Booth v. Terrell , 16 Ga. 20 ( 1854 )

By the Court.

Lumpkin, J.

delivering the opinion.

This is an action of trover by Martha Booth against Richmond Terrell, for eight negroes. The plaintiff relies on the following title, namely: that her father, Richard Hodges, intermarried with'Louisa Terrell, the daughter of the defendant5 and by said marriage, acquired the title to Letty, who, together with her children, constitute the property in dispute. That Mrs. Hodges died some short time after her intermarriage with plaintiff’s father; and that thereupon, Richmond Hodges loaned to his mother-in-law, Mrs. Terrell, wife of the defendant, and at her special request, and by the consent and approval of the defendant, the girl Letty, to be held and enjoyed by her as a loan, during her life-time; and at her death, one of the witnesses swears, the negro was to be returned to plaintiff who is the daughter of Richard Hodges by a former wife. The other witness testifies to the same contract, in substance, except that he states the girl was to be retened to Richard Hodges or his heirs. Richard Hodges died in 1824; and by his will, bequeathed Letty to his daughter, the plaintiff m this action.

The Court charged the Jury that the loan of a slave by one person to another, for the life of the borrower, by a parol agreement that the slave should be returned .to the lender or his heirs, at the death of the borrower, vested an absolute title to the slave in the borrower.

This charge is excepted to, and the only question to be determined is, did the Court submit the Law of the case correctly, upon the facts proven ?

Counsel for the defendant below and in error, insist that the charge of the Court is sustained by the decision of this Court in Bryan vs. Duncan (11 Ga. R. 67.) And also by the doctrine ruled first by this Court in Kirkpatrick vs. Davidson (2 Kelly’s R. 301,) and repeatedly recognized since, that a remainder in slaves cannot be created by parol.

[1.] The point decided in Bryan vs. Duncan was, that in a will, the word lend was sometimes construed to be equivalent to give. And in support of this principle, Hinson and Wife vs. Pickett and Myers, adm’r, vs. Pickett (1 Hill’s Ch. R. 35,) was relied on.

[2.] Rut what was the reason given in both of these cases, for holding that in those wills the word lend meant, gift ? It was because “ the testator evinced a clear intention to part with the entire dominion over the party bequeathed. After his death, the property never could h.ave reverted to his executors. A final disposition of it is made by the testator”. Such is the language of this Court in Bryan vs. Duncan,

And in the case in Hill, Judge O’Neall says: “ the term. lend, when used in a lequest, is generally equivalent to give. In some special cases, it has its appropriate meaning: as in Baker vs. Baker Red, decided by this Court in December, 1831.. But in such cases, there is something which shows that the testator did not intend the legal estate to pass to the legatee. In-the will under consideration, the testator has not ’manifested any such intention; he uses the word to pass from him the entire property in the chattel; and it is worthy of remark, that he uses the word, (lend) not in relation to the life-estate, which he had created, as he supposed, for his daughter, but also to the absolute estate in remainder, which he also supposed he had created in favor of her children.

£8,] The testator parts with the entire dominion in the property; and it is absurd to say, that an estate which can never revert, can be a loan, which implies that the use of the thing is* parted with for a limited time, or for a special pur-pose, and the right of property remains in the lender. ■ It is therefore clear,, that the word lend, in this will, must be considered as synonymous with give”.

The cause of the defendant cannot derive much aid from these precedents. First, this is not a will, but a gift, inter vivos; and secondly, so far from the lender’s manifesting any intention to part with the title to this property, it is stipulated, expressly, that it shall be returned to him or his heirs, at the death of Mrs. Terrell.

[4.] Is this an attempt by Richard Hodges, to create, by parol, a remainder, in personal property ? What is a remainder ? The remnant of an estate, limited to arise immediately on the determination of a precedent particular estate. Read the testimony of Sarah Smith and George C. Hodges, and I am quite sure that it never would occur to any legal mind that Richard Hodges, by the loan which he made of Letty to Mrs. Terrell, for life, intended to create a neto estate in this negro, in himself, at the death of his mother-in-law. And this he would do, in legal contemplation, provided it were a remainder. One of the rules regulating remainders is, that they must pass out of the grantor, at the time the particular estate is created. And yet, Mr. Ten-ell, the defendant, declared, at the time that Hodges parted with the girl, that he had no claim on her, and that his wife only wanted her as a loan; and that he would return her at the old lady’s death.

