Citation Numbers: 37 Ky. 394
Judges: Marshall
Filed Date: 12/11/1838
Status: Precedential
Modified Date: 7/29/2022
delivered the Opinion of the Court.
This was an action of trespass brought by Eliza, a woman of color, claiming to be free, against Tevis, by whom she was claimed and held as a slave.
To reverse a judgment rendered for the plaintiff, Tevis has appealed to this Court. And the principal questions now to be considered, are whether the Circuit Court erred in overruling the defendant’s motions — first, for a continuance; and, second, for a new trial.
It is necessary to a correct understanding of the grounds of each of these motions, that the principal facts proved on the trial should be stated.
The plaintiff claims her freedom under the will of Cloe Penn, who, about the year 1805, had come to Kentucky, bringing with her the negroes Nell and her daughter Nann, whom she claimed as her own, and continued to hold, claiming them and the after-born children of Nann, as her own, until her death in the early part of 1813. In May, 1813, her will emancipating Nell and Nann and the children of the latter then born, of whom the plaintiff was one, was duly proved and admitted to record in the Jefferson County Court. The executor named in the will assented to the freedom of the slaves, who went at large as free persons for about five years, during a great portion of which they lived in the State of Indiana, until about the year 1818, being alarmed by a rumor that they might be kidnapped there, they returned to Kentucky, and afterwards, in the year 1818 or 1819, were taken into possession by Tevis. Such was the plaintiff’s evidence; and it was obviously sufficient in the absence of other proof to establish her right of freedom.
Extracts from certain statutes of Maryland were also read by the defendant, and form a part of the record; from which it appears — first, that the slaves of a decedent in Maryland are, with other personal property to be included in the inventory by the executor or administrator, and to be assets in his hands; and, second, that if an intestate leave no child or descendant, but a widow, and brothers and sisters — as in the present case — the widow shall be entitled to one half of his estate, and the brothers and sisters to the other.
As to the cause of the separation between Penn and wife, one only of the defendant’s witnesses undertakes to speak, and she, in a direct answer to an interrogatory by the defendant, says, she understood Penn took to drink, and treated his wife badly.-
As to the manner and circumstances of the separation, several of the defendant’s witnesses say, she went off in the night with another man; but it does not appear that any of them had, or pretended to have, any personal knowledge of the circumstances, unless it be Penn’s brother-in-law, King; who, in answer to the question “ when and how she left her husband,” says — “ In or about the year 1805, she left him and went off in company with a certain William Stewart — they went, off in
The use of the word ‘ eloped’ by this witness, in answer to a second, and in regard to that word, a leading interrogatory, as to the manner of Mrs. Penn’s leaving her husband, proves nothing conclusive; and whatever unfavorable inference might arise from the mere fact, that she left her husband’s house in the night, with another man, may be repelled by the absence of all other proof, or even intimation, of any improper connection or intimacy between her and Stewart, either before she left Maryland, or after she arrived in Kentucky, and by the positive proof of her good character and piety while she lived in this State. It is to be remarked, however, that while it is not very clear that this witness arrived at the house of Penn before Mrs. Penn had left it, with a view of going off, it is evident that he was not sent for until after her determination to go off, and to carry Nell and Nann with her, was known to her husband. And it is a circumstance entitled to great weight, that while Penn sent for his brother-in-law, in order to have his aid in preventing the abduction of a horse, he neither expressed any solicitude, nor took any measures to prevent his wife either from going herself, or from taking with her the two slaves; nor did he suggest the slightest objection to either — although he seems to have anticipated that she was going to a distance; it is not an irrational mode of accounting for this circumstance, to suppose that, as he had caused, so he had consented to, the separation; and that he gave up the two negroes — perhaps by a valid
It further appears that, during about two years which elapsed from the separation until the death of Penn, although he sometimes talked of going to Kentucky in search of his wife, he not only made no attempt to retake the two slaves, but never spoke of them, nor in any manner indicated any design to reclaim them, or to separate them from his wife.
His administrator, who was appointed in 1808, and lived until 1823 or 1824, was alike silent and alike acquiescent. And his heirs, who would have been entitled to share these slaves and their increase with Mrs. Penn, if they were not absolutely hers, do not appear to have asserted, or suggested, any such claim during the life of Mrs. Penn, or for about five years after her death; nor does it seem probable, from any thing in this cause, that they would then or since have asserted any, had not the defendant — conceiving that Mrs. Penn’s title was insufficient to secure the freedom of the ne-groes whom she attempted to emancipate, and apprehending that they might be kidnapped — employed the agency of a person who was going to Maryland, to seek out the heirs of Penn, and purchase up their claim or interest in the negroes, for the joint benefit of himself and the agent. Transfers were accordingly obtained, in the early part of the year 1818, from six of the heirs resident in Maryland and Ohio, of their interest in the ne-groes, at the cost of about one hundred and sixty dollars; and Tevis having shortly afterwards, at the price of five hundred dollars, acquired the interest of the agent who had procured the transfer, he emancipated Nell and Nann and one of the children of the latter, and took possession of the rest as slaves. At that time Nann had
These facts tend to establish, and would authorize a jury to assume and act upon any presumption, not inconsistent with the direct evidence in the cause, which
These observations apply to the state of things existing at and before the time when Tevis took possession of the negroes, in 1818, under his purchase from a portion of Penn’s heirs. And, if instead of being enabled to gain the possession then by seizure, he had been compelled to resort to a suit, against a purchaser from Mrs. Penn, we think the presumptions which have been stated would have been sufficient to sustain a verdict or decree repelling his claim. And as the plaintiff has been held in slavery ever since, and was, moreover, an infant under twenty one years of age during a large portion of the interval from 1818 until the commencement of this action, it seems to us, that she is now entitled to the benefit of all the presumptions in favor of Mrs. Penn’s title, which might have been applied in support of a purchase from Mrs. Penn. If she was free then, she is free now. If the facts then and previously existing, as now proved in this cause, would have authorized a'verdict in favor of her freedom then, the same facts must be sufficient to sustain a similar verdict now, unless their effect has been repelled by other facts which have since occurred. Has any fact subsequently occurred which is entitled-to such an effect?
