and an authentication of the transcript by the present clerk, &c.

The above certificate of probate is clearly bad; because the proof was made bjr a person, other than one of the subscribing' witnesses, and there is no showing that they were dead, or could not be had, as expressly required by the statute. See Gillett vs. Stanley, 1 Hill N. Y. 121; Jackson ex dem. Kellogg vs. Vickary, 1 Wend. 406; Jackson ex dem. Wood vs. Harrow, 11 John. 143; Wilson vs. Ryston 2 Ark. Rep. 315.

It is a -general rule, that a record not made in accordance with the law relating to the recording of instruments, is incompetent evidence to prove the original; and so, a fortiori as to a copy thereof; for, in such cases, the record amounts to no more than a mere unofficial entry of the officer. 4 Cowen & Hill’s notes, Phil. Ev. part 2, p. 458; Kerns vs. Swoope, 2 Watts 75; Pidge vs. Tylor, 4 Mass. 541; Morgan vs. Bealle, 1 Marsh. 310; Womack vs, Wilson, Litt. Sel. Ca. 292; 1 Taylor’s Rep. 25; Miller’s Lessee vs. Holt, 1 Tenn. Rep. 111; 7 Harr. & John. 124; Turner vs. Stip, 1 Wash. 319; 3 Harr. & McH. 390; Mitchell vs. Mitchell. 3 Stew. & Port. 81, 83; Maxwell vs. Light, 1 Call 117.

The probate of the bills of sale in question being defective, and they not having been acknowledged by the grantor, (Rowletts vs. Daniel, 4 Munf. 473; Ben et al. vs. Peete, 2 Rand. 539.) and the complainants having introduced no proof of the execution of the originals, or that the copies introduced had been compared with the originals, (4 Cowen & Hill’s notes, Phil. Ev. part 2, p. 459,) the copies cannot be regarded as competent evidence, thongli the complainants proved that search had been made for the originals, and they could not be found, &c.

It is insisted by the counsel for the complainants, that the bills •of sale were admissible as evidence, in consequence of their antiquity, &c.

"Where instruments are more than thirty years old, and are ¡unblemished by any alterations, they are said to prove themselves: tbe bare production thereof is sufficient; the subscribing witnesses being presumed to be dead, &c. But it must appear that the instrument comes from such custody, as to afford a reasonable presumption in favor of its genuineness, and that it is otherwise free from just grounds of suspicion, &c. 1 Greenl. Ev., sec. 21, 112, 570.

But one of the bills of sale, that from Thomas J. to Eichard Thurmond,' of 25th November, 1820, was thirty years old when it was produced as evidence; and moreover, the above rule is understood to apply to the production of the original deeds, and not to copies.

In some instances, where the original deed is lost, and the subscribing witnesses dead, &c., as they perhaps were in this case, after the lapse of many years, an exemplification of an unauthorized record, has been admitted as a link in a chain of corroborating circumstances, tending to prove the execution of the original. See the cases cited in 4 Cowen & Hill’s notes, Phil. Ev., part 2, p. 459.

But in the case before us, the corroborating circumstances are wanting, and the surrounding circumstances tend rather to overturn than to sustain the execution and validity of the originals. It appears from the deposition of F. 0. Berry, that Thomas J. Thurmond was under the age of twenty-one years, when the bill of sale of 25th November, 1820, purports to have been made. The bill of sale to Judith Thurmond, purporting to have been made in the year 1825, is for a portion of the same slaves embraced in the former bill of sale. The evidence conduces to show, that after the date of both bills of sale, Thomas J. Thurmond placed the slaves in charge of Bartlett Zachary, to manage for him and pa3r his debts, and wont to Bennington’s settlement upon the Saline; and in his absence, Eichard Thurmond and Oakley caused the slaves to be sold as the property of Thomas J. Thurmond, under executions; Oakley purchased them, and transferred them to Eichard Thurmond and his wife. That when Thomas J. Thurmond returned, he arranged liis debts, by tlio assistance of Pettit, obtained possession of the slaves, and took them to Louisiana, and from thenceforward held possession of them, except such as he disposed of, or were sold for his debts.