[5.] It has never been decided by this Court, that a reversion, in personal property, could not be created by parol; although, from the use of that word, in the first opinion delivered upon this subject, (Kirkpatrick vs. Davidson, p. 302,) incautiously perhaps, it may be inferred that the Judge who wrote it out, supposed, at the time, that the rule applied to reversions as well as remainders. Be this as it may, we are clear that this is neither a remainder or reversion.

[6.] We have attempted to show that this is no remainder. Is it technically a reversion ? What is a reversion ? It is the return of an estate to the grantor and his heirs, after the grant is over. But here no estate, as we shall presently see, ever was granted; but a mere gratuitous permission to Mrs. Terrell to use the servant for a specified time — Hodges still continuing to be the owner of the slave, to all intents and purposes.

[7.] This, then, is neither more nor less than a loan — a contract of every-day occurrence, especially between fathers-in-law and sons-in-law. In this particular instance, however, owing to the peculiar circumstances of the case, the relative position of the parties to the transaction, happens to be reversed. The son-in-law is the lender, and the father-in-law, or his wife, the borrower.

Chancellor Kent defines a loan to be a bailment of an article for a certain time, to be used by the borrower, without paying for the use. (2 Kent’s Com. Lecture 40, p. 578, 4th Edition.) And this language is copied, almost verbatim, from Sir William Jones. See Treatise on Bailments, pp. 118, 217. Ayliffe says, “it is a grant of something, made in a gratuitous manner, for some certain use and for a certain term of time, expressed or implied, to the end that the same species should be again returned or restored again to us ; and not another species of the same kind or nature, and this in as good plight as it was delivered”. (Pandects, B. 4, tit. 16, p. 516.)

[8.] The obligation of the borrower is, to take proper care of the thing borrowed — to use it according to the intention of the lender — to restore it at the proper time, and to restore it in a proper condition. (Story on Bailments, §§282, 254, 255.)

[9.] Not only is the borrower to make a return of the thing, at the time, and in the place, and in the manner contemplated by the contract, but he must make alike return of all the increments and offspring of the thing lent. (Ib. §257.)

[10.] The continuance of the loan rests upon the good pleasure and good faith of the lender, and is therefore strictly precarious. A loan being strictly gratuitous, the lender may terminate it whenever he pleases. (Story on Bail. §277. Viner's Ab. Bailment D. Bacon's Abr. Bailment D. 9 Cowen, 687. 9 East. 49. 1 Dane's Ab. Ch. 17, Art. 4, §10. 2 Leon. R. 30, 89. Dyer, 48 b. Cro. Jac. 687. 2 Roll. R. 460. 1. Sir. R. 165. Shepherd’s Epitome — Countermand.

[11.] The thing loaned is to be restored to the lender, unless it has been agreed that the restitution shall be to some other person. If, the lender be dead, it is to be restored to his personal representative, if known. (Story on Bail. §262.)

[12.] During the period of the loan, the lender still retains the sole proprietary interest, and nothing passes to the borrower but a mere right of possession and user of the thing, during the continuance of the bailment:

[13.] So that an action for a trespass or conversion, will lie in favor of the lender against a stranger, who has obtained a wrongful possession or has made a wrongful conversion of the thing loaned. (11 Johns. 285. 7 Cowen, 753. 9 Ib. 687. 2 Saunders, by Williams, 47, b. Bacon’s Abr. Trespass C. 2. Ib. Trover C. 1 T. R. 480. 2 Camp. 464. 8 Johns. 432. 13 Johns. 141. 2 Kent’s Com. Lect. 40, p. 574, 4th Edition.)

The foregoing propositions, fully warranted as they are by adjudicated cases, demonstrate, so clearly, the nature of this transaction, to-wit: that it is neither a remainder nor a reversion, but a loan, for a definite period, with the express understanding, that at the death of Mrs. Terrell, the woman, and of course her offspring, born during the lifetime of Mrs. Terrell, should be returned to Richard Hodges, if living; or if dead, to his daughter Martha, or his heirs: I say, that this so unmistakably, is. the legal character of this contract, that we are unwilling to' olaborate it further.

I have said that these contracts of gratuitous loans, were subjects of daily occurrence, in the actual business of human life. This record shows that the very defence set up by Richmond Terrell, is founded upon the validity of such contracts. Whether the generous confidence bestowed by either or both of these parties, in the other, has been abused, remains to be seen.