Citation Numbers: 46 Ky. 133
Judges: Jtjd, Marshall
Filed Date: 10/14/1846
Status: Precedential
Modified Date: 7/24/2022
delivered the opinion of the Court.
In January, 1833, Stephen Beard executed to E. Basye, a writing whereby be did “agree, bind and oblige himself to E. Basye for all loss, damages, trouble and expense that he may sustain or be at, provided there ever should suit be brought against him by Mary B. McDonald, or J. L. McGee, or their heirs, for any negroes that he may hereafter purchase from Joshua McDonald ; and also bound himself to attend to and settle the present compromise, and to attend ail other suits that may be brought (against) him for any negroes so purchased.” It may be assumed, that shortly after the date of this writing, and upon the faith of it, Basye purchased from Joshua McDonald, six negroes, at the aggregate price of about $1,900; that Beard and McDonald having removed soon after to the State of Indiana, McDonald died there in the year 1833 or early in 1834. After which his widow, Mary.B. McDonald, brought an action of detinue against Basye, for. five of the six slaves which he had thus purchased, and also an action against Bryant Sloan for the sixth one, which had been sold to him by Basye. In 1833, while these suits were pending, Basye filed this bill against the representatives of Beard and others, to secure the indemnity promised in the writing above set forth, by attaching certain debts due to Beard’s estate by persons residing in Kentucky. He alledges that he had paid $300 to Beard, and $400 to McDonald’s legatee, and that his notes for $1,224, the residue of the price of the negroes, were still outstanding. He also alledges, that he is apprehensive
.Beard’s executor, in answer, produced the three notes referred to, set out the claims of Joshua and Mary B. McDonald to the negroes, alledged the invalidity of Mrs. McDonald’s claim, and charged that the judgment in detinue was obtained fraudulently by a collusive compromise between Basye and the attorney for the plaintiff, and that the verdict was rendered solely on the ground of this compromise, and not as the result of any investigation or decision by the jury. The answer as to these matters, is made a cross bill, to which Basye responds, denying the alledged fraud, and maintaining the validity of Mrs. McDonald’s tilte, but admitting that there was a compromise, embracing the value of the slaves to be assessed by the verdict, and also providing that the plaintiff should recover neither hire nor costs. But he denies that any fact was admitted essential to the establishment of the plaintiff’s title. And he alledges that the compromise was advantageous to Beard’s estate, by placing a less value on the slaves than could have been proved, and by excluding from the recovery the plaintiff’s costs. He also relies upon the fact, that Beard was notified of the suit, and bound to defend it, and that he did in his lifetime employ an attorney to aid in the defence, and says that the executor of Beard, though having full knowledge of the suit, not coming forward to-his assistance, he did agree as to the value, hire and costs, and to make no further defence than was requisite to put the plaintiff on the proof of her right, and to secure him in his recourse, and he avers that the plaintiff’s title was good.
Upon final hearing, the Court decreed the re-payment by Beard’s executor, of the $700 which had been paid, with interest from the date of the recovery in detinue, also the cancelment of the three notes remaining unpaid, and the payment of $200, the fee paid to the attorney in the action of detinue, in addition to his legal costs in that suit, and appropriated to the satisfaction of the decree so much of the attached funds as remained in the hands’of the receiver, reciting that two sums specified as part thereof, had been paid over by him to the executor of Beard.
The errors assigned by Beard’s executor, question the correctness of every part of this decree. But the principal questions in the case, relate to the title of Mrs. McDonald, and the effect of the judgment in the action of detinue.
