Houston v. . Smith , 41 N.C. 264 ( 1849 )

In 1827 the plaintiff Houston sold to the defendant a negro girl, 17 years of age, for the price of $350, for and during the life of the defendant, who at the same time executed a panel bond in the sum of $350, with the condition that the negro girl and her issue should be returned to the said Houston at her death, and if the defendant or her assignees should remove the negroes out of the county the said Houston should take immediate possession, as though the defendant was dead.

In 1844 the defendant executed a bill of sale to one Grier for the said girl and her five children, for the life of the defendant, under which Grier took possession and carried the slaves to South Carolina, whereupon the plaintiffs Samuel and James Davis, agents of the said Houston, seized the negroes, alleging that the life estate was forfeited, brought them back to this State, and afterwards sent them to the plaintiff Houston in the State of Mississippi. The defendant thereupon brought an action of trove against the said Samuel and James Davis, and, at Fall Term, 1847, recovered judgment at law for the sum of $1, 120, the value of her life estate. On the trial of the action at law the (265) defendants in that action resisted a recovery on the ground that the defendant (then plaintiff) had forfeited her life estate by having sent the negroes out of the State, and to prove that fact, called the said Grier as a witness. Upon his examination Grier denied that he had any knowledge that the negroes had been sent out of the State by the defendant, and stated that he had no communication with her, except by the intervention of one Cunningham, her nephew, who was the subscribing witness to the bill of sale purporting to be made by the defendant to the said Grier, and who delivered to him the bill of sale and the negroes; but Grier knew nothing of his own knowledge as to the act or assent of the defendant. Grier stated that he and Cunningham carried the negroes to South Carolina, where they were seized and taken into possession by the plaintiffs Samuel and James Davis. He could not prove the mark of the defendant to the bill of sale to himself, exhibited in court. The judge who tried the case at law instructed the jury that there was no evidence that the negroes had been sent out of the State by the present defendants, and the jury found a verdict in favor of the present defendants; damages, $1,150. A new trial was moved for by the defendants (who are now plaintiffs) on the ground of surprise as to the testimony of Grier, and also as to misdirection as to the law. The judge allowed the defendants (now plaintiffs), upon the motion for a new trial, to have the said Cunningham subpoenaed, and he was examined. He stated that he was a witness to the bill of sale by the defendant to Grier, and delivered the bill of sale and the negroes to him, but that Grier was not present when the bill of sale was executed. The motion for a new trial on the ground of surprise was refused. The bill charges that, shortly after the trial, the plaintiffs in this suit discovered that the defendant had executed the bill of sale for said negroes to the (266) said Grier for the purpose of his taking them out of the State, and that those facts were suppressed and kept secret by a combination between the defendant and Cunningham (her nephew) and the said Grier. The prayer is that the defendant be perpetually enjoined from collecting the sum recovered by her at law.

The defendant admits that she executed the bill of sale to Grier, but avers that she did so because she was apprehensive that the plaintiffs would seek some opportunity to get possession of the negroes and run them out of the State, as the plaintiff Houston had done on a former occasion. She denies any assent, expectation, or belief on her part, when she made the bill of sale of Grier for her life estate, that he would take the negroes out of the State. She denies that there was any combination between her and Grier to suppress and keep secret the fact that she had made the bill of sale. On the contrary, she avers that the plaintiffs knew of the bill of sale, that it was exhibited on the trial at law, and that the said Grier did not have any personal knowledge of its execution, and, as the subscribing witness Cunningham had not been summoned by the plaintiffs (although they knew he was the subscribing witness), the presiding judge before deciding the question for a new trial allowed him to have the said Cunningham subpoenaed. He was fully examined, and, although he proved the execution of the bill of sale, he also proved that Grier had a personal knowledge of the fact that it was made without consideration, that the defendant made it under an apprehension that the plaintiffs would deprive her of the negroes, and that they would be more secure if held by Grier, and that it was surrendered to her before the negroes were taken from the State by the plaintiffs. We are at some loss to know upon what ground of equity the plaintiffs put their case. If it be upon the ground that they have not had a fair trial at law, they have not prayed for a new trial, but merely pray for a perpetual injunction, as if the matter was there to stop. They do not allege the discovery of any evidence, since the adjournment of the court which gives them in equity a right to ask for a new trial at law, but merely allege that, after the trial, they discovered that a bill of sale had been executed by the defendant for the purposes aforesaid.

