Haden v. Tucker , 38 Ala. 399 ( 1862 )

STONE, J.

Only a single question has been argued, and we propose to confine our remarks to that question. The first charge given to the jury, and excepted to, raises the question, can the plaintiffs maintain the action of trover on the facts of this case, as supposed in that charge ? There is nothing in this record from which we can infer that the sale of the slave Ellen was completed, and the bill of sale afterwards executed ; and hence, we need not consider how we would decide such supposed case. On the contrary, the facts <jf the case tend to show that the parties intended that whatever contract they made should be evidenced by writing, and that they did reduce it to writing. The writing is, then, the only evidence before us of any title actually conveyed. That writing vested the title in Mrs. Woolworth, then Mrs. Perkins. This conclusion rests on the familiar principle, that when parties reduce their contract to writing, all previous negotiations are presumed to be merged in the writing. — Dill v. Thomason, 30 Ala. 444, 454, and authorities cited.

But it is contended, that Mrs. Woolworth objected to the bill of sale, because it was made to her, and not to her daughter; and it was agreed that another title, directly to her daughter, the female plaintiff, should be substituted for the one then executed. This, we think, can not vary the case. Although Mrs. Woolworth objected to the title, on the ground stated, still she accepted it; and we are not informed: that it has ever been changed. The view most favorable to plaintiffs which we could take of this case, would lead us to hold, that the parties had intended to make one contract, and had made another. In such case, the unexecuted intention must yield to the contract actually made. — Sanford v. Howard, 29 Ala. 684; Mobile Marine Dock and Mutual Insurance Co. v. McMillan, 31 Ala. 722.

It is manifest from what we-have said, that the evidence in this case fixes the title in Mrs. Woolworth. She alone, and those claiming in her right, could have maintained a suit for a breach of that contract; and she alone had the legal title, which was necessary to maintain the action of trover.' Whether she might have been declared a trustee, and compelled, in equity, to surrender the slave to her daughter, is a very different question, not necessary to be here decided. — See Jones v. Trawick, 31 Ala. 253; Sledge v. Clopton, 6 Ala. 589.

We do not think the case of Rowan v. Hutchinson, 27 Ala. 334, when properly understood, is adverse to our rulings above.

What we have said is decisive of this case, and j;he judgment of the circuit court is affirmed.