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Shelby v. Guy, 24 U.S. 361 (1826)

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24 U.S.

361
6 L.Ed. 495
11 Wheat. 361

SHELBY and Others, Executors of SHELBY, Plaintiffs in


Error, against Guy, Defendant in Error.
March 10, 1826

Feb. 28th.
THIS cause was argued by Mr. Jones, for the plaintiffs in error, and by
the Attorney General and Mr. White, for the defendant in error.
March 10th.
Mr. Justice JOHNSON delivered the opinion of the Court.

The plaintiffs here, were defendants in the Court below, in an action of detinue
brought by Thomas Guy, to recover sundry slaves.

The defendants below plead non detinet, and the act of limitations of the State
of Tennessee, which bars the action of detinue in three years.

The plaintiff joins issue upon the plea of non detinet, and files a special
replication to the plea of the statute, the object of which is to bring himself
within the saving in favour of absentees. The defendants demurred to this
replication, but the demurrer being overruled, the parties went to trial on the
general issue, and a verdict was rendered for the plaintiff in the form now usual
in the action of detinue.

To revise the judgment of the Court in overruling the demurrer, and its
decisions upon various points of law raised in the progress of the trial, this writ
of error is brought.

The case was this. One Dickerson, a citizen of Virginia, the father of the
plaintiff's mother, was owner of a female slave named Amy, from whom the
slave claimed had descended. Upon the marriage of Thomas Terry Guy with

the plaintiff's mother, or soon after, and prior to the year 1778, the slave Amy
passed into the possession of T. T. G, but whether by loan, or parol gift, is a
point litigated, and upon which some of the principal questions in the cause
arise.
6

From the year 1778 to 1794, the slaves remained in Virginia, in the possession
of the plaintiff's father T. T. G., when he sold her and her increase to David
Shelby, who thereupon removed with the slaves to Tennessee, where he and
they have ever since resided.

In the year 1788, Dickerson made his will and died; and the will was proved
and recorded in July, 1788. In this will he says, 'I lend to my son-in-law T. T.
G., the negroes which he now has in his possession, that I lent him in the
lifetime of his wife, during his natural life, viz. Cuffee, Gilbert, and Amy; and
at his death I give the aforesaid slaves, with their increase, to my grandsons
John and Thomas Guy, and their heirs, for ever.'

Thomas Guy, here named, is the plaintiff in this action; the executory devise to
him and John, took effect by the death of their father in 1795. John died
unmarried, under age, and intestate, after his father, but before the action
brought, and neither of the brothers had been in the State of Tennessee until
within three years prior to the institution of the suit, but had resided in the State
of Virginia.

These are the material facts in the cause. The points argued have been very
numerous; but if the plaintiff has tripped in pleading, by a vicious replication,
the questions on the merits are put out of the case. The points arising on the
demurrer, therefore, must first be considered.

10

The replication demurred to, states, in substance, the right of Dickerson to the
negro Amy, and the continuance of that right up to his death; the bequest to the
father of the plaintiff for life, and to the plaintiff and John after his death; the
death of the father, and of John; the qualifying of the executors on the will, and
their assent to the legacy; the sale by the father to Shelby in 1794; Shelby's
removal with the slaves to Tennessee, and subsequent residence there, and the
residence of John up to his death, and of the plaintiff, to within three years of
the bringing of this suit, in the State of Virginia.

11

The demurrer filed to to this replication is special, and assigns for cause,

12

1. That it states the evidence of title, and does not allege a fact.

13

2. That it is double, in relying on the facts both of title and of non-residence.

14

But, claiming the right of looking back to the first fault, and other benefits
appertaining to a general demurrer, to which, no doubt, he is entitled, the
counsel for the defendant have raised a variety of other questions in the cause,
of more interest than those specified.

15

As, first, that the counts in the declaration are repugnant, the one being
essentially a count in trover, the other in detinue; and,

16

Secondly, that the replication involves a departure, inasmuch as the writ claims
the whole property, and the replication shows him to be entitled to no more
than a moiety.

17

That the replication is more characterized by prolixity, than by science, the


Court will readily admit; but that it is essentially vicious, cannot be maintained.

