Opinion
(December Term, 1841.)
1. If a bond, note or given to the wife, or to the husband and wife, during coverture, the legal title vests in the husband, on his assent, and he may sue alone or join his wife.
2. So if a slave be conveyed to a wife during coverture, the legal title vests in the husband, if he assents to the conveyance, and possession of the slave for a length of time is evidence of such assent.
3. Where an injunction has been granted, and the defendant puts in an answer which is apparently deficient in frankness, candor or precision, or is illusory, the injunction will be continued till the hearing.
APPEAL from an interlocutory decree of the Court of Equity of ANSON, his Honor, Pearson, J., presiding.
The complainant, Alexander Little, filed his bill against Solomon Marsh at Spring Term, 1841, of Anson Court of Equity. In this bill the complainant alleged that, at March Term, 1838, of Anson Superior Court of law, a number of judgments were obtained against one William Ashcraft, of the county of Anson, at the several suits of Richard Kingsland Co. and others (particularly mentioning them), amounting to upwards of eight thousand dollars; that executions issued on the said judgments returnable to September Term, 1838, of the said Superior Court, and that the Sheriff of Anson County levied the said executions on the following negro slaves, as the property of the said James Ashcraft, viz., Clarissa and her five children, Sanford, Matilda, George, Ann and Harriet; and that the said sheriff did, on 12 September, 1838, sell said negroes at the courthouse door in the town of Wadesboro to satisfy said several judgments, and that the complainant became the last and highest bidder for the sum of $1,455. The complainant further charged that the (19) defendant in the said executions, viz., the said James Ashcraft, married the daughter of the defendant, Solomon Marsh, several years ago, and that upon the marriage of the said James Ashcraft with the daughter of this defendant, or in a short time thereafter, the defendant gave the said woman Clarissa, who was at the time a small girl, and who is the mother of the said Sanford, Matilda, George, Ann and Harriet that were sold by the sheriff as aforesaid, to the said James Ashcraft or his wife, and executed and delivered a deed of gift or bill of sale, or some other instrument of writing whereby the defendant, Solomon Marsh, conveyed all his interest and title in said negro girl Clarissa unto the said James Ashcraft or his wife; and that said negro girl Clarissa remained in the possession of the said James Ashcraft for fifteen or twenty years, during which time she had the five children before mentioned; and that the said James Ashcraft continued in the possession of the said negro slaves, exercising all acts of ownership over them, paying taxes for them and receiving credit in part on account of his interest and property in said slaves, until the said James Ashcraft became embarrassed in his circumstances, and until a short time before the levy and sale were made by the sheriff as aforesaid, when the said James Ashcraft and the defendant, combining and confederating together how to injure and defraud the creditors of the said James Ashcraft, came to an understanding and agreement of some kind whereby the said James Ashcraft surrendered up the possession of the said negroes to the defendant, Solomon Marsh, and at the same time surrendered up and delivered over to the said Solomon Marsh the deed of gift or bill of sale for the said Clarissa, the mother of the said children, which bill of sale or deed of gift, the complainant charged, had never been recorded. The complainant further set forth that the said James Ashcraft resided in the immediate neighborhood of the defendant ever since the marriage of the said James with his daughter, and that it was generally understood and believed in the neighborhood that the said slave Clarissa and her said children were the property of the said James Ashcraft; and that the said Solomon Marsh never pretended to claim (20) the said negro slaves from the time he gave them to the said Ashcraft until about the time the said executions were levied by the sheriff as aforesaid on said slaves, and that so far from claiming the said slaves as his (the defendant's) own property, the complainant was informed and believed that the defendant did, on some occasion when inquiry was made of him as to the title to said slaves, say that he expected the title to them was in one Joseph White, inasmuch as said White was security for the said Ashcraft, and he expected that he said White had taken a deed of trust for said negroes to save him harmless, or words to that effect. The complainant further charged that after the levy made by the sheriff and before the day of sale, the complainant, upon learning that the defendant pretended to claim the said slaves, proposed to the defendant that if he, the defendant, would show to the complainant the deed of gift or bill of sale which the defendant had executed to the said James Ashcraft or his wife for said slaves, then, in case the writing did not convey the title to the said Ashcraft, or any title liable to execution for debts of said Ashcraft, the complainant would release the levy, so far as he was concerned, in the executions against said Ashcraft; but that the defendant refused to do so or to give the complainant any satisfaction in any manner as to the same. The complainant further set forth that he, together with Robert Strange and Thomas S. Ashe, Esquires, were counsel and attorneys for the plaintiffs in the executions against Ashcraft, and that they jointly gave the sheriff a bond of indemnity to sell the said slaves, and that the sheriff did sell the said slaves and that the plaintiff became the purchaser for the sum of $1,455, and took and now has