Nelson v. Beck , 54 Ala. 329 ( 1875 )

MANNING, J.

Alanson Saltmarsh, appointed by Wm. B. King, late vice president of the United States, of Dallas county, deceased, executor of his last will and testament, assumed the duties of the office in May, 1853. Under a clause in the will, appellee, Wm. R. King Beck,- became entitled to some slaves, which, in January, 1854, when appellee was between four and five years old, and was residing with and under the protection of Franklin K. Beck, his father and natural guardian, in Wilcox county, the executor, Saltmarsh, turned over to the latter for the son, upon receiving from the father a receipt for them, signed “Wm. R. King Beck, by F. K. Beck, guardian.” The slaves were taken to and remained upon the plantation of the father as the property of the son, until the death of the father in 1864, and continued thereon in the same manner until the emancipation of them by the event of the late war, and the public measures consequent thereon. Neither Franklin K. Beck, nor any other person, disposed of or claimed the slaves as the property of any other person than appellee. Nor does it appear that any person was ever legally appointed his guardian.

Appellee became of age in May, 1870, and a little more than two years afterwards he brought this action of trover against appellant as administrator of Saltmarsh, who was then dead, for the conversion of the slaves by the latter in January, 1854. And it is insisted that the facts mentioned constituted a conversion of the slaves by Saltmarsh. The court below held that they did; and a verdict was rendered in favor of appellee, plaintiff below, for several thousand dollars.

It is laid down as a general rule that, “where a legatee is an infant and would be entitled to receive the legacy, if he Were of age, the executor is not justified in paying it either to the infant, or to the father, or any other relation of the infant, on his account, without the sanction of a court of equity.-2 Will, on Executors, 1206.

The cases from which this rule was deduced, were those of bequests of money, which, having been paid to the fathers of the legatees, respectively, was spent by them and lost to the legatees, and for which actions ex contractu were brought on behalf of the legatees.

In Lang v. Pettus, 11 Ala. 37, as in this cause, the legacy was of slaves, which the executor delivered to the infant legatee’s father, who removed them frqm Alabama into Mississippi, and there sold and disposed of them, so that they were lost to the legatees. This court held that the executor was bound to account to the legatees for these slaves, in his settlement in the orphan’s court, which granted to him the letters testamentary. It is clear that an executor remains responsible for property which comes to his possession as executor and is bequeathed to a legatee, until it is delivered to the legatee, or, if he be a minor, to his guardian, unless otherwise lawfully absolved. He is not fully discharged from the duties of his trusteeship, as executor, until this is accomplished.

The cause before us is not from a probate court, or a court of chancery, in which defendant was proceeded against as the administrator of an executor, or of a trustee, accountable as such in those courts, to the appellee. The action is at law against the administrator of Saltmarsh, for a conversion, by the latter of the slaves that King bequeathed to plaintiff below, appellee in this court. ' It proceeds upon the ground and idea that Saltmarsh, the executor, had assented to the legacy, whereby the legal title and right of possession were transferred to plaintiff, and that the subsequent dealing and control of Saltmarsh, in respect to the slaves, were not those of a trustee accountable in equity, and having authority as such, but of a mere bailee. The action assumes, and the counsel for appellee insist, that the slaves had become separated from the estate of Mr. King, that Saltmarsh’s power over them as executor had ceased, and that there remained in him only the duty to take care of them, to be delivered whenever demanded, to the guardian of the plaintiff.

These are, indeed, the only views which are consistent with the form of the action. It is not adapted to hold the administrator of Saltmarsh responsible for any hires or profits that the latter received, or which it may be supposed he ought to have made the property bequeathed produce, or for any negligence or omission of duty, but only to recover the value of the property converted and damages for the conversion — for a tort. If the action be maintainable in this case, there having been no demand for, or refusal to deliver the slaves, it must be because any disposition by Saltmarsh of the slaves, which put them, no matter for how short a time, out of the reach of plaintiff, or his guardian, is a conversion. But this would be a conversion only because Saltmarsh became a mere bailee of the slaves, bound to deliver them on demand, when they were separated from the testator’s estate, and then ceased to have the authority of an executor over them. The legatee was at that time a minor, and no guardian for him had yet been appointed; and no one seemed disposed to accept the office. What, then, was Saltmarsh, as such mere bailee, to do with the slaves which he held subject to be at any time demanded of him ?

