Farrell v. Bean

Eccleston, J., delivered the opinion of this court. The bill in this case was filed in September 1852, by the appellant against the appellee, it alleges that, the former was indebted to the latter, in 1846, in the sum of $151, the indebtedness consisting of $50 cash lent, and a judgment for $101, due to Bean by a certain Smith Turner, which the complainant had agreed to pay; that being so indebted she agreed with Bean to give him a lien therefor upon a negro boy of her’s, she delivering possession of the boy, but retaining the right to redeem him by the payment, of the said sum of $151, when able to do so, or when demanded in a reasonable time. That when the agreement was being consummated Bean stated that he did not know how to write a mortgage, but that a receipt ²²⁰ would do as well, and would answer the same purpose; that the complainant placed implicit confidence in the knowledge and statement of the defendant; and in furtherance only of the agreement as stated, she signed some instrument of writing in reference to the boy, which writing was given to the defendant, and at the same time possession of the boy was delivered to him for the purpose aforesaid, and he still continues to hold him. The bill also alleges, that “the complainant believing the whole transaction had been' conducted as agreed upon, remained easy in reference thereto, and several times, either in person or by an agent, called upon the said Bean to know if he wanted the aforesaid sum of money, he replying that he did not then want money, and so the affair continued until-in the early part of the year 1852;” at which time the complainant sent an agent to pay off the lien or mortgage upon the boy and to.redeem him; that then for the first time, to the knowledge of the complainant, Bean claimed the boy as his own, and refused to allow him to be redeemed.

The bill reasserts that the bojr was delivered to the defendant to secure the payment of the aforesaid sum of $151; and alleges that if he “has any paper or instrument of writing showing that said negro belongs to him, and the said title to said negro is derived from this complainant, that it is fraud upon tlfis complainant and contrary to equity and good conscience,” The prayer of the bill is, that the defendant may be decreed to deliver the negro boy Tom to the complainant,, upon the payment of the aforesaid lien, and that she may have such Other and further relief in the premises as her case may require. The defendant in his answer says, that on or about the 13th of March 1846, William Turner, the brother of the complainant, professing to act as her agent, called upon the respondent, and proposed that he should buy the negro boy mentioned in the'bill of complaint,-the said Turner, either tiren or afterwards saying, Mrs. Farrell did not want to sell the negro to a trader. That after the proposition thus made tire respondent went over to see the boy, and, on the 13th of March 1846, agreed with the complainant to purchase him, at and for the sum of $225. That the complainant agreed to receive in part payment two ²²¹ judgments which the respondent held against Smith Turner, a brother of the complainant, and the respondent then and there assigned them to her, the judgments then "amounting to the sum of $125.71; and also paid, in cash, $77.26.

The balance, by agreement, was paid in goods from the store of the respondent, who was then a merchant. The answer positively avers the sale was absolute and bona fide; that the whole price has long since been paid, and that the complainant gave a "receipt for the same. He denies having told the complainant lie did not know how to write a mortgage, but that a receipt would answer the same purpose. The answer asserts that the boy was delivered, on the 13th of March 1846, to the respondent, who has held possession of him, using and claiming him as his own, ever since.

And it denies that the receipt is a fraud, but, on the contrary, it insists that instrument was executed by the complainant, with a full knowledge of its force and effect as well as the contents thereof. And the respondent denies having practiced fraud or deceit upon the complainant in any manner. He also denies that from the time of the sale up to the year 1852, Mrs. Farrell, either in person or by agent, ever called upon him to redeem the boy, or to know whether he (the respondent) wanted the money. He says, that in 1852 Smith Turner called on him and asked him if he was willing to take the money he paid and give tip the boy, to which the respondent answered he was not.

The inquiry was made as stated, but Turner did not actually tender or offer any money. The answer further states, that after the sale the respondent, told the complainant if in a short time from the sale she would make out, and pay back to him the $225, she might have the boy again if she wanted him: or in other words, he would sell the boy to her for that price; but that this was a mere gratuitous promise on the part of the respondent, not constituting any part of the agreement of the sale, and was made only as a matter of favor to the complainant, after the sale had been entirely consummated. That the complainant did not, within a short or reasonable time after said promise, “either in person or by agent, call upon the respondent to fulfill said promise,” ²²² And the answer further states, -“that no note or memorandum in writing was made by this respondent or any agent of his of the agreement on his part to let the said complainant have the boy back again, and he therefore pleads in bar the statute of frauds to so much of the complainant’s bill as seeks relief for and on account of such parol agreement.” The bill was filed since the act of 1852, ch. 133, and the answer not having been required under oath, or read by the complainant as evidence, at the hearing, it is not to be regarded as evidence. The decision of the cause must therefore depend upon the proof.