the said slaves in his possession. The complainant further set forth that the defendant was present at the sale, and forbade the same; but the complainant was informed, and was informed so on the day of sale, that the defendant had procured one Jesse Llewellen, a man of property and a friend and neighbor of the defendant (who is now dead), to bid off the said slaves for him, the said Solomon Marsh, (21) and that in consequence thereof the said Llewellen did bid several times for the said negroes, or some of them. The complainant further set forth that the said Solomon Marsh had since sued the complainant at law in an action of trespass vi et armis, claiming said slaves as his own and seeking to recover damages of the complainant for wrongfully selling the same. The complainant further charged that although the defendant, Solomon Marsh, did actually make, sign, seal and deliver a deed of gift or bill of sale for said girl Clarissa to the said James Ashcraft or to his wife, yet that the said deed of gift or bill of sale never was recorded, as required by law, and that the complainant was unable to avail himself of the benefit of his defense in a court of law for want of the said recording of the said deed of gift or bill of sale. The complainant then, after asking that the defendant might be required to answer on oath particularly and specifically all the matters charged in this bill, prayed that the said defendant might be compelled by a decree of the court to have the deed of conveyance made by the defendant to the said Ashcraft surrendered up to be recorded, or that he might be compelled to convey all his title and interest in said negro slaves to the complainant, and that he should be perpetually enjoined from his action at law against the complainant; and that the complainant should receive such other and further relief as to the court should seem meet.
This bill of complaint was sworn to in due form. At the same term the defendant put in his answer. In this answer he admitted that he had understood there were several judgments obtained against James Ashcraft about the time charged in the bill, but the amount thereof, or by whom, the defendant did not know, nor did he recollect at what particular term of Anson court; and he supposed, but did not know, that executions issued on the said judgments. He also admitted that James Ashcraft several years ago married his daughter Eunice, and resides within a few miles of the defendant, in Anson. The defendant, for further answer, stated that after the said James Ashcraft was married and, he thought, after he had two children, and his wife was in much need of a nurse, the defendant, being the owner of a negro girl named Clarissa, then some ten or (22) twelve years old, placed the said girl with the defendant's said daughter to assist her in taking care of her children, and intending for his said daughter to have the services of the said Clarissa to her separate use, and for the said slave and her increase to be enjoyed by the children of the said Eunice; and to carry out this intention, some time thereafter — the defendant could not now state how long — he executed a paper writing to that effect, which he handed to his said daughter, therein conveying and securing the said slave Clarissa to the separate use of his said daughter (he thought) for life, and after her death, to her children equally. This paper writing was never delivered to James Ashcraft at all, nor in his possession, as this defendant believed, and he knew it was not intended that said Ashcraft should take any benefit under it; and defendant handed this paper writing to his daughter Eunice, he though about twelve or thirteen years ago; the defendant could not recollect the precise time, but he believed said paper was signed and handed to her about that time; and she retained the possession of it until about January or February, 1837, according to the best of the defendant's recollection, at which time the said Eunice handed back the said paper writing to the defendant, upon application; and the cause of the defendant's so applying to his daughter for it was that it was understood among the said slaves, to wit, Clarissa and her children, that the said Ashcraft was going to convey off to Mississippi all his own negroes, and he then had five valuable ones; and it was believed that in doing so he would also run off privately with them, Clarissa and her children, and thereby Eunice and her children would be defeated of their claim to the property altogether; and to prevent this the defendant took back said paper writing, which (as he thought) was destroyed. He averred that he had it not in his possession and was not able to produce it, which he certainly would readily do, had he the said paper to produce; for it was no intention whatever of defeating any of Ashcraft's creditors which caused the defendant to take back the said paper writing; for the slave, Clarissa, and her children, were never liable, directly nor indirectly, (23) for Ashcraft's debts, by the said paper writing which the defendant delivered to his daughter, as aforesaid. And the defendant further averred that at the time he took back from his daughter the said paper writing the said Ashcraft had five or more valuable negroes of his own, a considerable store of goods and much other valuable property and, the defendant believed, more than sufficient to have paid all his debts, if the same had been prudently managed. The defendant further stated that some time thereafter Clarissa and her children, under apprehension of being sent off to the South with Ashcraft's own slaves, as the defendant understood and believed, ran away of their own accord and came to the defendant's house, where they remained till seized by the Sheriff of Anson County and taken off and sold, as charged in the bill. And the