The first of them was not made until about twenty five years after the death of Penn, nor until sixteen years after his administrator in Maryland had paid all known debts, and had a balance of the personal estate left for distribution; nor until after these negroes had remained, for more than ten years, under the title of Mrs. Penn, who was one of the distributees, and for fourteen years in possession of Tevis, claiming them under other distri-butees. There is no pretence that new demands had appeared against Penn’s estate, or that any other circumstance had occurred which rendered it necessary or even proper to appoint an administrator here. And it is obviously to be inferred that administration was applied for, not because it was then requisite or proper that the negroes should be reduced to the condition of assets; but for the purpose of strengthening the title of the claimant under one set of distributees, against that of the claimants under another. The grant of administration, under the circumstances, furnishes no evidence that the negroes had not been distributed; and did not ipso facto withdraw the title from the distributees, under some of whom the possession had gone for twenty five yeai’s. The case, as to this question, is precisely the same as if Mrs. Penn had lived and continued in possession until 1832, and Tevis, claiming under the other dis-tributees, had then obtained letters of administration, as a means of gaining the possession. And it might as well be supposed that the title could be affected by the mere grant of administration at the end of one hundred years after the estate had been settled, all debts paid, and the distributees in possession, as that, at the end of twenty five years, and after the facts which had occurred, the grant of administration to Tevis, could affect the title,
It is not sufficient, however, that there was no error in the opinions of the Court in overruling the motion for a continuance, and in rejecting the evidence offered by the defendant; nor is it sufficient that the verdict was authorized by the evidence. If, in giving or refusing instructions, the Court committed any error by which the jury may have been misled, in giving effect to the evidence, the defendant was entitled to a new trial.
The real point of the issue was, whether the plaintiff
The Court also instructed the jury, on motion of the defendant, “ that, by the laws of Maryland, which govern the case, slaves are personal property,” and “that upon the death of an intestate, the title to them vests in his administrator, and that persons entitled to distribution cannot dispose of any particular slave, either by deed or will, till distribution is made, or partition of the slaves has ascertained to whom each particular slave shall belong in severalty.” The jury were also instructed, on motion of the defendant, “ that a wife separating from her husband, and living apart from him, unless legally divorced, did not enable her to acquire or hold personal property in her own right, during his life:” to which the Court added, “ that personal property may be held in trust for the wife during the life of her husband, and she may, in such case, have the use of it, and at her death, dispose of it without the control or consent of her husband.” It is objected that this qualification was calculated to mislead the jury, by directing their attention to a state of case which the evidence did not conduce to prove. We are of opinion, however, as before intimated, that the separate and undisturbed possession and claim of the slaves by Mrs. Penn, during the life of her husband and afterwards, conduced in some degree, to prove that she had, even during his life, some separate right to them in some mode. And therefore, we cannot say that the Court erred in qualifying the general negation of her right, by pointing out a mode by which it might exist, and which, although the presumption in favor of it may not be very strong, is not disproved by the evidence..
The first, fourth and fifth instructions asked for by the defendant, were overruled; but as the first, so far as it has any practical application to this case, is included in the first branch of that which has been just considered, and as it is, moreover, subject to the same quailification, the defendant was not prejudiced by its refusal. The fifth — which merely declares that the plaintiff’s color is presumptive evidence of slavery — has evidently no bearing on the question whether she belonged to Mrs. Penn, or to some other person.
And the fourth is objectionable in several particulars: first, because it assumes that, if Nell and Nann were the property of Penn when his wife left him, their children born after-wards were also his, which is not a necessary legal consequence, and especially as it does not appear that any children were born of Nell or Nann after the separation of Penn and wife, and before the death of the former. Second, because it excludes the presumption that Penn parted with his right in these slaves, for the use of his wife. And, third, because it seems to assume that there is no proof which would authorize the conclusion, that Mrs. Penn had acquired an exclusive property in the slaves before her death. For these reasons, and because the first instruction above stated as being given on motion of the defendant, included all that is material and correct in this, the Court did not err in refusing to give it.
We are of opinion, therefore, that the case having gone to the jury without prejudice to either party from the opinions of the Court, and the evidence having been such as to authorize the jury to find for the plaintiff — it was not the duty of the Circuit Court to grant a new trial. And this is not a case in which we should be justified in directing a new trial, in opposition to the opinion of the jury and the Circuit Court.
Wherefore, the judgment is affirmed.