It appears, that before her marriage with Joshua McDonald, Mrs. McDonald was a widow, residing in the State of Louisiana, where her first husband had died, leaving her the owner of a considerable estate, in slaves and personalty; that in the year 1825, she married McDonald, who had no estate, and who, when he had become fully possessed of hers, persuaded her to come with him to Kentucky, under the promise that if she should be dissatisfied, he would take her and her property back to Louisiana ; and also, as she says, that there should be no change in the ownership of the property. This removal to Kentucky took place about the year 1826, and in May, 1829, Mrs. McDonald filed her bill in the Circuit Court of Spencer county, alledging ill treatment in various ways by her husband, and a waste of her property, and praying for a divorce, and for a restoration of all her property, to which, as she alledged, she remained entitled by the laws of Louisiana, notwithstanding her marliage. At an early stage of this suit, an interlocutory order was made, directing one third of the slaves and land in the bill mentioned, (the land having been purchased with the funds derived from the wife’s estate,) to be assigned to Mrs. McDonald. Under this order seven slaves were slotted to Mrs. McDonald, on giving bond to have them forthcoming to answer the decree of the Court, and
In December, 1832, a writing was executed by persons professing to be the authorized agents of McDonald and wife respectively, which purported to compromise this suit by a relinquishment on the part of the husband, of all claim to the seven slaves which had been allotted to the wife,'and which are stated in the instrument to have been owned by her prior to her last marriage, and to have belonged to her in her own right, under the laws of Louisiana, and by the will of her husband; and McDonald was also to pay to her the sum of $250, which when paid, was to be in full of all claim to dower, alimony or in her own right, which she had or might ever have in the estate of McDonald, who on his part, relinquished all claim, present or future, to the above mentioned property, and to all which his wife might thereafter acquire; and by the instrument Mrs. McDonald receives this provision in full of all claim, &c., and relinquishes all claim of dower; and in fee to the tract of land above mentioned, and also to fifteen slaves by name, all of whom were in fact, justas much her property as the seven that she retained. And it was further stipulated that the agreement should be entered as the decree of the Court whenever the $250 should be paid, &c.
On the 8th of January, 1833, an additional agreement was executed by the same parties, by which the $250 were released, and in lieu thereof McDonald relinquished to his wife 45 acres of land, being the one third which had been allotted to her under the interlocutory order, and she was to pay him $63 79, and this alteration was to be incorporated and made a part of the first agreement.
This is the compromise which Beard undertook to attend to and settle in the indemnifying bond, dated a few days after this last agreement, and on which the present suit was founded. But although placed among the papers of the suit to which it relates, it never was made the decree of the Court, and has received no judicial sanction.
The six slaves sold by McDonald to Basye, and to which Beard’s promise of indemnity or guaranty is understood to relate, are a part of the fifteen named in this compromise, and relinquished to McDonald; and except Jacob, who was sold by Basye to B. Sloan, are a part of of the fourteen which had been allotted to McDonald, or left with him under the interlocutory order. Beard’s executor denying that Mrs. McDonald ever had title to the slaves in Kentucky, except under the compromise, relies ■upon that instrument as having transferred to her husband and extinguished in her, whatever right she may have had in any except those relinquished to her. It is contended on the other hand, that she did not lose her property in the slaves by her removal with her husband to Kentucky, and that the alledged compromise was imposed upon her by fraud, and was otherwise ineffectual to divest her of her right.
It is manifest from the articles of the civil code of Louisiana, 2,314 and 2,315, which are incorporated into this record, that the slaves in question having been the property of Mrs. McDonald before and at the time of her marriage, did not, by the marriage, vest in her husband, but remained her separate property of the class denominated dotal. Article 2,399, authorizes the wife to “petition against the husband for a separation of property whenever her dowry is in danger from his mismanagement or otherwise, or when the disorder of his affairs induces the belief that his estate will not be sufficient to meet her claims.” By article 2,401, “separation of property must be petitioned for and ordered by a Court of Justice, after hearing all parties. It can, in no case, be referred to arbitration. Every voluntary separation of property is null and void, as it respects third persons, and the husband and wife between themselves.” And by article 2,410, “the wife separated in person andproperly or in property only, has again the free administration of her estate. She may dispose of her movables,” &c.