defendant further stated that the said Ashcraft did send off his own slaves to the South, and they have never returned, as the defendant understood and believed. The defendant, further answering, stated that Ashcraft, when he married the defendant's daughter, had but very little property, if any, besides a horse, and, aided by his father, he procured a tract of land; and the defendant had but very few slaves, indeed, and was altogether unwilling to make title to a slave to him and opposed to putting one in his power or under his absolute control, though the defendant was willing and desirous to assist his daughter in taking care of and nursing her children, and his whole object was to secure the services of the slave Clarissa to the separate use of his daughter and for the said slave and increase to go to his daughter's children; and the said paper writing which he signed and handed to his daughter, as aforesaid, was to that effect, and so expressed upon the face of it, to the best of the defendant's recollection and belief; and the said slave Clarissa was not to be subject to the debts, disposition, or control of the said Ashcraft. The defendant, further answering, admitted that the slave Clarissa was permitted to remain at the house of the said Ashcraft from the time she first went there, as aforesaid, until she ran away, as before stated, with her children and came to the defendant, and during the time she remained at Ashcraft's said Clarissa had four of the children stated in the bill; and defendant (24) said he thought it likely said Ashcraft might have paid taxes for the said Clarissa, but he did not know, and thought it most probable that said Ashcraft exercised some control over Clarissa and her children while at his house, for such was to be expected; but the defendant did not admit that said Ashcraft ever obtained any credit on account of having said slaves at his house, for no person ever could have relied with any certainty or had any assurance that said Ashcraft had any title or held any interest in said slave Clarissa and her children, for he never had any title or interest in or to said Clarissa and children. And the defendant denied that there ever was any combination or understanding between said Ashcraft and himself in regard to taking said Clarissa and her children back, as charged in the bill; and so far from it, the defendant stated that a misunderstanding and unfriendly feeling existed between the said Ashcraft and himself from the time he first set up merchandise in Anson until the present time, and the said Ashcraft had never been at the defendant's house on a visit since; and although he kept store for some years, the want of friendship was such that the defendant never traded nor bought goods at his store. And the defendant denied that the said slaves, Clarissa and children, and the said paper writing were surrendered up to him by said Ashcraft, as charged in the bill, but alleged, on the contrary, that the said slaves left Ashcraft's house in the nighttime, and Ashcraft was much displeased thereat, and came to the defendant's and said that he (Ashcraft) knew nothing of it, as the defendant had heard and believed; and the said paper writing was handed back by the said Eunice, as before stated, without the knowledge of the said Ashcraft, and the defendant admitted that the said paper writing was not recorded before it was destroyed, as aforesaid. The defendant denied that he ever informed any person, to his knowledge or belief, that the title to said Clarissa and children was in Joseph White, or any other person, nor does he recollect that he ever mentioned to any person that the title to the said slaves was in his daughter, or any other person, to the best of his recollection and belief, or say anything upon the subject or that the subject was (25) ever talked about. The defendant admitted that the complainant applied to know about or to see the title to Clarissa and children the day of the sale, and the defendant assured him that said Ashcraft never had a title of any kind to said slaves, and that his daughter had none then; he also admitted that Clarissa and her children were sold by the Sheriff of Anson, at Wadesboro, some seventeen miles from the defendant's residence, and were purchased by the complainant at $1,455, or thereabouts, as charged. The defendant also admitted that he was present at the sale of the said slaves, and forbade the sale thereof, as he believed he had the right to do; but he denied most expressly that he employed Jesse Llewellen, or any other person directly or indirectly, to bid for said slaves for him or any other person. The defendant admitted that he had since sued the complainant for the said slaves, Clarissa and children, and that suit was now pending in Anson Superior Court of law. The defendant, further answering, averred that he fully believed that the whole cause of the said negroes coming into his possession was to avoid being sent off, and that was his entire object in taking up the paper writing before alluded to from his daughter, and not on account of any embarrassment under which the said Ashcraft was then laboring or with which he was threatened; for the defendant, in fact, knew but little about his circumstances, but knew he had much property, and fully believed him good for all his debts, and still believed he was; but the defendant's entire object was to prevent the said slaves from being sent off from the State and his daughter and children being deprived of their just rights, for the defendant never expected that said Clarissa and children would be made or attempted to be made liable for Ashcraft's debts. He further stated that four of Clarissa's children were born, as he believed, while she was at Ashcraft's house, and one named Harriet was born at the defendant's house after her return to him.