Under all the circumstances in proof, we think that the copies of the bills of sale relied upon by the complainants, cannot be regarded as evidence.

The remaining evidence of title in Richard Thurmond, relied upon by complainants, is the transfer to him and wife, by Oakley, under his purchase at the sheriff’s sale.

The testimony proves, beyond a reasonable doubt, that after Thomas J. Thurmond left home, and went to Pennington’s settlement, leaving the slaves in the charge of Zachary, being much in debt, and his creditor’s pressing their claims, Richard Thurmond and wife claimed the slaves, took them out of the possession of Zachary, leased them to Poston and Oakley; and after-wards, by an arrangement between Oakley and Richard Thurmond and wife, for the purpose of putting the slaves out of the reach of the creditors oí Thomas J. Thurmond, the slaves were levied upon by the sheriff, under executions issued upon judgments of Hickman, which had been paid by Oakley, the slaves were all sold for nominal sums, in a private manner, purchased by Oakley, and then transferred to Richard Thurmond and wife. That after this, Oakley retained possession of them under the lease, until Thomas J. Thurmond returned, and by the aid of Pettit, arranged his debts with the creditors, obtained possession of the slaves from Oakley, after the death of Richard Thurmond, and took them to Louisiana, as above stated. The sheriff’s sale, &c., occurred in the absence of Thomas J. Thurmond, and the evidence fails to show that he sanctioned the sale, or was a party to the arrangement to defraud his creditors. Under these circumstances, the title thus obtained by Richard Thurmond in fraud of the rights of the creditors of Thomas J. Thurmond, would be invalid, not only as to him, but as to the complainants, who claim under his will. Digest, chap. 73. These proceedings were not only a fraud upon the creditors of Thomas J. Thurmond, but upon him, and were void for that reason also. It is needless to cite adjudications to sustain propositions like these, based upon familiar principles of the law, to be found in all the books treating of the subject of fraud.

The complainants proved some declarations of Thomas J. Thurmond, made about the year 1837, to the effect, that the slaves belonged to his children; but these declarations were made at a time, it seems, when he was embarrassed, and perhaps, when executions were out against him. Such declarations do not amount to an estoppel, as held in Prater adm. vs. Frazier & wife, 6 Eng. Rep. 249.

Upon the whole record, we think the complainants have failed to show title to the slaves in Richard Thurmond, under whose will they claim, as alleged by the bill, and denied by the answer.

There are other questions discussed by the counsel in the cause, but they are of no great magnitude, and the view we have taken of the ease, renders it unnecessary to decide them.

The decree of the court below is affirmed.


author: Mr. Justice Soott

text:
    Crabtree et al. vs. McDaniel.
    A continuous, peaceable, adverse possession of slaves for the period of five years, vests title in tbe possessor. Pryor & wife vs. Syburn, (at the present term.)

      Appeal from Lafayette Circuit Court in Chancery.

    Hon. Siielton Watson, Circuit Judge.
    Fowler, for appellants.
    Wateins & G-allagiiisr and Hempstead, for tbe appellee.
   Mr. Justice Soott

delivered the ©•pinion of tbe Court.

