Davis v. Patton

Goldsborough, J., delivered the ojiinion of this Court: William II. Cheizum, late of Talbot county, died in the year 1843, intestate, leaving, besides other personal property, certain negro slaves, to be distributed amongst his mother, brothers and sisters, who were his legal representatives. Sarah B. Davis, one of the appellants, and one of the sisters of the deceased, had, prior to her brother’s death, intermarried with John Bowens. In the final distribution of the negroes, negro Caroline Chase was allotted to John Bowens, husband of Sarah B. Bowens, he paying to the mother of the deceased fifty dollars.

This allotment was made by the commissioners on the'24th of November 1843, and on the 12th of January 1844, this division <£was passed by the Orphans’ Court” of Talbot county. John Bowens, the husband of Sarah B. Bowens, having paid the amount required in the allotment, he and his wife took possession of negro Caroline, and afterwards sold and ¹²⁷ delivered her to the appellee, and after the sale and delivery, the negroes in controversy (who, it is conceded, are the children of Caroline) were born. John Eowens subsequently died, his wife surviving him, who thereafter intermarried with William W. Davis, the appellant. Davis and wife instituted this action of replevin against the appellee, to recover the negroes in controversy.

The verdict of the jury and judgment of the Court being for the defendant, the case is presented for our consideration upon exceptions to the ruling of the Court below, granting the prayer of the defendant, and rejecting those of the plaintiffs, and also rejecting the application contained in plaintiffs’ last exception. After the evidence mentioned in the record had been submitted to the jury, the plaintiffs offered two prayers, which, not being objected to, the Court gave. The substance of the first prayer is, that if the jury believe that negro Caroline was assigned to Sarah B. Davis, in the distribution of William H. Cheizum’s estate, and that John Eowens, her husband, made a verbal contract of sale of Caroline, and that no bill of sale was made to defendant for Caroline, then no title passed to the defendant by said contract. The second prayer was, in substance, that if the jury believe that Caroline was distributed to Sarah B. Davis, and that Caroline is the mother of the negroes in controversy, and that no disposition of Caroline was made during the lifetime of John Eowens, other than a parol agreement to sell her, then the title to Caroline survived to Mrs. Davis, and the children of Caroline became her property.

Though these prayers are not before us for adjudication upon the law embraced in them, we deem it proper to allude to them, as they will be considered in connection with the plaintiffs’ exceptions. ¹²⁸ After tlie above prayers were granted, together with the defendant’s prayer, and the plaintiffs’ three other prayers were acted upon by the Court, and exceptions taken to its rulings upon the evidence then before the jury, the plaintiffs applied to the Court to withdraw the evidence of John B. Rowens, under the circumstances detailed in the plaintiffs’