Whatever might have been the effect of a decree eni. bodying this compromise, (and even such a decree might have been set aside in equity, if fraudulently procured,) the agreement referred to derives no force or sanctity from having been made in relation to a judicial proceeding, or from having been filed among the papers of a pending suit. There never was any judicial action upon it. Nor does it appear to have produced any effect upon the conduct of the suit, at least none prejudicial to the rights of McDonald, It stands as a mere private agreement between husband and wife by their professed agents, relating to their mutual claims upon the property. As such it was liable to be impeached in the action of detinue as it is also in this suit, on the ground of the incompetency of Mrs. McDonald, or want of authority in her agent, or wantof mulualityof obligation, or on the ground of fraud against her. Testing its efficacy by the facts and with a view to these objections we are of opinion that it must be regarded as wholly ineffectual both at law and in equity, to divest Mrs, McDonald of her title.
1. There is no evidence of authority in the person professing to act as the agent of McDonald, except in the acquiescence of the principal in an arrangement by which two thirds of his wife’s property was vested absolutely in him. 2. The agent of Mrs. McDonald, though author, ized to conduct the suit, had at the time-of the compromise, no color of authority to alienate her title; and although she afterwards made her mark to an instrument importing a ratification of what he had done in compromising the suit, there is, in the instrument executed by her, no specification of the terms of the compromise, and nothing to indicate that she was thereby deprived of all claim, future as well as present, upon the slaves which had been left in her husband’s possession. Her inability to read writing, the tenacity with which, in her amended bills and affidavits, up to a period but little anterior to the execution of the first agreement of compromise, she main
But supposing the agreement to have been executed by the husband and wife in person, then as a private agreement for the separation of the wife’s property from that of the husband, before a final bearing of the suit, and without the sanction of the Judge, it was null and void, both as to themselves and as to strangers, by the denunciation of article 2,401 of the Louisiana code, if it is to be tested by that code. As an agreement between them for a division of the wife’s property alone, before a legal separation of person or property, it comes within the spirit if not within the letter of the same denunciation. And in either of these aspects, it is denounced as void by the
We are of opinion, therefore•, that Mrs. McDonald was not divested of her title or interest in these slaves, either by the sale made of them by her husband, or by her own act in making or ratifying the compromise under which his sale is attempted to be sustained. And we are thus brought to the very important question, whether by the removal of McDonald and wife to Kentucky, the right of the latter to the slaves, which notwithstanding her marriage, continued, by the laws of Louisiana, to be her property, became under the operation of our laws,
Most assuredly we should be quite certain that there is something in the laws or policy of Kentucky, deciding this question peremptorily and unequivocally in the affirmative, before we would be authorized to determine, that by the removal to Kentucky of a husband and wife with property which belonged to the wife at the place of their marriage and former residence, and until they entered Kentucky, the property became at once, either in virtue of her consent to the change of domicil, however obtained, or in virtue of the actual change, whether with or without her consent, absolutely lost to her, and absolutely transferred to her husband. For the principle which would place so unjust a power in'the hands of the husband, and present to the wife so cruel an alternative, we are referred, not to any specific law or policy prohibiting the wife from having a separate interest or property in personalty or slaves, but to the general laws regulating the marital relation and rights, and to the general fact or principle, consequent upon those laws, that the wife does not and cannot hold in her own right, the absolute properly in personal effects. Our law is, that the marriage is an absolute gift or transfer of all the personalty then belonging to the wife, and of all that is afterwards during the coverture transferred to her. What she has at the marriage, becomes by the marriage, the property of the husband, and what she acquires afterwards is also his by virtue of the marriage and the law. Our statute makes substantially the same regulation with regard to slaves, vesting such as belonged to the wife, at the marriage, in the husband, and also such as come to her dur
The laws of Louisiana cannot, it is true, be brought hereto create a right, nor to regulate the mode of its exercise or assertion, and certainly not to establish a right in contravention of our laws or policy, and to the injury
But such a separation of the beneficial use from the ¡title, though in favor of the wife, and even to the exclusion ■of the husband, is not prohibited either by the letter or ■the policy of our laws. On the.contrary, such provisions for the separate use of the wife, are frequent, and whether .made at home or abroad, are uniformly sustained by our «Courts, if made in good faith, and so manifested to the ■world by registration, as not to become the instrument of ¡injury to others.