All this matter was brought to the attention of the judge who tried the case, and, after full deliberation and consideration of all the new matter brought forward by the plaintiffs, he refused to give a new trial, and, being competent to decide, his adjudication must be final. In this point of view the bill cannot be supported, if an appeal to this Court for a new trial had been proper, since the court of law was entirely competent to grant it. Fentress v. Robbins, 4 N.C. 610. For although the bill says the alleged combination to suppress and keep secret the fact that the bill of sale was executed and that the purpose of its execution was to enable Grier to run the negroes out of the State was not discovered until after the trial, it does not allege that those facts were not discovered until after the expiration of the term, so that the judge at law had no power to act on the case in that point of view, but, on the contrary, the answer shows that the question was presented to the judge, that he gave a day for the production of the witness Cunningham, and refused upon a consideration of all the facts to grant a new trial. This Court is not authorized to say whether his decision was right or wrong. This Court cannot review the decision of a court of law upon a question addressed to its discretion, from which there is no (268) appeal, for the same reason that they cannot review a question of law from which there is an appeal. It is only for some new matter, not known to the party whilst the court of law had the case in its power, that this Court has ever interfered, and then not for matter to repel the charge, by opposing proof, but such as destroys his proof. Peagram v. King,9 N.C. 297. Although there is an allegation that Grier did not swear truly, it is not alleged how it can be shown that he swore falsely. The answer supports him in this. He was not present when the bill of sale was executed, and of course did not know, of his own knowledge, whether the defendant had executed the bill of sale or not, and the answer positively denies that there was any combination between the defendant and Grier to suppress the fact. It is true, the defendant, on the trial at law, refused to admit the execution of the bill of sale. She was under no legal obligation to admit it, and there is no allegation that the plaintiffs were surprised in consequence of her having agreed to admit it and then refusing; but even this was a matter for the consideration of the judge on the motion for a new trial.

It is suggested that, as the plaintiffs could not have made a defense at law, upon the proof of all their allegations, inasmuch as the forfeiture of the life estate was not annexed to the title of the slaves, but was inserted by way of condition to a penal bond, that this Court will give relief on the ground that the plaintiff had no defense at law, and the defendant is availing herself of a legal advantage.

The bill was not framed with this aspect, and therefore the question is not fairly presented; but suppose it was, this Court will never aid to enforce a condition by which a vested estate is to be defeated or a forfeiture incurred, but will only grant relief by requiring the party to pay damages and restraining a further breach. If the party provides (269) for himself a legal condition, annexed to the estate, whereby to defeat it at law, a court of equity will nevertheless relieve against a forfeiture or a breach of the condition by decreeing that the bond shall be satisfied or the condition saved by the payment of the damage. Even this relief against conditions by which estates are defeated can only be given when the conveyance is made to secure a debt by way of mortgage, but it never has been known that, where the party has failed to secure himself by a condition annexed to the estate, so that it may be avoided at law, equity will lend its aid to enforce a condition and defeat an estate for which a valuable consideration was paid. Equity gives redress for the damage really sustained, and will not enforce pains, penalties, forfeitures, or conditions, and will in most cases restrain the party from enforcing them.

In this case the plaintiffs, if any injury has been sustained, have, by the penal bond of $350, as full redress as they stipulated, for the price of $350 for a life estate in a negro girl of 17 years of age was exorbitant. There is no error in the interlocutory order in the court below.

PER CURIAM. Affirmed.

Cited: Stockton v. Briggs, 58 N.C. 314; Carson v. Dellinger, 90 N.C. 230;Simmons v. Mann, 92 N.C. 17.