Brooke v. Berry , 1 Gill 153 ( 1843 )

Archer, J.,

delivered the opinion of this court.

The inadmissibility of the' évidence of the articles of agreement set out in the first bill of exceptions, was put in the court below, upon the ground that there existed no privity between Brooke and Elisha Berry, or that he claiméd title under Elisha Berry; this could certainly furnish no justifiable ground for the rejection of the evidence. If the articles of agreement furnished evidence that Elisha Berry's title had passed to the plaintiff, (the plaintiff having first shown that Elisha Berry had title,) they established his right to recover against the defendant, whether the defendant claimed title under Elisha Berry or not, and whether he had any connexion with Berry or not If a contrary doctrine prevailed, every wrong-doer would defend himself against a plaintiff’s title, however clearly made out, if he could establish the fact that he were not in privity with the party from whom the plaintiff deduced his title. Such a doctrine would be subversive of all the principles upon which the action is founded. This ground is, however, not insisted upon in this court, but it is said, the articles of agreement should be rejected as evidence, because they are not accompanied with any proof, or offer to prove, or statement of counsel, that they have proof of the identity of the negroes replevied, and the negroes named in the agreement. It is admitted that the question before us is, the admissibility of the evidence, and not the correctness or incorrectness of the particular ground upon which the court below may have decided the question; and it must be admitted, that without some evidence showing the identity of the negroes, the articles of agreement would not establish the plaintiff’s title. But having shown title in Elisha Berry, these articles of agreement constituted a link in the plaintiff’s title, and would or would not be evidence in the cause upon the establishment or failure to establish the identity of the negroes. Before, however, the plaintiff has an opportunity of disclosing his whole case, the evidence is objected to upon a ground which assumes the identity of the negroes, placing the inadmissibility of the evidence upon the want of privity between Elisha Berry and the .defendant. In such a state of the case, we apprehend the coprt below were fully justified in acting upon such assumptioh1 in forming their judgment on the admissibility of the evidence. But independent of this ground, we think the court were right, because the bill of exceptions contains evidence proper for the consideration of the jury, as to the identity of the negroes. It is proved, that for ten years anterior to the 1st of January 1837, Elisha Berry was in possession of the negroes replevied in this suit, to wit, Bill, John and Hanson, and the articles of agreement stipulate that Bill, John and Hanson, among others, shall be furnished to Berry, the plaintiff, and shall remain with him for ten years from the date thereof. Now this was certainly evidence from which it could be inferred that the negroes replevied and the negroes in the agreement were the same, unless it were shown on the part of the defendant, that Elisha Berry had other negroes of the same name. We therefore think the court were (right in their opinion in the first hill of exceptions.

That an action of replevin is an appropriate remedy in this ease, we cannot doubt. By the law of Maryland it is appropriately applied to all cases in which the plaintiff seeks to try the title to personal property, and recover its possession, and we are clearly of opinion, that the plaintiff was entitled to the possession of these negroes, which had been delivered to him ¡under the agreement, and that his right of possession was not divested by their running away and getting into the possession of the defendants, and that as preliminary to the establishment of such right of possession, no evidence whatever was necessary to be furnished of a performance, or a readiness to perform the agreement on the part of the plaintiff.

The covenants in this deed are independent. The covenant to deliver the negroes to the plaintiff, is first in order of time, for without the negroes the plaintiff could not make a crop to divide according to the agreement, with the defendant Berry, and if there had been a failure to deliver the negroes, an action •could have been immediately sustained on the covenant. There existed a present and immediate right in virtue of the contract to the possession of the negroes, and the contract was executed by the parties in conformity with this construction, and the plaintiff was entitled to the possession for the whole term of ten years by the express stipulations of the contract. Neither party possessed any power to rescind the contract against the will of the other, nor did the non-performance by the plaintiff on his part (if such were the fact,) destroy the rights which he had acquired under the contract. The casual possession of the negroes acquired by the defendant Berry, did not enable him to retain the negroes, and to treat the agreement as a nullity. That it was the intention of the parties to. the contract, that possession of the negroes should, immediately on the execution of the agreement, pass to William F. Berry, is clear, not pnly from the acts of the parties, but from the terms of the agreement. The negroes are proved to have been immediately .delivered, and the agreement stipulates that he shall have them for ten years from the execution of the agreement. The case of Culver vs. Shriner, reported in 5 Harr. & John. 219, does not pilitate against our views in this case. On the contrary, they are strengthened by the opinion expressed by the court in that pase. The court there say, that ‘ifrom every part of the artíceles entered into between the parties, it is most evident that ffeach relied upon the instrument of writing to compel a com-r “gliance with their respective stipulations.” But in this case no such reliance was placed, so far as regards the delivery of the npgrops in pontrovery, They were to pass upon the exe; cution of the agreement; for, by the terms of the agreement, William F. Berry was to be furnished with the property for ten years from the date of the agreement. It is apparent that the action of replevin would have been sustained in the case of Culver vs. Shriner, if the contract had been executed; for the court say, “if it had appeared that Shriner had complied with the contract, that the mother of the children in controversy had been kept on the place where the children were born, and that Shriner had got a possession which Kemp’s executor sought to disturb, then it might be said that the property and every right to the issue passed, for it was both a covenant and p grant.” In the case before the court, the right of possession yras intended to pass on the execution of the agreement, and Recording to the agreement the possession did actually pass, and the rights of W. F. Berry were thus perfected in the property. No act was to be done by W. F. Berry, as preliminary to fhe accrual of his title. The consideration which he was to give, arose after the crops were made with the hands and implements furnished, and the property thus acquired could not be divested either by a failure to comply with his part of the Contract, or by the negroes getting into the possession of Elú sha Berry by absconding.

The fourth bill (of exception is taken upon the admission by tire court of a certain conversation passing between sundry witnesses and Elisha Berry, in the presence of the other defendant Brooke, in reference to Elisha Berry’s design and intention in executing the deed of 1840, in relation to the negroes in controversy. This evidence is objected to as inadmissible upon the ground that no parol evidence can be received to contradict a deed. Had evidence been offered for such a purpose, it would have been clearly inadmissible. But it appears from the evidence detailed in the third bill of exceptions, which is made a part of the one now under consideration, that evidence had been offered on the part of the defendant to show that after the deed had been executed, upon a demand made upon the plaintiff for the negroes in controversy, he had surrendered and abandoned all right to them. The evidence now offered was admissible for the purpose of rebutting the evidence thus offered on the part of the defendant. That he should have sought out Elisha Berry immediately after the language attributed to him, and should have demanded of him whether he authorised Brooke, the grantee in the deed, to demand or interfere with the property mentioned in the agreement of January 1837, was calculated to induce the jury to believe that he bad not surrendered the property, and was proper evidence to be submitted to them, on the question, whether he had or had not abandoned the property.

JUDGMENT AFFIRMED.