He may not have desired, and was not bound to employ them in working for himself, even if it had been proper for him to do so, and their labor would have been profitable to him. And not being guardian of appellee he had no authority to hire them out, if he could have advantageously done so. He, perhaps, might, tinder the laws of this State, have procured the appointment of a legal guardian to the legatee, if he could have found any person willing to act as such, and then have safely delivered the slaves to such guardian. This would have been a prudent course. But it was not the duty of Saltmarsh to interfere, when the father and other relatives of appellee were living, and go to the part of the State in which they resided, to have such an appointment made. And whether it was or not, or, if he were neglectful of his duties in this or any other regard, the action brought is not a proper one for obtaining redress for any such delinquency. So far as this suit is concerned, the slaves must be considered as remaining in his hands as upon a bailment, to be delivered on demand.

Now, then, in what manner must Saltmarsh keep the slavfes ? Certainly not in his own house; or, where they could not be ever out of his view; not necessarily on his own premises. It is sufficient, if they be taken care of for the legatee and always' as his, so that whenever demanded they shall be forthcoming to be delivered to him if he be of age, and if not, to his guardian, without the obstacle of any opposing claim.

Was there any time, before the emancipation of these slaves, when they were not in this situation of subjection to the demand of any legal guardian of appellee ? The executor, with a view to the safe-keeping of them in the best manner, for the appellee and as his, let his father, his tenderesfc friend, take them into the neighborhood in which • the son lived, and where', as he grew up, he would see and know them as his property; the father delivering to the executor a writing in which the ownership of the son is explicitly affirmed and acknowledged. The instrument and act did not, probably, release Mr. Saltmarsh from all liability. But it would be a strained interpretation, on the other hand, to hold that they were tortious toward appellee, hostile to his interest, or subversive of his rights. The effect of them was, it seems to me, to constitute Beck, the father, as agent of Salt-marsh, or in his place, custodian of the bequeathed property, for Beck, the son, and to make Saltmarsh responsible for the fidelity of this custodian. If the latter was true to his trust, did not put the property out of reach, or do any act subversive of the dominion of his son, then a lawful demand and refusal to deliver would have to be proved before Saltmarsh could be 'so put in the wrong as to be liable at law for a conversion of the slaves. It is not contended that any such demand was made.

It is argued, however, that the transfer of the slaves to the father, who had not been appointed the legal guardian for his son, Avas itself a conversion, according to the rule cited (supra) from Wms. on Executors, and other authorities, and according to the principle of the cases in which a carrier, or other bailee, who, even by mistake, delivers the property of one person entrusted to him, to another to whom it does not belong, is made liable in trover for a conversion.

But, in the cases of -the former class, the legacies were lost to the legatees by the acts, or bankruptcy of the persons to whom they were entrusted by the executors, and the actions against them were not trover without demand made. It would hardly be contended that if a legacy had been paid or delivered to the legatee while he was a minor, or to his father to be kept and taken care of for him, and had been Avell taken care of, and was in possession of the legatee when he became of age, or was then offered to him by his father, that he should, without anything more, recover the value of it again from the executor as for a conversion. And in the cases of the latter class, the goods bailed were delivered to others, not as the property.of, and to be kept for the true owners, but as not theirs, — whereby the property was, no matter how unintentionally, or temporarily, put beyond their control, in violation of their rights.

But there is no conversion of goods for which trover will lie, unless there be a repudiation of the right of the OAvner, or the exercise of a dominion over them inconsistent with that right. —Heald v. Carey, 9 Eng. L. & Eq. Rep. 429.

Hence; it was held by all the judges of the English court of common pleas, that the following facts did not constitute a conversion: An agent at Dunkirk of a transportation company, found one of several cases of goods, which had been sent by plaintiff, Heald, from Paris to N. at London, damaged, and had it detained and inspected according to French law, and then, not knowing the address of N. in London, consigned it to defendant Carey, the broker of the company there, to hold at the disposal of N. or order. The case not being called for in due time,’ Carey paid the duty on it, and had it moved into, the warehouse of B, and B afterwards had it removed to another of his warehouses, where it was burned by an accidental fire. In some of the features of this case it is similar to the one before us.