This answer was duly sworn to.
At this term a motion was made for an injunction to stay proceedings in the suit at law, which was refused by the court.
At Fall Term, 1841, the following interlocutory decree (26) was made: "On motion and argument, and it appearing to the court that since the last term a judgment has been obtained at law, in an action of trespass, by the defendant against the plaintiff for the sum of ......, and upon consideration of the bill and answer it is ordered, adjudged and decreed that the defendant be enjoined from taking out any execution upon his judgment at law until the further order of this court." From this interlocutory decree the defendant prayed an appeal, which was allowed upon condition that the defendant should not in the meantime take out any execution upon his judgment at law, but await the decision of the question in the Supreme Court.
Winston Mendenhall for defendant.
Strange for plaintiff.
If the paper writing in this case was witnessed (27) — which the answer does not deny — it passed the title of the slave from the donor, by force of Laws 1806 (Rev. Stat., ch. 37, sec. 17), except that the ceremony of registration was required to give it full effect; and this title inured to the husband, at least for life (as remainders in slaves created by deed or writing after a life estate are good. Rev. Stat., ch. 37, sec. 22), unless the husband dissented therefrom; and his possession for twelve years is evidence that he did assent. 1 Prest. Touch., 142. If a bond, note or bill be given to the wife, or to the husband and wife, during coverture, the legal title vests in the husband on his assent, and he may sue alone, or he may elect to join his wife. 2 Leigh N. P., 1109, and the authorities there cited. The husband, being entitled to the instrument, could have had it proved and registered, under the Acts of Assembly giving further time for registering deeds, writings, etc., and then the husband's inchoate title would have been complete, at least for his life. The wife had no power to redeliver the paper writing to the donor. But it is said if the facts were so, Ashcraft would still have been but a trustee for the separate use of his wife and children, and the slaves would not have been liable to be taken in execution for his debts. If there was no doubt left upon the mind of the court that the paper writing contained that which the defendant in his answer says it contained, and contained that so expressed as to deprive the husband of any beneficial interest in the slave conveyed, we should certainly hold that the plaintiff was not entitled to the interference of a court of equity in his behalf. But the question in this case is whether Ashcraft took as a trustee or in his own right, and the answer of the defendant appears to us to be illusory and to want frankness, candor and precision. The defendant (28) admits that he took back the paper in 1837. If it were such as he states it, it might operate materially against the plaintiff or the creditors of Ashcraft. There was a strong inducement, therefore, for him to preserve the paper, if it was written as he would have us to suppose. But although he speaks with some degree of positiveness as to his intent in executing the instrument, he is vague and uncertain as to the language of the instrument which declares that intent. He describes it as having been made "to that effect," and "he thinks" it was to her separate use for life, and afterwards to her children. His answer is equally unsatisfactory as to the destruction of the instrument. His words are, "he thinks it is destroyed," "he has it not in his possession," etc. Spoliation is always looked upon by a court of justice with suspicion. The defendant, to be sure, was not interrogated by the bill (as he yet may be) whether there was a subscribing witness, and who he was, nor in whose hands the defendant placed the paper after he got it back in 1837. He, however, is particularly cautious in not giving us any information on these points. Under all the circumstances we think the judge was right in directing an injunction until the hearing.
This opinion must be certified to the Court of Equity of Anson County, with instructions to proceed according to the same; and judgment must be entered for the plaintiff for the costs of this court.
Ordered and decreed accordingly.
PER CURIAM.
Cited: Miller v. Washburn, 38 N.C. 165; Deven v. Eller, 42 N.C. 29; Mosteller v. Bost, ib., 42.
(29)