Chew v. Beall

Eccleston, J., delivered the opinion of this court. This is an action of replevin, brought on the 24th of February 1857, by the appellee against the appellants, for two negro girls, Betty and Nelly. The defendants pleaded non cepit, property in themselves, property in a stranger, and limitations. The cause was tried upon issues joined on those pleas.

The facts, in regard to which there seems to be no controversy, aye the following: Aquila Beall, who died in the year 1840, was the husband .of the plaintiff; and in his life time, made a gift of two negro .slaves Eliza and Jenny, with their children and grand-children, ,to his daughter Amelia H. Beall, when she was quite young. Those negroes are now dead, but each of them had, at least, six children. Amelia intermarried with Leonard H. Chew, the defendants’ testator, in the year 1835. But, some four or five years before this marriage, she gave and delivered negro Maria, one of the children of the above named Jenny, to her mother, .the present plaintiff.

What follows is to be considered as a statement, taken from jthe evidence offered on the part of the plaintiff, but not conceded to be true, in all respects, by the defendants. Negro Maria, it is said, was given to the plaintiff for her sole and separate use; that in 1836, about a year after his marriage, L. H. Chew was about to sell the children of Maria, with other negroes, descendants of those originally given by Aquila Beall to his daughter Amelia, and Maria wishing to go with her children, the plaintiff was persuaded by Chew and wife, to take Jane and her child John in exchange for her sister Maria, in order that the latter might not be separated from her children. The plaintiff consented to the exchange, and Jane was delivered to her by Chew and wife, for the plaintiff’s sole and separate use, in lieu of and in exchange for Maria, who was delivered up to Chew and wife, and sold by them, with other negroes, to a Mr. Chew of Mississippi. The negroes now in dispute are the children of Jane, born after the exchauge, and have been brought up and claimed by the plaintiff as her property.

After L. H. Chew made sale pf the negroes, as above stated, his wife was permitted by hey ³⁵⁹ another to have the service of some of Jane’s children, but the hitter always claimed them as her property. The grounds on which the plaintiff bases her right to recover the negroes in contest, are, that negro Maria was given and delivered to her for her sole and separate use, by her daughter Amelia, who subsequently became the wife of L. H. Chew. That after the marriage, the plaintiff, at the instance and persuasion of Chew and wife, consented to exchange Maria for her sister Jane, who was thereupon delivered to the plaintiff for her sole and separate use, in lieu of Maria. That the negroes in dispute are the children of the said Jane, and were born after the exchange.

The defendants urge sundry objections to the plaintiff’s right to maiutaia the suit. They say, that Maria was not' given to her for her sole and separate use, but absolutely, and" she being then a fúme covert, the title vested in her husband. That conceding the gift to have been for her separate use, she' took only an equitable estate, the legal estate vesting in her husband as trustee, for her. And as her husband was living at the time of the alleged exchange, the plaintiff, without his concurrence, had no power or authority to sell, exchange or dispose of Maria, no proof having been produced, showing that, by the terms of the gift of Maria to the plaintiff, she was authorized to dispose of her.

This being so, the alleged exchange could pass no title, in Maria, to Chew and wife, and consequently Mrs. Beall acquired no title to jane, it is said, ’ moreover, that admitting she did become entitled to Jane by the exchange, it was merely an equitable title, the legal estate vesting in Mr Beall as trustee. And although he died in 1840, - yet the plaintiff has not such an estate in the negroes in dispute, as will enable her to maintain this action at law. Having presented some of the grounds taken by the re-' spective parties, we will now state our views in relation to the' same. There can be no doubt that, prior to our act of 1842, if a negro slave was given, absolutely, to a married woman, the' title would vest in the husband.