The receipt'given'by the complainant is as follows: “Received, this thirteenth day of March, eighteen hundred and forty-six, of William N. Bean, two hundred and twenty-five dollars, in full for my servants. Tom, supposed to be about twelve years'of age,'which I warrant and defend to the said Bean. Elizabeth H. m Farrell. Test, — Smith Turner, John T. Davis.” As a witness on the part of the complainant, Smith Turner says, that in 1846, in consequence of what his brother Wm.

A. Turner told him, he went to see Mr. Bean, and asked him whether he' would take a mortgage on the boy of Mrs. Farrell’s, for a judgment of $101, against him (the witness) and the loan of $50 to Mrs. Farrell. The defendant consented to do so, and said he would come over to Mrs. Farrell’s in two or three days and bring the mortgage with him. He did come as he promised, but said he had not the mortgage; he had no form to write one by, and without a form he could not draw up one properly; it was a long instrument, and a receipt would do as well. Mrs. Farrell remarked, if you should want your money, and I have not got it, I suppose the boy will have to be sold; he said yes, but I shall not push you for 1 ' am not in want of money.

He then commenced drawing the receipt, and whilst writing he told Mrs. Farrell, a certain sum must be mentioned in it, and asked what it should be? should it be $225? She said she supposed that amount would do as well as any other. The receipt was drawn with that sum in it, and Mrs. Farrell signed it. Bean took the boy home with ²²³ him, and the day after, the witness hired him from Bean at §15 for the balance of the year.

To a question, what was the true amount for which the boy was transferred to the defendant? the witness says, it was the judgment that Mrs. Farrell paid for him, and the §50 lent to her, making in all the sum of §151. This witness also says, that at the request of the complainant ho called at the end of the year 1846 to see the defendant, to know if he wanted his money, whose reply was, he could do without it, he was not pushed for money. And to a similar inquiry at the end of every year for three years he made the same reply. In 1852 the witness carried the money to the defendant and he refused to accept it, saying the boy was his and he intended to hold him.

Being asked, on cross-examination, who was present at the conversation between Mrs. Farrell and Mr. Bean, referred to by the witness, he says, Mrs. Farrell, Mr. Bean and myself, and no one else. When he called in 1846, he had not the money with him. He never offered to pay the money until 1852, but then he told the defendant he had the money. Spalding C. Moore, a witness for the complainant testifies, that when the boy was conveyed, he was a constable, and had a judgment against Smith Turner.

The witness says, “I thought the only chance to get my money was to go to Mr. Bean and pay off the mortgage, get possession of the boy, sell him and get my money. I did go to see him and told him that I would pay oif the mortgage if he would give me possession of the boy, and he replied, that he could not do it without the consent of Mrs. Farrell, but all that he wanted was his money, hut could not do it without her consent. This conversation was in 1846.” Wm. A. Turner, (a brother of the complainant,) being examined as a witness for her, testifies, that in February or March 1846, he went, at the request of Mrs. Farrell and Smith Turner, to see Mr. Bean, to know if he would advance fifty or sixty dollars and take the boy in possession, until they could redeem him, and also take him as security for some ²²⁴ judgments which he held against Smith Turner.

The defends ant said he would see them. This conversation was a few days previous to the transfer. Some two or three years afterwards, Whilst talking about the boy, Mr. Bean asked this witness if he thought the money would be raised-to redeem him. The witness replied, he thought it probable they Would settle, if they could raise the money.

Mr. Bean then said, he wished they would settle; it Was property he did not like to have, and would rather have the money than hold the boy. The witness understood the conversation as alluding to Mrs. Farrell and Smith Turner. On further examination of Smith Turner by the complainant, the following additional interrogatories were propounded, and answered: u Interrogatory Isi. You stated in your examination on the 9th, that the boy Tom, mentioned by you, was transferred to Mr. Bean by Mrs. Farrell, to secure in part a judgment against you of $101.

Have you since been able to refresh your memory, and was it or not to secure two judgments of that aggregate amount? Answer. It was to secure two — there were two. Interrogatory 2nd.

