Raby v. Batiste , 27 Miss. 731 ( 1854 )

Mr. Justice Handy

delivered the opinion of the court.

This bill was filed in the district chancery court at Mississippi City, by the appellants, to have partition of certain lands. The bill alleges that the lands were confirmed by act of co'ngress in 1830, to Francisco Krebs in part, and to Antoine Krebs in part, and that Francisco at his death devised his portion to Antoine Krebs, who afterwards died leaving a son Augustine, and a daughter Eugenie, who intermarried with the defendant Batiste; that in 1839, Augustine conveyed to the complainant Raby and one Frederick, who is since deceased, all his right, title, and interest in these lands, for the consideration of one thousand dollars paid in cash, and eight hundred dollars to be paid; that Batiste after his marriage, representing his wife to be the sole heir to the lands, had resurveys made of the lands, and patents issued according to these relocations in the names of the original parties to whom the lands were confirmed, and has possession of all the lands except some parcels which he has sold. The object of the bill is a discovery as to the relocations and an equitable partition between the complainants and the defendants.

The defendants deny that Augustin was the son of Antoine Krebs, and entitled to any part of the lands, and charge that the deed from Augustin to the complainants was obtained by fraud, and that no consideration was paid for it.

On the final hearing, the vice-chancellor dismissed the bill, and the complainants have appealed.

First, as to the heirship of Augustine. It is contended by the appellees that he was not the son of Antoine Krebs, but was a mulatto, and that his father was a negro, his mother after his birth having married Antoine Krebs, and the wife of the defendant Batiste being the sole issue of that marriage. A great mass of testimony upon this point is set forth in the record, and there is much conflict, in the statements of the witnesses in many respects. It is clearly proved that he married a slave, that he did not claim or exercise the right to vote at elections, to act as a juror in court, or to testify against white' men in court; and though several witnesses testify that he was considered to be a white man, yet from all the evidence we are satisfied he was a mulatto, and being such, the subsequent recognition of him by Antoine as his son, and the marriage of Antoine with his mother,’ could not render him his legal heir.

Second, as to the .consideration for the deed under which complainants claim. It is shown that nothing was paid as purchase-money, and the parties admitted that nothing was to be paid until possession was delivered, which has never been done. The circumstances under which the deed was obtained, as proved by the witnesses, render the transaction suspicious, and go to show that a fraud was practised in procuring the deed, and this is a sufficient answer to the equitable claim of the-complainants, even if Augustine were shown to be the lawful heir of Antoine Krebs and the brother of the wife of the defendant Batiste. For if she were his sister, it would certainly be competent for her to show, as his heir, that the deed was obtained from him without consideration and through fraud.

The decree affirmed, with costs.