In Addison on Torts, the law is laid down as follows : A mere negligent dealing with goods by a bailee, to whom they have been delivered, is not a conversion of them. He may be liable to an action for negligence, but not to an action for conversion; which only lies where some dominion is asserted by defendant over the chattel, the subject of the action.”— 1 Vol. p. 306 of Amer. Ed. of 1876.

The same doctrine is held by this court. In Rand v. Oxford, (34 Ala. 477,) R. W. Walker, J., says : “What is a conversion ? This court has answered this question by deciding that to constitute it there must be a destruction of the plaintiff’s property, or some unlawful interference with his use, enjoyment or dominion over it, or an appropriation of it by the defendant to his own use, in disregard or defiance of the owner’s rights.”—Conner & Johnson v. Allen, 33 Ala. 515. In another case it was defined as any intermeddling with, or dominion over the property, subversive of the dominion of the true owner, or of the nature of the bailment, if it be bailed.—Freeman v. Scurlock, 27 Ala. 413. In Conner & Johnson v. Allen, supra, the court further say, that a disposition of a thing that is made “to do a kindness to the owner, and without any intention of injury to the thing, or of converting it to the use of the person disposing of it, and merely conservative of it and perfectly consistent with the right of the owner and his dominion over it,” is not a tort.

Precisely of this nature was the disposition made by Salt-marsh of the slaves which are the subject of controversy in this cause.

In Heald v. Carey, above cited, a box of goods was consigned to defendant in London, subject to the disposal of one Nisbett there, which, not being called for in due time, Carey paid the duty on and put in a warehouse of another person, where it was burned by an accidental fire. In the course of his opinion in that case, Jervis, C. J., said: “It is first said that he was not authorized in fact by the plaintiff to do what he did. But, if the goods were consigned to him; whether he had authority to pay the duty or not, he was authorized to put them in safe custody. Next, it is said that defendant did not act as a prudent man would have done. But, it is not necessary to consider that point, as that would not make him guilty of a conversion. Further, it is said that the defendant acted from indirect motives. But if a man acts, not wrongfully, though from improper motives, that does not make him guilty of a conversion.”

Maulé, J., said: “The goods in this case were in the hands of the defendant, under condition to be held by him for plaintiff. He had something to do in respect of them. It was his duty to put the goods into a fit place; and it is not said that the place in which the goods were placed was not a fit one. I .do not think there was any negligence, and there certainly was no conversion. There is no conversion unless the act is done in the assertion of dominion over the goods.” Cresswell, J., said: “How can it be said that he was a conversioner ? He has never repudiated their right, or done anything inconsistent with his receiving the goods to take care of them. It is not said that he put them into a wrong place. He put them in a proper place for Nisbett to get them from. That was no conversion, or a conversion' for the real owner.” All the judges concurred.

Slaves, of course, could not be put into a warehouse. In fact, as well as according to the decision in Rand v. Oxford, supra, a plantation was a proper place on which to keep them. In the language of B. W. Walker, J., in that case: “We must be presumed to know that moderate labor is not only promotive of the health of a slave, but essential to the preservation of that wholesome discipline on which his value so materially depends.” These slaves were put, and kept, and remained on the plantation of appellee’s father, as the acknowledged property of appellee, and for him, until his title to them was destróyed by irresistible political authority, no demand for them or refusal to deliver them having in the meantime been made.

To hold that the facts of this case constitute a conversion, seems to me a misuse of words that tends to make legal definitions uncertain, and rights and obligations indistinct. There never was a time until the emancipation of the slaves, when they were not held for plaintiff below, with his ownership of them acknowledged, and just where a guardian, if he had had one,'could most easily have obtained them, and where it was apparently most advantageous to plaintiff that they should be. The first act done in defiance of denial of his dominion over them, was the act of emancipation, which annihilated his title; an annihilation from which there would have been no exemption, no matter where in the State or with whom the slaves might have been.

These views have failed to receive the acceptance of a majority of the court. They hold that the delivery shown of the slaves to appellee’s father, was a conversion of them; and that there is sufficient evidence apart from that act, of the executor’s assent to the legacy.

Wherefore, the judgment of the circuit court is affirmed.