18

The general object of the plaintiff is to fortify his title or demand, and this is a
legitimate object. Nor can we perceive, that in doing this, he has either stated
evidence where he ought to allege facts, or tendered to the defendant a double
answer to his plea, or, rather, 'distinct matters to one and the same thing,
whereunto several answers are required.' That it is redundant, and abounds in
surplusage, with reference to the issue tendered, is obvious; but it prefers only
one answer that will fit the plea, which is, absence from the State of Tennessee
during the term when the statute would bar him

19

Yet, as he has thought proper to amplify upon the nature of his demand, if he
had prostrated his own action, the law would visit him with the consequences.

20

The argument on this point is, that having set out a joint devise to himself and
his brother, he is incapable of maintaining alone a suit for the entirety of the
thing devised. But, in this, we are of opinion, that the law is with him.

21

It is true, that tenants in common must ordinarily join in an action, and that the
laws of Virginia produce a severance upon the death of a joint tenant, so that
the right of survivorship is abolished. But, it is also true, that in suits for an
indivisible thing, a right of action survives to a tenant in common; and this,
from the necessity of the case, as we conceive the authorities sufficiently
maintain. (Co. Litt. 198 a. Bro. Abr. tit. Tenant in Common, pl. 18.)

22

The exceptions to the counts clearly cannot be sustained. They are

22

The exceptions to the counts clearly cannot be sustained. They are


consubstantial, and the same plea and judgment proper to both. Averring that
the defendant came to the possession of the chattel by finding, does not
constitute a count in trover; an alleged conversion characterizes that form of
action. Nor is it any objection to the counts, that one of them states a right to
recovery covery founded in a possession merely, without the direct allegation of
property, since a tortious letention may well be of that which another has no
interest in, but to the temporary use or custody. (Co. Litt. 286. Roll. Abr. 575.)
Thus, a bailee, or common carrier, or sheriff, may maintain this action, and
expressly against one who has them by delivery or finding. (2 Saund. 47. Cro.
Jac. 73. et passim.) We come, then, to the question raised by the demurrer upon
the statute of limitations of Tennessee; and here we are met by one of those
embarrassments which necessarily grow out of our peculiar system.

23

North Carolina, in common with most of the old States, adopted the language of
the statute of James in its act of limitations. This was the law of Tennessee
before its separation from that State, and continues so to this day. The persons
excepted from its operation, are infants, femes covert, &c. and 'persons beyond
seas.'

24

During a century nearly that this law has been the local law of that country, we
cannot ascertain that the Courts of either of those States have been called on to
decide whether it shall be construed according to its literal meaning. In the
meantime, solemn adjudications have taken place in several of the States, to the
purport, that persons without the jurisdiction of the country, though not actually
beyond seas, are within the equity, if not within the actual meaning, of the
statutes containing the same words, and borrowed from the same source. And
in a case which came up to this Court from Ceorgia, in the year 1818, it was
solemnly decided, that it was impossible to give a sensible and reasonable
construction to those words according to their literal signification. But, we are
now informed, and, as it is admitted by the opposite counsel, we cannot
question it, that a contrary adjudication has taken place in the Courts of
Tennessee within the last year, for the first time. It is obvious, that without a
more particular report of that adjudication, this Court could not now act finally
upon its authority. But if the majority of the Court were of opinion, that an
insulated decision on a point thus circumstanced, ought to control the previous
decision of this Court, the course would undoubtedly be, to hold up this cause
for advisement.

25

That the statute law of the States must furnish the rule of decision to this Court,
as far as they comport with the constitution of the United States, in all cases
arising within the respective States, is a position that no one doubts. Nor is it

questionable, that a fixed and received construction of their respective statute


laws in their own Courts, makes, in fact, a part of the statute law of the country,
however we may doubt the propriety of that construction. It is obvious, that this
admission may, at times, involve us in seeming inconsistencies; as, where
States have adopted the same statutes, and their Courts differ in the
construction. Yet that course is necessarily indicated by the duty imposed on
us, to administer, as between certain individuals, the laws of the respective
States, according to the best lights we possess of what those laws are. This
Court has uniformly manifested its respect for the adjudications of the State
tribunals, and will be very moderate in those claims which may be preferred on
the ground of comity. Yet, in a case like the one now occurring, it cannot
acknowledge the objection to go farther, at present, than to examine the
decision formerly rendered, on the construction of these words.
26

We have reflected, and heard arguments on our former decision, and not a
doubt has been entertained, except on the question how far we were bound to
surrender an opinion, under the actual state of difference existing between our
construction, and that of the State from which this cause comes.