Under the operation of the principle that the legal title ■of the'wife vests in the husband, but that a separate use ■or interest declared in her favor, may be valid and will be •sustained, it has been decided that-if a chattel-be bequeathed to the -wife in terms clearly indicating that she is to have a -separate property or interest in it, the husband will take the legal title as trustee of the wife, and that the Court will, if necessary, appoint a trustee to se•cure her interest, it has also been decided that if a feme •conveys her property before marriage, to a trustee for her •own separate use, -&c., free from her intended husband, the title will revert when the purposes of the trust are •completely and certainly accomplished and at an end, •and that she or her representatives may maintain an action at law upon it; and it is well settled that the purcha
Why then, and upon what principle of law or policy, we again ask, was Mrs. McDonald divested of all interest in these slaves by her removal with her husband into this State? Was she deprived of a vested right without contract, without fraud, and without crime, merely by subjecting herself and property to our laws? There was no conflict of laws in regard to the reservation to her of an interest in her property at the time of her marriage ; and her removal to Kentucky certainly gave no retroactive operation to our laws, by which her interest was unsettled from the beginning. She came here unquestionably with a vested right and interest, and the question is as to the effect of our laws upon that interest. The broadest inhibition of our law declares at most, that she shall not or cannot hold the legal title for her own benefit. But there is no prohibition against the. property being held either by her husband or another, in trust for her benefit. If then her pre-existing right was at all affected by her coming here, would it not be more consonant with justice and analogy to say, that it was modified rather than destroyed, and that if her husband became invested with the legal title by virtue of our laws, he took it in trust for the benefit of his wife, or the joint benefit of both ? But even the laws of Louisiana, (in which perhaps the distinction between the legal and equitable title may be un„ known,) are not necessarily to be understood as reserving to the wife what we would consider the legal title, since the administration and management, and ostensible control and possession would seem to be in the husband, until a separation takes place. If those laws had expressly declared that the husband should hold the dotal property of the wife, as trustee for the joint benefit, until separation of persons or property, on which it should revert absolutely to the wife, there would have been no conflict either between the laws of Louisiana and those of Kentucky, in their operation on the same subject, or between these latter laws and the right of Mrs. McDonald, as existing before she came to this State, and afterwards asserted here. If on the other hand, the laws of Louisi
In coming to this conclusion, we have not thought it necessary to refer to the various and conflicting opinions which are copiously cited by Judge Story, in the sixth chapter of his work on- the conflict of laws. It would be difficult indeed, to deduce, either from the conflicting authorities there referred to, or from the reasoning or any indication of opinion by the author himself, a satisfactory conclusion- with regard to- the law applicable to the question which we have been discussing. But in an extract-from- Burge’s-Commentaries on colonial and foreign laws,&c., contained in note 3-to section 187, (4) page 161, 24 edition, we understand the doctrine to be maintained, that independently of the theory of a tacit 'contract between the parties at the time of their marriage, adopting-the law of the matrimonial domicil, (with regard to which' there is much diversity of opinion,} that law should, in> ease of a subsequent change of domicil, jegulate the rights of the parties in property held before the change.We confess, however, that after such examination and reflection as we have been able to bestow upon- the subject, we find the general question involved in- great uncertainty, and so far as opinions are concerned, in no little-confusion.- We, therefore, restrict the conclusion which has been staled, to the particular circumstances of this case, including not only those under which Mrs.McDonald was induced to' come to Kentucky, and the pendency of her suit for a divorce and restoration of her property when Basye made his purchase, but also the fact that her husband removed shortly afterwards, to the State-of Indiana, where he died, and that before his death she-bad returned, permanently, to Louisiana, and thus evin