If, as contended by the plaintiff, she received a gift of Maria,' ³⁶⁰ for her sole and separate use, and the gift contained no restriction, upon the right of alienation or disposition, and no, particular mode of alienation or disposition was prescribed/and the alleged exchange of Maria for Jane, was made between the plaintiff and Chew and wife, in virtue of which, Maria was received by Chew and wife, and sold by him for the purpose of being taken to Mississippi, the title of the plaintiff to Jane or her children, born after the exchange, cannot be successfully resisted, upon the ground of a supposed want of authority in the plaintiff, to make the exchange. In reference to the authority of a feme covert, to dispose of personal property, given simply to her separate use, without restricting her'power of disposing of it, or prescribing the nnpde in which that power is to be exercised: See Hill on Trustees, 421, 425, (Ed. of 1854;) 1 Sandess on Uses and Trusts, 380, (Ed. of 1855;) Macqueen on Husband 7 Wife, in 66 Law Lib., top paging, 87, 94, 95. Cooke vs. Husbands, et al., 11 Md. Rep., 506 , is a case in equity, in which it was made a question, as to what was the effect of a deed executed by two married women, professing to dispose of property devised by their father, in trust, for their separate use. The trustee united in the deed but their husbands did not.

It was there said: “Following the decisions, which, under our institutions, it is the duty of this court to respect as authority, we are of opinion, that a feme covert may act in reference to her separate estate as a feme sole, where the settlement contains no limitation on the subject, on the principle that the jus disponendi accompanies the property, unless restrained in terms, or by the manifest intention of the instrument.” A parol gift of a negro slave if accompanied with delivery, is valid; and we are not aware of any principle, which, prior to our act of 1842, would prohibit a separate use, in such property, for a married woman, from being given by parol, by her daughter, the negro being delivered at the time of the gift. Macqueen on Husband & Wife, 292, 293, in 66 Law Lib., 86. 3 G. & J., 508 , Carroll vs. Lee, Adm’r of Lee. Nor do we think it was necessary to the validity of the alleged exchange, ³⁶¹ that it should have been reduced to writing. Whether the proof, properly in the cause, shows there was an instrument of writing on that subject, and if it does, whether its loss and contents have been established, are questions which may be more appropriately considered in the subsequent part of the case.

The defendants, as we have seen, contend, that conceding the plaintiff acquired a separate use in Jane, and her after bom children, it was merely an equitable estate, the legal estate being in her husband, as her trustee, and, therefore, although he died long before this suit was instituted, she is not entitled to recover in this action at law. Admitting that, with a view of protecting the separate estate of the wife against the husband’s marital rights, and against his creditors, where the estate has been created, simply for the separate úse of the wife, and no trustee is named, the husband is to be considered as trustee for the wife,' there can be no good reason, why, after the termination of the coverture, by the death of the husband, and the wife surviving, she should not be regarded as having the right of possession. In this instance, the husband died in 1840. The suit was brought in 1857.

From the time of the exchange, in 1836, until the death of Jane, she was held by Mrs. Beall as her property, without objection, says one of the witnesses. And there is no proof whatever, that the plaintiff’s right of possession of Jane, or of her children, was ever resisted, or in any manner denied or interfered with by Mr. Beall, in his life time, of by his personal representatives, or by any person claiming through him, since his decease. Under such circumstances, and inasmuch as a right of possession is sufficient to support an action of replevin, we do not think the position assumed, by the defendants is correct. The testimony of Caroline Mackall, a witness for the plaintiff, was taken under a commission.

In her answer to the third interrogatory, she states, the gift of negroes Eliza and Jenny, by A. Beall to his daughter, and the sale of negroes to a Mr. Chew, of Mississippi, by Leonard Chew the husband of Amelia. The witness then says, “Before the marriage of ³⁶² Amelia H. Beall to Mr. Leonard Chew, she gave negro Maria' one of the children of Jenny, to her mother the plaintiff, Mrs.Grace Beall, absolutely and for her own use. Among the negroes sold by Mr. Chew were some of Maria’s children.Maria wished to go with them, and Mrs. Beall was persuaded by Mr. Chew and his wife, to take Jane in exchange for Maria her sister, in order that Maria might not be separated from her children. Mrs. Beall consented to the exchange, and Jane was delivered to her by Mr. Chew and his wife, to be held as-her property in the stead of said negro Maria.