• Crabtree and wife, and Mary Nelson Penn, Sarah Ann Cook, Priscilla Cook and Zachariab Cook, minors, by Crabtree their next friend, in behalf of themselves, and all other heirs of Nancy McGhirt, alias Nancy McDaniel, exhibited their bill in the La-fayettee Circuit Court, on the 25th day of January, 1853, against James McDaniel; and afterwards filed an amendment thereto, alleging altogether, substantially, as follows, to wit: That one Sarah McGhirt, otherwise called Sarah Ann McDaniel, had lately died intestate, in that county, leaving the said Nancy McGhirt her only child and heir surviving; that before, and at the death of Sarah, she owned in her own separate right, certain slaves who are described,- the exclusive right to which vested in Nancy, as sole heir. That Nancy died afterwards, in that county, in infancy, intestate and without issue. That the father and mother of Sarah died in her lifetime. That thé next of kin of Nancy are the sisters of her mother and their descendants, to wit: Priscilla, wife of Crabtree,. Eliza, who married James, Elizabeth, who-married Jolly, and the minor complainants who are children of Hannah, another sister of Sarah, who first married Penn, after his death married Cook, and afterwards departed this life, leaving her surviving the four minor complainants, her only heirs and distributees. That James and Jolly and their wives had removed from the Creek Indian Nation, where they had long resided, to parts unknown, nor was it known to complainants, whether any of them were dead or alive. That Sarah, and all her sisters, were women of, and belonging to the Creek Nation of Indians. That by the customs, laws and usages of that tribe, a man who did not belong to that Nation, could not lawfully marry a woman of that Nation, without first obtaining a license from the Chief of the Town or Council of the Nation. That the defendant McDaniel, isa white man, and nota Creek Indian, and never obtained any such license to marry the said Sarah Ann. That by said laws of the Creeks, a feme covert of that tribe, holds the sole and exclusive right of property in slaves, whether acquired by gift, descent, purchase or distribution, before or after coverture, to her sole and separate use, and the husband acquires, by marriage, no estate wlratever, in his wife’s property, owned by her at the time of the marriage, or afterwards acquired by her; and on her death all such property descends to her children, and in default thereof to the next of kin of her own blood. That there had been no administration on the estate either of the said Sarah Ann, or of her daughter Nancy. That the slaves in controversy had come into the possession of the defendant McDaniel, who holds them without authority of law and as a trustee for the complainants, and the other heirs and legal representatives of the said Nancy, who are the rightful owners, and entitled to the possession of them. That the defendant intendsremoving them to parts unknown, beyond the limits of the State of Arkansas, pretending title thereto. And praying for answer, injunction, receiver, process of seizure and account of the hire, and for partition, distribution, and for general relief. The bill was verified by Crabtree’s affidavit, and upon bond and security given, process of injunction and of seizure was awarded, and the slaves taken and hired out.

McDaniel answered, admitting that Sarah Ann, her father and mother, and her daughter Nancy, had died as alleged; that Nancy was the only child of Sarah Ann; the relationship of complainants, Priscilla and the minors, and James and Jolly’s wives, as alleged ; that there had been no administration of the estates of either Sarah Ann or Nancy, and that he was about to remove to Texas, and carry the slaves in question with him ; but denying that Sarah Ann had any sole or separate estate at the time of her death, or that Nancy ever had any whatsoever, denying the mode of marriage alleged, and that Crabtree was ever married to Priscilla, but admitting she is now living with him as his wife; denying that Nancy was ever known by the name of Nancy McG-hirt, or by any other than Nancy McDaniel, and also that the slaves in controversy, were ever wrongfully withheld by him from complainants, or any one else, or ever were held by him as trustee And averring the truth to be, that two of the slaves in controversy, from which the others have issued since the former came lawfully in the defendant’s possession, were originally owned by one Zachariah McGhirt, a resident of the Creek Nation of Indians, whoso wife was a woman of that tribe. That the said Zachariah and his said wife, were the father and mother of the said Sarah Ann, and of her before mentioned sisters. That these Indians have no written code of laws for their government, but that their local and domestic affairs were entirely governed by their established usages and customs. That by one of these, whenever a person, who was not held as a slave in said nation, desired to contract a marriage with a woman belonging to said tribe, all that was necessary to consummate such marriage was for the parties to live together as man and wife, in an open and public manner ; and that he, the defendant, lived with the aforesaid Sarah Ann, and co-habited with her, as his wife, from about the year 1838 until the year 1846 or 1847, when she died. That he had several children by her, none of whom survived her, except the aforesaid Nancy. That after his marriage as aforesaid, his wife’s father died in the Creek Nation, leaving considerable property. That by other usages and customs of said tribe of Indians, after asufficiency of the property of the deceased was applied to the payment of his debts, the residue was divided equally among his children. That in accordance thereto, two of the slaves of the said Za'chariáh were sold fop the payment of his debts and the proceeds proving to be sufficient for that purpose, the residue was equally divided among his children and their representatives. That by that division the defendant, in right of his wife Sarah Ann aforesaid, received for his share the aforesaid two slaves, which, together with their issue since, are now in controversy. That by the customs and usages of said Creek Nation of Indians, the husband of any Creek woman could take, have and use, as his absolute property, whatever might descend or be distributed to her after coverture, and that in pursuance thereof the defendant, as the husband of the said Sarah Ann, reduced said slaves to his own possession, whereby they became his absolute property and that from that time he has held quiet, peaceable and absolute possession of them and of their increase, as his own exclusive property, until taken from him by the order of the Chancellor under the prayer of this bill. And insists that under said customs and usages, they have been ever since the aforesaid division, and are still, his absolute property. And again averring that he legally and properly acquired the possession and control of said slaves, under the customs and usages of the aforesaid tribe of Indians, and that he so held the same afterwards, as long as he continued to reside in said Indian country, and >removing them therefrom to the lítate of Arkansas as his absolute property, he has ever since continued so to hold them, he insists that, from his original' lawful title and “long continued, peaceable and quiet possession, he is entitled to hold said slaves, as his absolute property, free from any pretended claim or demand of said claimants, or any one else, as the supposed heirs of the said Nancy.” And alleging a want of equity in the bill, prays full benefit at the hearing, as if a demurrer had been interposed.