Are these judgments now shown you marked A. and B., the judgments referred to? Answer. Yes, they are the two judgments. Interrogatory 3rd.

In whose hand-writing is the assignment upon these judgments, and the calculation of the amounts due 15th March 1846? Answer. Mr. Bean — he assigned them in my presence.” Copies of the judgments are then set out in the record, with a statement of the principal, costs and interest upon each, and an assignment on each from the defendant to the complainant, dated the 15th of March 1846. The principal of one is $61.08, and of the other $40.08, making together $101.16.

The costs and interest on both, up to the 15th of March 1846, being added, the whole amounted on that day to $125.70. After setting forth the judgments the record shows, that on behalf of the defendant, further cross-hiterrogatories were propounded to Smith Turner, which were answered as follows: ²²⁵ “Interrogatory. Was this $50 you have spoken of paid at the time the receipt was executed? Answer.

Yes. Interrogatory. Was this $50 all the money paid by Mr. Bean to Mrs. Farrell, on account of this boy Tom? Answer.

It was all the money paid at that time, and all that 1 know of. The money was a single $50 note. Interrogatory. Did Mrs. Farrell, at the time of the transfer give Mr. Bean any note for the money which you say was paid by Bean to her?

Ansioer. No, she did not give any in my presence. Interrogatory. Have these judgments been in the possession of Mrs. Farrell ever since the assignment?

Answer. Yes, they have been in her possession until they Were sent' down to Mr. Brent, so far as I know. Interrogatory. Did you not get $16, from Mr. Bean some few days after the assignment, to go as the other $50?

Answer. I now recollect, being reminded of it, I did; it was to be a further lien for that amount upon the negro boy. I should have mentioned it in my first examination, had I recollected it at the time. Interrogatory.

Did you attest the receipt you have spoken of as a witness ? Answer. I am not certain whether I did sign it as a witness or not. Interrogatory.

Did you read the receipt? Answer. I did. Interrogatory.

Do you recollect the contents of said receipt ? Answer. Not all. But I think I recollect a part, to wit: Received from Mr. Bean the sum of two hundred and twenty-five dollars, it being in payment in full of a negro boy Tom.

There is something else, but what it is I do not now recollect.” John T.'Davis, whose name appears upon the receipt as a witness, was examined on the part of the defendant, and says the name is his signature; that Mrs. Farrell affixed her mark to the receipt in his presence; and he attested it in her presence, at the fimo it was executed by her. Prior to its execution, the paper was read over to her by Mr. Bean. This wit ²²⁶ ness went over, on that occasion, to Mrs. Farrell's with Mr. Bean, and. remained there ail the time he was there, and returned home with him. Being asked whether he did or did not remain in the house and with Mr. Bean and Mrs. Farrell all the time Mr. Bean remained there ? and to state how long Mr. Bean was there, the witness says: “As well as I recollect, I have no knowledge of being out of the house, and if I remained in the house all the time, I was with Mr. Bean and Mrs. Farrell, as we were all in the same room.

I cannot say exactly how long Mr. Bean remained there. I suppose about half an hour or one hour; it might be more or it might be less.” He says he was present at the purchase of the negro, as he understood it, at the price mentioned in the receipt, or paper marked X. There was $50 paid in his presence' and two judgments were assigned, the amount of which he does not recollect. Mr. Bean remarked that he did not wish to buy negroes, and if they would pay him his money they could take the boy. There was no reply to this that the witness recollects of, and as well as he remembers, Mr. Bean said this after the execution of the receipt, and just before Mr. Bean and the witness left.

The boy was delivered to Mr. Bean, with whom it appears this witness was then living as a hired laborer, and he took the boy home and put him to work. To a question, whether any thing was said about a mortgage at that time, by either party? Davis says: “There was nothing said at that time about a mortgage.” He was asked whether the transfer of the boy was not an absolute sale ? and he replied, “I understood it as such from all that passed between the parties in my presence.” On cross-examination, Davis says, he does not recollect whether he was called upon by Mrs. Farrell to witness the receipt, or whether she said any thing about it; Mr. Bean requested him to sign it. Being asked whether he read it before it was read to Mrs. Farrell? the witness answers, “I could not read it; I was not able to read it myself.” He went over to Mrs. Farrell’s at the request of Mr. Bean, and knew nothing of the transaction before going over.

His knowledge of ²²⁷ the