(The exchange' and the absolute right of Mrs/ Beall to negro Jane as her separate property, was attested by a written paper signed by both Leonard Chew and his wife Amelia, and by them delivered to' Mrs. Beall.) 1 never saw the said paper, and have no further' knowledge of it than this, that I have often heard Mrs. Beall state, in the presence of Mrs. Chew her daughter, that she and’ her husband had signed and given to her such a paper, and regret the loss of it, and at no time did Mrs. Chew deny, that she had given Jane to her in exchange for Maria, and that she had given such a written paper to her in attestation of it.” In response to the 4th interrogatory, this witness, says, “My' answer to this has been somewhat anticipated, in my reply to‘ the preceding or third interrogatory. Amelia H. Beall made’ no sale, but before her marriage to Leonard Chew, did make' a gift of negro Maria, to her mother, Mrs. Grace C. Beall, and-delivered said negro to her. She retained the possession of-Maria, claiming her as her own, up to the time of the sale-made by Mr. Chew, subsequent to his marriage with Amelia,of the children of Maria, and then surrendered her in exchange-for negro Jane, at the instance of Mr. and Mrs. Chew. Jane' from that time until her death was held by Mrs. Beall as her property, without objection, so far as 1 ever knew.

There' was no paper writing within my knowledge, accompanying; the original gift or the exchange, further than I have before-mentioned. The children in controversy in-this cause are, to my knowledge, the children of the said negro Jane. I never-had any such paper in my possession. I have known Mrs.Beall to search diligently for the paper spoken of in my answ-er ³⁶³ io the 3rd interrogatory, without being able to find the same. ‘The negroes in controversy, being the children of Jane, were bom after the exchange for Maria, and have been brought up and claimed by Mrs. Beall as her property.

After Mrs. Chew lost her negroes, that, is, after they were sold, Mrs. Beall permitted her to harm the service of some of Jane’s children, but always claimed them as her own.” Aquila Beall was the uncle of this witness, her mother being his sister. The first bill of exceptions shows, that at the trial, the plaintiff offered to read in evidence to the jury the deposition of Caroline Mackall, taken under the commission. But the defendants’ counsel prayed the court to exclude from the jury, so much of said deposition contained in the answer to the third interrogatory, as is included in brackets, the same being as follows: “[The exchange and absolute right of Mrs. Beall to negro Jane, as her separate property, was attested by a written paper, signed by both Leonard H. Chew and his wife Amelia, and by them delivered to Mrs. Beall.]” The ground stated why this evidence should be excluded, is, “Because it is not competent or admissible for the witness to speak of the contents, operation or effect of said paper, as the information she had, in relation to said paper, was derived from conversations bad with the plaintiff and Mrs. Chew, after her marriage with the testator of the defendants, and because the same is merely hearsay testimony.” But the court overruled the prayer and allowed the testimony objected to, to be read to the jury as part of said deposition; to which overruling and allowance the defendants excepted. By referring to the commission and return, as contained upon certain pages of the record, this exception includes the whole testimony of Caroline Mackall.

The second exception: After the evidence detailed in the preceding bill of exceptions, which is made part of this exception, had been read to the jury, saving and reserving the last sentence, in the answer of Caroline Mackall to the third interrogatory, commencing with the words: “Í never saw,” and ending with the words? ³⁶⁴ “in attestation of it,” which were excluded by the court, and not excepted to by either side, the plaintiff proved by Mrs. F. Bowie, that Aquila Beall, the husband of the plaintiff, made a gift of two negroes, Jenny and Eliza, to their daughter Amelia H. Beall, when she was a small girl. That Aquila died in April 1840; that Amelia H., about four or five years before her marriage to the testator of the defendants, which took place in October ] 835, gave toiler mother, the plaintiff, for her sole and separate use, negro Maria, then about sixteen years of age; that in 1836, L. H. Chew, being about to sell the children of Maria to one Frisbv Chew, of Mississippi, he and his wife made an exchange with the plaintiff for negro Maria, and gave and delivered to the plaintiff, for her sole and separate use, in lieu of arid in exchange for said woman Maria, a woman named Jane and her child John, then the property of Leonard H. Chew; and further proved by the said witness, that the negroes in controversy in this case, were the children of said negro woman Jane. Whereupon, the defendants prayed the court to grant the seven following instructions: 1st. “If the jury find from the evidence in this case, that negro Maria was given by Amelia JEJ. Beall to her mother, the plaintiff, her husband A. Beall being then alive, although they may infer the gift for her sole and separate use, and that the plaintiff exchanged, said negro Maria with Amelia H. Beall, and her then husband, L. H. Chew, in 1836, while the husband of the plaintiff was alive, for negro woman Jane, that then the title of the plaintiff is not such a one as could be litigated in a court of law, and that the plaintiff is not entitled to