Paschal v. Davis , 3 Ga. 256 ( 1847 )

By the Court.

Warner, J.,

delivering the opinion.

On the trial of this cause in the Court below, these exceptions were taken to the charge of the Court to the jury, which are now assigned for error here. First. Because the Court charged the jury on an assumption of facts, which plaintiff’s counsel insists were not in proof, to wit, that the jury might look into the facts, to ascertain whether Mildred Carlton, the widow of the deceased, had not appropriated the negro to her own use, as 'a portion of her distributive share of the estate of her deceased husband ; and whether she did not, as such distributee, dispose of said negro to the defendant, when plaintiff’s counsel insists there was no evidence direct or presumptive that there had been a distribution.

The defendant claims the negro under a purchase from Mildred Carlton, who was the widow and distributee of Spencer Carlton. The plaintiff claims title to the negro as administrator de bonis non of Spencer Carlton, insisting that the negro is still the property of Spencer Carlton’s estate, and has never been duly administered.

The .Court below charged the jury that they might look into the facts, to ascertain whether there had been a distribution of the negro to Mildred Carlton, and whether she did not as such distributee sell the negro to defendant.

The charge of the Court assumes that there were some facts in [1.] evidence relative to distribution, or why direct the jury to consider them ? If there was no evidence as to the question of distribution of the negro to Mildred Carlton, then we think the Court erred in submitting that question to the consideration of the jury; for it authorized them to indulge a presumption not warranted by the evidence. Harris vs. Wilson, 1 Wend. R. 511.

In Harris vs. Wilson, Sutherland delivering the judgment of the Court, says : “ I think the judge erred in submitting it to the jury to determine, upon the evidence bfore them, whether the note had not been paid or satisfied by some arrangement between the parties previous to the arbitration. There was no evidencefrom which any such conclusion could legitimately be drawn.”

We are not able to discover from the record in this case, any evidence going to show there had been a distribution-oí the negro to Mildred Carlton, or which would authorize the jury, under the law, to presume it. Where there is any evidence, although it may be weah, the jury are unquestionably the proper judges of it, and it should be submitted to their consideration : but where there was no evidence to establish the fact of distribution, as in this case, we are of the opinion it was error to have submitted to the jury for their consideration, that which did not exist, as calling their attention to its consideration seemed to imply that, in the opinion of the Court, there was some evidence on that point which it would be proper for them to consider.

The second ground of error assigned to the charge of the [2.] Court below is, that' “the Court erred in charging the jury, that the plaintiff, as administrator de bonis non, could not claim or receive anything but those goods, chattels*rights and credits which remained in specie in the hands of the former administrator, unadministered, and are capable of being identified as the property of the first testator or intestate when plaintiff’s counsel insisted that there could be no administration of land and negroes of the intestate, without an order of court for the sale, so as to place it out of the power of the administrator de bonis non to receive- them. It does not appear from the record that the Court below was requested to charge the jury that there could be no administration of land and negroes in this State without an order of court, or that tb,e Court expressed any opinion on that subject to the jury. We are to review the charge of the Court as given to the jury;. for there is no exception that the Court refused to charge the jury on the subject of the order for the sale of the negro. Were the instructions given by the Court to the jury correct as to the law 1 We think they were, and come fully within the rule established by this Court in Thomas vs. Hardwick, 1 Kelly R. 80. Whether an order of the Court of Ordinary was necessary to change the character of the •property, so as to constitute an administration according to law, the Court below did rrot decide ; that Court instructed the jury what property of the intestate the administrator de bonis non was entitled to recover, which instructions, in our judgment, were properly given to the jury.

The third ground of error is, because the Court erred in [3.[ charging the jury, that the title and possession of the negro by the defendant, became adverse from the time of the sale to him by Mildred) Carlton.

It appears from the record, that the negro James was the property of Spencer Carlton, at the time of his death ; that he died in 1822; and in 1823, his widow, Mildred Carlton, took out letters of administration on his estate. On the 9th December, 1834, Mildred Carlton, in her individual capacity, executed a bill of sale to the defendant for the negro James, for the consideration of six hundred dollars, who has had the possession of him ever since, claiming him as his own property. In the year 1843, the plaintiff, Paschal, took out letters of administration de bonis non, on the estate of Spencer Carlton; and on the 16th November, 1844, instituted his action of trover to recover the possession of the negro from the defendant, who pleads 'the statute of limitations. The plaintiff claims the negro as belonging to the estate of Spencer Carlton. Was the possession of the defendant, under his purchase from Mildred Carlton, in 1834, adverse to the title of the plaintiff? We are of the opinion, that the possession of the defendant was adverse to the title of the representative of Spencer Carlton’s estate, and that the Court below instructed the jury correctly on that point.

The sale was made by Mrs. Mildred Carlton, who had possession of the negro, to the defendant, for six hundred dollars.

