Leach v. West , 16 Ala. 250 ( 1849 )

CHILTON, J.

This bill was filed by the defendants in error against the plaintiffs, to recover certain negro slaves and to have an account for their hire, as also to discover the title deed under which they held said slaves, and to have a partition of the property between the complainants below and two infant defendants, who are incompetent to consent to a division.

There seems to have been no controversy in the court below as to the right of the complainants to recover the slaves, except as to the slave Carey, which the bill charges was substituted by an agreement between Jonathan and James B. Brantly in lieu of Watt, one of the slaves conveyed by the deed; but which allegation is denied in the answer of Mrs. Leach. The answer also denied that Mrs. Leach was liable to pay hire for the slaves. The chancellor decided against the plaintiffs in error upon botli grounds.

The assignment of errors presents two questions for our consideration : 1st. Whether the chancellor properly charged the plaintiffs in error with hire for the slaves, while they were in Mrs. Leach’s possession. 2d. Whether any decree should have been rendered against them for the boy Carey.

1. Many witnesses were examined as to the value of the slaves, and the willingness of the plaintiffs in error to surrender them. Without setting out the proof, which we have carefully examined, it is sufficient to observe that it very clearly shows, the plaintiffs in error set up no claim to the slaves sued for, except the boy Carey: That Mrs. Leach was willing and even anxious to deliver them to the true owners, upon their executing to her the indemnity which she was advised to demand, against the claim of two minors, who were jointly interested in the property with the complainants, and whose guardian forbade her to surrender them. This indemnity was promised, but never properly tendered. The proof further shows, that she retained the slaves under the advice of counsel, in good faith, and held herself ready at any time to deliver them to the true owners, when she should be justified in doing so. Under such circumstances, we think she should not be held responsible for what the slaves could have been hired for to others. It was uncertain when she would be required to turn them over, either to the court or to the complainants. She could not therefore hire them out for a specified time, lest she should not be able to control them, so as to make the delivery when demanded. Neither could she adjust her farming operations, so as to render them profitable to her, on account of the uncertainty as to the time she should retain them. But as the proof shotvs that they rendered her some service, it is proper that she should be charged with the value of whatever service they performed, taking into the estimate the situation in which she was placed in regard to them. The master should have been instructed to inquire and report whether any and what benefit accrued to her from the employment of said slaves, while they were in her possession, and the extent and value of such service, beyond the expense of feeding and clothing them. If any, she should be charged with that sum. Regarding her in the character of bailee or trustee for the owners of the slaves, and having acted in good faith, equity will protect her, and while she shall not make a profit to herself from the employment of the slaves, but for the owners, she must not, on the other hand, be subjected to loss. Greene v. Winter, 1 Johns. C. Rep. 40; McKinley v. Irvine, 13 Ala. 181-705; Hill on Trustees, 534.

2. In respect to the slave. Cary, we have no hesitation in pronouncing the decree erroneous. Waiving the consideration of the question, whether this deed from Jonathan to James B. Brantly did not create a contingent remainder in the complainants, subject to be destroyed by a sale on the part of James B., the person entitled to the life estate, we are very sure, the proof does not sustain the allegations of the bill in respect to the exchange and substitution by the donor and donee of Carey for the boy Watt. So far from this being true, the proof shows that James refused to make the contract, until Jonathan would give him a bill of sale to Carey, vesting in him the entire title. Jonathan, the donor, of course knew the interest which his son had in the slave Watt, as he held under his deed, and that he could purchase no greater interest than his son could sell. This interest he had a perfect right to acquire, and to- give in exchange for it the slave now in controversy. The bill of sale which was executed by Jonathan to James B., conveying an absolute title to the latter in Carey, with covenant of warranty, as to- title against the grantor, &c., very deary shows, especially when taken in connection with the other proof, that Carey was tobe held as the absolute property of James, and not subject to the limitations-expressed in the deed. It is then too clear to admit of any doubt, that James having an interest in Watt which he could sell, and did sell or exchange for this slave, held him discharged from any claim of complainant’s, either vested or contingent. We will not undertake now to decide whether the donor could defeat the remainder by a purchase of a greater interest than the life estate from the donee, as it is not necessary to a decision of this case, and will more properly arise should the remainder men seek to recover the slave from the donor. Upon the proof in this, case, it is very clear, the complainants should not have a decree for Carey.

Let the decree be reversed, and the cause remanded for further proceedings conformable to the views above expressed.