Embry v. Morrison , 1 Tenn. Ch. R. 434 ( 1873 )

The Chancellor :

On tbe 23d day of November, 1864, tbe defendant sold to tbe complainant, then a slave, tbe property of B. Embry, a bouse and lot in Nashville, and by deed of that date conveyed tbe lot to him. Tbe consideration of tbe sale was tbe sum of $2,800, of wbicb $1,000 were paid in casb by tbe complainant at tbe time, and tbe residue secured by bis four several notes of that date, at 6, 12, 18 and 24 months, with interest. ‘ Tbe complainant afterwards paid tbe first of these notes, and made three payments on tbe second note, amounting in all to $190, tbe last payment being made on tbe 13th of March, 1867. On tbe 30th of July, 1867, this bill was filed to be relieved from' this contract on various grounds. Tbe defendant answered, and proof has been taken on both sides.

I am relieved from tbe necessity of investigating tbe questions raised by tbe pleadings and proof, and which have been argued by counsel, by tbe fact wbicb is admitted in tbe answer, and distinctly proved that tbe complainant was, on tbe 23d of November, 1864, and so continued until slaves were legally emancipated in this state, a slave, tbe property of B. Embry. No principle of law is better settled in this state than that a slave has no power to make a contract, unless it be a contract for bis freedom, an exception in favorem liber-tatis, wbicb proves tbe general rule. Pulse v. State, 5 Hum. 108; Jenkins v. Brown, 6 Hum. 299; Bedford, Trustee, v. Williams, 5 Cold. 202. See Hall’s case, 9 Court of Claims.

Tbe contract of sale was, therefore, absolutely void. But it does not follow, as tbe learned counsel of tbe defendant seems to think, that tbe complainant is not entitled to recover tbe money paid by bim on this void contract, or that tbe title to tbe property conveyed is thereby re-vested in the defendant. It is true that the money which was paid belonged by law to B. Embry, the master, and that the title to the property conveyed in legal contemplation vested in the master also. University v. Carabreling, 6 Yer. 84; Jenkins v. Brown, 6 Hum. 302. But it is well settled that if the master at the time recognize the right of the slave to money or property received by, or made payable to or for the latter, and the slave is afterwards emancipated, his freedom by relation will be held to extend to the time when the right first accrued. Lewis v. Simonton, 8 Hum. 185, 191; Jenkins v. Brown, 6 Hum. 299; Bedford v. Williams, 5 Cold. 207.

The complainant is, therefore, entitled to have his notes cancelled and delivered up to him, and to recover the purchase-money paid by him, and, in analogy to the rights of parties under parol sales of land void by the statute of frauds, to have the same declared a lien upon the land until paid. The complainant will also be entitled to the value of any permanent improvements put upon the lot before the filing of his bill to the extent to which such improvements have enhanced the value of the realty, and to a credit for taxes and necessary repairs 23aid, and must account for rent U|3 to the surrender of the jircperty. The complainant will also 23ay the costs which have heretofore accrued. Other costs to be hereafter adjudged.

Note. — This decision was affirmed upon appeal.