Whitmer v. Nall's Exr. , 2 Ky. Op. 361 ( 1868 )

Opinion of the Court by

Judge Peters:

In June, 1857, Felix Nall made and published his last will, • and died in February, 1861. In a short time after his death the will was probated, and William P. Nicholls, a son-in-law of testator, and the executor named in the will, qualified as such. Mrs. Mary G. Nall, the widow, renounced the provision made for her, by her husband in his will, and claimed dower in the estate. About the 22d of August, 1861, the executor filed his petition in equity in the Muhlenberg circuit court and in the county of the residence of testator at his death, against his widow, devisees aud heirs, some of whom were infants, asking the chancellor to construe the will, to direct him in the execution thereof, and to settle the rights .of the parties — alleges that the testator, after the publication -of his will, acquired two slaves, Mariah and Kate, and owned a man Mart at the. time of its publication, and owned them all at his death, that they could not be divided in kind, and prayed for a sale of the slaves.

After giving construction to the will, and settling the rights of 'the parties, the court decreed a sale of the slaves, appointed his master commissioner to execute the judgment, prescribing the manner the slaves were to be sold and terms of sale. The master at the November term, 1865, of the court, reported the sale, which was confirmed without exception, and from which it appears that he made the sale on the 10th of November, 1865, on a credit of six months, and that appellant Whitmer bought the man Martin at the price of $225, and executed his bond with J. Kittinger as his surety. That H. G. Bidwell purchased one of the women, and her child, at the price, of $151, and executed bond and surety. The other woman sold for $50, but as there is no controversy about her, nothing further need be said of her sale.

Early in 1866, before their bonds matured, Whitmer and Bid-well filed their separate petitions in the Muhlenberg circuit court, to enjoin the collection of said bonds, and to have them cancelled, their actions were consolidated, and on a final hearing the court below dissolved their injunctions and dismissed their petitions, and from that judgment they have appealed.

In the very elaborate brief of the counsel for appellants two grounds are relied upon for reversal.

1st, that a judgment for the sale of slaves was rendered in an action brought by Nall’s executor vs. Nall’s devisees, etc., to have the will construed, that the court had no jurisdiction to render judgment to sell the slaves in that 'action, and that the proceedings, if the court had jurisdiction, were irregular, did not conform to the provisions of Chap. 86 of R. S. regulating the proceedings for the sale of slaves, if infants, and that the judgment was void.

2nd. That the consideration for which the bonds were executed had wholly failed.

As to the first objection, it is true, the action in which the judgment for the sale of slaves was rendered stands in the name of “William P. Nieholls, executor of the last will and testament of Felix, Nall, deceased, vs. Mary G. Nall, widow, etc.” But it appears in the pleadings, and exhibits, that he was the son-in-law of testator, his wife was living and a party to the action, the summons was served on all the infant defendants, all the adult defendants answer, admit the facts alleged in the petition, join in the prayer for a construction of the will, and for distribution and partition of the estate, as directed by the will. And the statutory guardians of the infants answer and join in the prayer for a full, final and equitable division and distribution of the estate.

It is perfectly certain that a division in kind of the slaves could not be made, they were held jointly by the parties, to the action, except the slave Martin, whom the testator directed to be sold after the expiration of 5 years, and of course, his executor had authority to sell him without the aid of a court of equity. The others did not pass by the will, but passed by the law of descent to the testator’s heirs, he dying as to them, intestate, and under Art. 11, Chap. 86, 2 B. S. 303-1, any one or more of the parties interested could petition a court of equity to make the sale, and the court will decree a sale and distribution of the proceeds. The proceedings under which the slaves were sold were doubtless under the statue herein referred to, and in the prayer for a sale, the infants, by their guardian, joined and for that purpose and to that extent were plaintiffs.

But even if they are to be treated as defendants to the action, and they did not answer by guardian ad litem, the judgment rendered against them is not void, but voidable only, and if prejudicial to them they may reverse it, but it is valid and binding until reversed. Porter’s heirs vs. Robinson, 3 Mar., 251; Allison vs. Taylor, 6 Dana. 878.

Hay & Thompson, for appellant.

In the decree for a sale of the slaves, therefore, no error is perceived which can avail the appellants..

At the date of. the sale, the adoption of the amendment to the Constitution of the United States was not only most probable, but was regarded generally as an event certain to take place within a short period, whereby the slaves in the United States would be emancipated. None could buy slaves then in ignorance of the precarious tenure by which such property was held, indeed there was no intrinsic or real value in slave property, and none could buy such property with the hope that there was any more than a contingent, speculative value in it. But even if there was no value per se in the slaves that fact did not destroy the legal obligation of the bonds given by appellants. They took the slaves as' the sellers held them, there is no implied warranty of value. The prospect of value though remote, and of gain was the consideration, and a sufficient legal consideration to uphold the bonds, unless there was a fraudulent misrepresentation or concealment in the sale, of which there is no allegation or proof in this case. Lightburn vs. Cooper, 1 Dana, 273.

Nor can the failure of appellees, to deliver to appellants the negroes at the expiration of the term of their hire change the case even if there was any proof that they were to deliver possession then, the title passed by the confirmation of the commissioner’s report of the sale, and vested in them, they then held them subject to all casualties shat befell such property as other owners.

Judgment affirmed.