Upon looking into the record of the action against Basye, we find the facts on which the plaintiff’s right of recovery depended, substantially made out in proof. The defences which as Beard’s executor now alledges, might and ought to have been made on the ground of the compromise, and the sale by McDonald, would have been unavailing. And as Beard’s executor, though he had notice of the pendency of the action, (as Beard himself probably had in his lifetime,) did not come in aid of the defence, which he was bound to do by the covenant, we are of opinion that Basye was not bound to make an unavailing resistance; and that he has not lost his recourse, by failing to make defence further than to put the plaintiff on-the proof of her title, and especially as his title might perhaps have been secured, if Beard had attended to the compromise, and had it made the decree of the Court. If there had been no compromise in the action of detinue, and the jury had found a verdict on their own consideration of the evidence, we should have regarded the judgment as evidence not only of eviction, but also of the paramount title of Mrs. McDonald. But the verdict having in effect been rendered by agreement of the counsel, on their judgment of the evidence, and under a compromise as to the amount of the recovery, we consider the judgment as evidence of eviction only, leaving the question of title to be contested and decided in this suit. Indeed it is not wdthout some hesitation, that we have come to the conclusion that the judgment should even be deemed effective as evidence of actual eviction. It is only upon the ground that Beard’s executor had notice of the action, and should have defended it, that the compromise by Basye can be at all justified, or that the judgment founded on it can be regarded as valid for any purpose against the executor.
Basye purchased the slaves with notice of Mrs. McDonald’s claim, and he might not perhaps be entitled ,to recover on Beard’s agreement to indemnify him, if there were ground for inferring that he was engaged in a fraudulent scheme for defeating her right. But he alledges that
We have had some difficulty in determining whether va'ue ^ve s^aves as assessed in the verdict and judgment against Basye, should form the criterion of his recovery upon the covenant of indemnity. The verdict having been founded on the agreement of the parties, is no evidence as against others, of the actual value of the five slaves at the time of its rendition. And as five only were recovered, the original price of the six in Basye’s Purchase, does not furnish a proper criterion of indemnity for the five. But he alledges, and there is no evidence to the contrary, that the value assessed was in fact less than the value which might have been proved, and there is enough besides in the case, to authorize the presumption that the five slaves recovered had increased in value after the date of Basye’s purchase. If under the broad terms of Beard’s covenant of indemnity, he was bound for the value of the slaves at the time of the loss, it should perhaps be assumed, upon the whole case, that the five which were recovered in the action of detinue, were not valued too high in the verdict.
If on the other hand, the price of the slaves in Basye’s purchase from McDonald, should form the criterion of indemnity for the loss of any of them, then although it is evident that the price recovered by Mrs. McDonald did not in that purchase cost $1,900, which was the contract price of the six ; yetas she had an action pending in the same Court for the sixth, against Basye’s vendee, in which she had presumably the same right to recover as in the action against Basye for the five, and as the action for the sixth was in fact dismissed by her at the term succeeding that at which she recovered the five, it may be inferred that the compromise was intended to protect, not only the right of Basye to the five for which he was sued, but also that of his vendee to the sixth, for which an action was pending against him; that Basye, in effect, agreed to pay to Mrs. McDonald for all the slaves, the same price which he had agreed to pay her
With regard to the sum of $200, decreed on account of the fee paid by Basye to the attorney who defended the action of detinue, it is immaterial whether Beard was ever bound directly for it or not. There is no dispute that Bayse defended the action for some time, with vigor and at considerable expense and trouble, and that he had an attorney who attended to the defence. It is proved that the fee promised and afterwards paid by Basye, was $200, which is not shown to have been unreasonable. He, therefore, had a right to recover that sum ; and as there is enough in the record to sustain the recital in the decree, that certain specified sums, part of the attached fund, had been paid over to Beard’s executor, the decree is not erroneous in this respect, and is, therefore, in all its parts, affirmed.