Hie answer was sworn to, and issue taken ; and the cause having been previously set clown for final hearing, was heard at the May term, 1854, of the Lafayette. Circuit Court, upon the bill, answer, and replication and a mass of evidence by deposition, when the court found the slaves in controversy to be the absolute property of the defendant McDaniel, and that the' complainants were entitled to no relief, dismissed their bill, with costs, and vacating the injunction and all other restaiuing orders previously made, decreed also, that the defendant should recover against the complainants all such damages as ho had sustained by reason of the injunction and restraining orders aforesaid ; but because the amount of damage was unknown, and there was not sufficient time to ascertain it, at that term of the court, by the inquiry of a jury, ordered a writ of enquiry therefor, returnable unto the next term in course; from which decree the complainant appealed to this court.

The larger portion of the testimony in the record, relates to the usages, customs and laws of the Creek Indians, set up in the pleadings. It is conflicting to a degree beyond reconciliation, and it would be, therefore, only by discarding some of it altogether, that any conclusion could be arrived at on the points contested’ But, however these points might be found, they would not be decisive of the case, because it must unavoidably go for the defendant below, upon the ground of his long continued, peaceable, quiet and adverse possession. It will, therefore, be necessary only to set out the substance of the testimony relating to this ground of the defence.

It appears that Zachariah McGhirt departed this life in the Creek Nation sometime in the year 1840 or 1841, and his wife, also, died about the same time. That soon afterwards, there was a distribution of the property left by them, among their children and their representatives. That by means of this distribution, the negroes in controversy came to the possession of McDaniel, his alleged wife Sarah Ann being one of the distributees. Sarah Ann died, leaving her surviving one child named Nancy McDaniel, who died in the month of March, 1846. In the year 1842, McDaniel settled in Lafayette county, Arkansas, where be lias ever since resided, and where Sarah Ann and her daughters departed this life. When he came there, lie brought with him the aforesaid Sarah Ann and her daughter, and also the slaves in controversy, and held the latter from thenceforward, in his continuous peaceable possession, as his own property up to the time when, on tlie 26th of January, 1853, they were taken from his possession by the sheriff of Lafayette county, by virtue of process of seizure, ordered by the Circuit Judge in vacation.

There is no evidence that there ever was any adverse claim to the slaves in controversy, on the part of the complainants or any one else, against McDaniel, until the filing of the bill in tins case, which was the 25th of January, 1853, a period of more than five years after the death of the girl Nancy McDaniel, under whom the complainants set up title — Crabtree and his wife, living all the time in the neighborhood of McDaniel — of about twelve years from the time the negroes went into the possession of McDaniel, upon the distribution of the estate of McGhirt and wife, and of upwards of six years and one month after the approval of the statute of limi tation and title in relation to slaves, expounded in the case of Pryor et al. vs. Ryburn et al., decided at the present term.

Upon this ground then, the decree of the Circuit Court of Lafayette county, must be affirmed.