Bailey v. . Miller , 27 N.C. 444 ( 1845 )

Debt against the defendant, to charge him as executor de son tort of Francis Ackiss, upon a judgment obtained against the latter in his lifetime at June Term, 1840 of Pasquotank County Court. Upon the trial the evidence was that the slaves, with the intermeddling with whom the defendant was sought to be charged as executor of his own wrong, belonged to and were in the possession of the said Ackiss in 1840; that, afterwards and in the lifetime of Ackiss, the said slaves went into the possession of the defendant, who held and still continues to hold them for his infant grandchild, under a deed of gift, executed by Ackiss to the said child, who was his son, then of very tender years in the arms of a nurse; that his deed bore date 5 February, 1840, and was witnessed by the defendant and kept and exhibited by him, as the title by which he claimed the possession of the slaves; that some five or six weeks after the date of this deed Ackiss sold all the other (445) slaves which he owned, as he said, for the payment of his debts, and from that time he had no other property besides the slaves embraced in the said deed; that at the June Term of the county court of Pasquotank next following, he confessed the judgment upon which this suit is brought, for a debt due by a note given in 1839; and that he afterwards died insolvent, and no administration has been taken out upon his estate.

The defendant object to a recovery upon the ground, (1) That he could not be charged as executor of his own wrong, because he did not claim the slaves in question for himself, but for his grand child under a deed to the latter; (2) That there was no fraud in the deed of gift to the donee.

The court instructed the jury that, however it might be if the donee were of sufficient age to take charge of the slaves and hold them himself, yet in this case, where he was a mere infant of such tender years as to be entirely incapable of acting for himself, the defendant, his grandfather, might be charged, as executor of his own wrong, for intermeddling with the slaves, if the deed of gift was fraudulent as against the plaintiff. The question of fraud was then submitted to the jury, who found that the deed was fraudulent and gave a verdict for the plaintiff. Judgment being rendered pursuant thereto, the defendant appealed. The conveyance of the father to his son was voluntary and made when the donor was insolvent or on the brink of insolvency, and was clearly void as to debts existing at the time. It has been so found by the jury. Therefore, as respects the present plaintiff; the slaves are still regarded as the goods of the deceased debtor. There is no doubt that a fraudulent donee is liable as executor of his own wrong. Edwardsv. Haskin, 2 Term, 587. But it is said, that, although that be true, yet one who takes possession as the agent of the fraudulent donee (446) does not become executor, as he has a fair color for his possession, which gives a character to it and shows that he did not intend to administer the goods or in any manner to treat them as the effects of the deceased, which is said upon the authority of Turner v. Child,12 N.C. 25. That case, in which the doctrine held by the majority of the Court seems to us to be carried to the utmost extreme, does not, we think, apply to the present. There, everything was assumed to be bona fide, and that the agent continued to act under a sense of duty, and without being aware that the authority which he derived from his principal ceased at his death. His acts had a lawful beginning, and that was sufficient to excuse him, as the court thought. But the contrary is the case here. The origin and continuance of the defendant's possession are tainted with fraud, and without color of authority from any one. If indeed the fraudulent donee disposes of the goods to another, who accepts thembona fide upon a purchase, or even to keep for the donee, the vendee or bailee would not be executor de son tort. Com. Dig. Administrator, C. But that is because there is apparently no wrong in any one in that transaction, and that the possessor has no reason to consider the goods as being of the estate of the deceased. In this case, however, it is begging the question to call the defendant the agent of the donee. He is not his agent. He was never constituted his agent by any act of the donee, who had no capacity for that purpose. The defendant is in no way the agent, except so far as he made himself so. His authority was not conferred on him, but was officiously assumed by him, and but pretended. Therefore he cannot protect himself under the allegation that he derived the goods under a person who claimed title to them, and, being in possession, assumed to dispose of them. On the contrary, the donee here was incapable of assenting to the gift, and did not take possession and could not take it, and was of such tender age that he could not be executor, nor be sued as such. If, then, the defendant be not liable in this action, no one would be; which is another reason why the case is not within the rule that a bailee of an executor of his own wrong does not also become such executor, since in such case there is a person liable (447) to the creditors. But here there is none unless the defendant be. For if the grandchild were of age to assent to the deed and even to fill the office of executor, he could not be sued by the creditor; as it is not the paper title merely that makes one an executor of his own wrong, but it is the disposition or possession and occupation of the effects that do it. Here the infant sets up no title and has no possession; but the defendant takes it upon himself to set up title on behalf of the infant, to take possession and to defend it for him, although the infant, if a donee at all, is a fraudulent donee. Such unasked interference must be at the defendant's risk; for he had no right or duty to take charge of these negroes as the property of his grandson unless they should turn out to be the grandson's. His possession renders him liable to the deceased's creditors, as executor de son tort, in the same manner as it would enable the true owner of the slaves, if a third person, to maintain detinue for them. If this were not so, every insolvent might by collusion with his near relatives, defeat his creditors by conveyances to his infant children.

PER CURIAM. No error.

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