The question is not now, whether Mildred Carlton, as the administratrix of Spencer Carlton, could have recovered the negro froni the defendant as part of Spencer Carlton’s estate, at any time within four years after the sale; if it was, we should be1 of the opinion that she might have done so; but the question now is, whether the representative’of Spencer Carlton’s estate is not barred by the statute of limitations from recovering the possession of the negro from the defendant. It is true, the sale was made to the defendant by Mildred Carlton; and it is also true, that Mildred Carlton was the legal representative of Spencer Carlton’s estate ; but the sale was not made by her as administratrix, it was made by her in her individual capacity; and the possession of the defendant was advene to her title as administratrix, from the time of the sale in 1834. In Liptrot, adm’r. vs. Holmes, 1 Kelly R. 391, we said: “ The action of trover being founded on a conjunct right of property and possession, any act of the defendant which negatives or is inconsistent with such right, amounts in law to a conversion.” The purchase of the negro by the defendant, from Mrs. Carlton, as her individual property, taking possession and exercising dominion over him as his own property, negatived, and was inconsistent with the title of Mrs. Carlton, as the administratrix of Spencer Carlton’s estate; and the statute commenced running against the legal representative of that estate, from that time, in favour of the defendant. The'contract made by Mrs. Carlton with the defendant, for the sale of the negro, was binding on her in her individual capacity, but was not binding on her as the administratrix of Spencer Carlton’s estate. An administrator cannot bind the estate which he represents, by his contract. Toller Ex. 133, 134; O'Neal vs. Abney, 2 Bailey R. 317; Plant vs. McEwen, 4 Conn. R. 544; Doe, ex dem. of Hornby vs. Glenn, 28 Eng. C. L. R. 33. At the time of the purchase of the negro by the defendant, the estate of Spencer Carlton was represented by Mrs. Carlton, and she could have instituted her action as such representative for the recovery of the negro, and if she has failed to discharge her' duty in that regard, or has injured the estate by negligence or malfeasance, the persons interested in the estate have their remedy.

It has been urged by the counsel for the plaintiff in error, that inasmuch as the defendant purchased the negro of Mrs. Carlton, the trustee, with knowledge thathe was purchasing trust property, the statute of limitations does not run, and cites the case of Boteler vs. Allington, 3 Atk. R. 459. That was a case in equity. In cases of fraud, courts of equity will sometimes hold, the conscience of the party being so affected, that he ought not to be allowed to avail himself of length of time ; but in courts of law that principle does not, in our judgment, apply. Whether the statute will run in a court of law in cases of fraud, where; there has been a concealment of the fraud, the authorities are somewhat in conflict; but there was no concealment here. If the sale was fraudulent as between Mrs. Carleton and the defendant, the fraud was known to her as the representative of Spencer Carlton’s estate.

• By our statute of limitations, actions of trover are to be commenced within four years next after the' cause of such actions, and not after'. Prince 575.

In Troup vs. Smith, 20 Johns. R. 47, Chief Justice Spencer, after pointing out the distinction between the plea of the statute of limitations in a court of law and a court of equity says : “ But courts of law are expressly bound by the statute; it relates to specified actions, and it declares that such actions shall be commenced and sued within six years next after the cause of such actions accrued, and not after; thus not only affirmatively declaring within what time these suits are to be brought, but inhibiting their being brought after that period. I know of no dispensing power which courts of law possess, arising from any cause whatever; and it seems to me, that where the legislature in the same statute gives an extension of time, in cases of the arrest or reversal of judgment, in cases of infancy, coverture of the feme, insanity, and imprisonment, and for an absence of the defendant out of the State when the cause of action accrued, that it would be an assumption of legislative authority to introduce any other proviso. The plaintiff’s case may be a very .hard one, but that affords no reason for construing away a statute of great public benefit, and which in many cases is a shield against antiquated and stale demands.” In Troup vs. Smith it was held, that concealment of the fraud until within six years, would not prevent the operation of the statute, for the very satisfactory reasons expressed by the chief justice in delivering the opinion of the Court. Miles vs. Berry, 1 Hill S. C. R. 296; Gregg vs. Bigham, id. 299. In Gregg vs. Bigham, it was held, that four years exclusive and adverse possession of personal property would give title under the statute of limitations, although the possession commenced infraud. "We think it is the duty of courts of justice to give such a construction to the statute of limitations as will prevent the mischief which that statute was intended to remedy, and not to create exceptions to its operation where the legislature has not created them. The view taken by Mr. Justice Story, of this statute, in delivering the opinion of the Court in Bell vs. Morrison, 1 Peters R. 360, meets with our entire approbation. He says : “ It has often been matter of regret in modern times, that in the construction of the statute of limitations, the decisions had not proceeded upon principles better adapted to carry into effect the real objects of the statute ; that instead of being received in an unfavourable light, as an unjust and discreditable defence, it had received such support as would have made it what it was intended to be, emphatically a statute of repose. It is a wise and beneficial law, not designed merely to raise a presumption of payment of a just debt from lapse of time, but to afford security against stale demands, after the true state of the transaction may have been forgotten, or be incapable of explanation, by reason of the death or removal of witnesses. It has a manifest tendency to produce speedy settlements of accounts, and to suppress those prejudices which mny.rise up at a distance of time, and baffle every honest effort to counteract or overcome them.”

If we were to make the purchase of the negro by the defendant from Mrs. Carleton an exception to the operation of the statute, we should do that which the legislature have not thought proper to do, and to that extent virtually repeal it.

The following cases establish the principle, that the possession of slaves for a period analagous to that fixed by the statute of limitations, under a claim of title, not only operates to bar an action, but also to invest the "possessor with the .absolute property. Sims vs. Canfield, 2 Ala. R. new series, 561; Brent vs. Chapman, 5 Cranch 358; Goodman vs. Munks, 8 Por. R. 94; Doyle vs. Bouler, 7. Ala. R. n. s. 246.

The judgment of the Court below for the defendant was right, on the plea of the statute of limitations ; and we will not order a ■new trial on the first ground of error taken, as that could not have influenced the verdict of the jury on the plea of the statute.

Let the judgment of the Court below be affirmed.