Howard v. Snelling , 28 Ga. 469 ( 1859 )

By the Court.

Lumpkin, J.,

delivering the opinion.

Was the Court right in granting a non-suit in this case ? It was moved for on three grounds — 1st, Because of the non-joinder as plaintiff's of all the parties interested in the property.

And this presents the question, whether one or more joint-tenants, or tenants in common, may sue separately in trover. In Starnes & Pearce, (6 Geo. Rep., 84,) it was decided that it might be done; and that no advantage could be taken of it on the trial. When this objection was made, the ease was on the appeal trial. We are inclined to think that such omission would not be good by plea in abatement, notwithstanding the dictum to the contrary, in the case referred to.

The second ground upon which this nonsuitwas awarded is, that the plaintiff's had no legal title, in themselves, to the property.in dispute. The life estate reserved to Samuel Tompkins, and Polly, his wife, terminated in 1856. In nine months thereafter an equal division of the negroes given by the deed was to have been made. Robert Rutherford, one of the trustees, is dead; the Mother, Franklin Rutherford, resides in Alabama. Some of the Court think that the trust terminated at the time that the negroes were to have been divided; that the trust was created for the benefit of after-born children, who were to be let in under the conveyance. All of us agree, that if this were not so, that the cestui que trust were entitled to the possession of the negroes, and could, therefore, maintain this action against a stranger, to recover the possession. The trust is nominal. The defendants themselves have sworn, in defence of a suit by the surviving trustee, against them, that he is no longer a trustee; and we think they were more than half right. He is aged, and infirm, and a non-resident. He had best make a formal surrender of his trust.

Would not a recovery by the plaintiffs protect the defendants? Suppose the trustee were to recover those negroes ; it would be for the benefit of the plaintiffs, and solely for the purpose of dividing the negroes between them. And if it were shown that they had already recovered the property themselves, would not a court of equity interpose and enjoin the suit? Undoubtedly it would.

3dly. Ought a non-suit to have been granted on account oí the misjoinder of the defendants?

It seems from the record that there was no proof authorizing a recovery against'James Snelling. The testimony is, that he once held in his possession Harriet and her youngest child. There is no evidence that he converted them, nor was any demand made of him. Instead of non-suiting the case, then, it should have been submitted to the jury, that if they found that John Snelling had all the slaves sued for in his possession, at the time they were demanded, or that he had made distribution of them, in the language of the witness — and there is evidence from which it may be inferred that such was the fact — in that event, they might find damages against John # Snelling, for all the slaves. If however, they found, from the proof, that two of the negroes, Harriet and her youugest child, were in the possession of James Snelling, and there was no proof of any conversion by him, they should find generally for James Snelling, and a verdict against John Snelling for the rest of the negroes. In this way the verdict would cover all the issue, and be obnoxious to no legal objection..

Our judgment, therefore, is, that the non-suit be set aside and the case re-instated, and upon the next trial, unless the plaintiffs can prove a conversion by JamesSnelling, his name should be stricken from the writ.

Judgment reversed.