27

It is true, that the words, 'beyond seas,' considered abstractedly, must, in every
State in this Union, mean something more than 'without the limits of the
Commonwealth;' which words the State of Virginia has very properly added to
the statute of James. But, it is also true, that if the words 'beyond seas' be
considered with reference to the insular situation of the country from which we
adopted the law, they mean exactly the same as the words superadded in the
Virginia law. And it was this consideration, as well as the obvious absurdity of
applying the terms 'beyond seas,' in their literal signification, that induced this
Court, and has induced so many State Courts, to give it the meaning of beyond
the Commonwealth.

28

If equity, as applied to the construction of statutes by an eminent writer, means,


'the correction of that wherein the law, by reason of its universality, is
deficient;' or, as another defines it, 'interpreting statutes by the reason of them,'
may be applied to any case, we think it may to one, which, while it operates in
restraint of common right, would, by a literal construction, make no saving in
favour of persons residing in the most distant and unfrequented parts of this
extensive continent.

29

Nevertheless, as this cause must go back upon other grounds, we will, for the
present, waive a positive decision on this point as applied to the State of
Tennessee, trusting that the Courts of the State from which this cause comes
will, in due time, furnish such lights upon the fixed law of that State on this

subject, as will enable the Courts of the United States to come to a satisfactory
conclusion upon the question.
30

The next class of questions in the cause arise under bills of exception. The
object of the defendants, in the several prayers for instructions propounded to
the Court, was to be let into proof of a title, without will or deed, in the father of
T. T. G., from whom they purchased, and to maintain, that although that title
was only derived to him by implication under the limitation acts of Virginia, it
was sufficient, not only to make out a defence by pleading, but by giving such
facts in evidence as would be a good defence on a plea of the statute of
limitations, if the suit were instituted in the State of Virginia, or to maintain
detinue in a suit to recover in right of a possession under the statute in that
State. With this view, he proposed to rely on the following propositions:

31

1. That the proof that Dickerson, on the marriage of Guy with his daughter, had
sent the slave in question with them, or to them, upon their going to housekeeping, and permitted her to remain there ever after as their property, without
any specific declaration of the interest vested in them, other than the will of
1788, with a variety of corroborating facts, was sufficient to sustain an inference
of a gift or transfer by parol, and of such an adverse possession as might
constitute a bar under the act of limitations of Virginia of 1705.

32

This the Court refused, on the ground that a parol gift of slaves in Virginia was,
at the date of that transaction, absolutely void.

33

In this, it is contended, the Court erred, both as to the law, and as to its
application to the case.

34

As to the law, we are of opinion, that the question is not now to be stirred. We
do not mean to intimate an opinion on the construction of the acts of 1757 and
1758, on this subject; but only to treat it as a decided point upon the
construction of those statutes, that a parol gift of slaves made in Virginia, even
where the possession passed, between the years 1757 and 1787, was void, or
voidable; for, as to all the purposes of this case, it is immaterial which. The
declaratory act of December 31, 1787, we regard as a new enactment, taking
effect from its date, as a repeal of the prior acts in those cases in which the
possession passed with the gift. The possession here relied on was from 1775 to
1788, at which time the will was recorded. And here, the material question
arises, whether, if void or voidable, it does not create such an adverse interest in
the donee, as the statute of 1795 may attach upon, so as to vest a complete
interest. And, on this point, we think the Court erred in rejecting the proof. For,

although the gift may have been void or voidable, the fact of delivery of
possession attended it, and this must have put the party to his action to reinstate
himself in the enjoyment of the property. The limitation to the action of detinue
in Virginia, is five years; and here the supposed donee proves a possession of
ten years.
35

There can, then, be but one doubt raised on the right of the defendant to the
instruction here prayed, and to the admission of the evidence offered to the fact
of a parol gift, and that is, whether he could avail himself of this defence in this
mode.

36

In the case of Newby v. Blakley, (3 Hen. & Munf. 57.) a case strikingly
resembling this in its circumstances, it was adjudged, that a plaintiff, in
Virginia, may recover in detinue upon five years peaceable possession of a
slave, acquired without force or fraud. And, four months after that decision, and
obviously without being apprised of it, this Court, in the case of Brent v.
Chapman, maintained the same doctrine. (5 Cranch's Rep. 358.)

37

It follows, we think, that, on the same principle, such a possession must


constitute a good defence in Tennessee. To preclude the defendant from
availing himself of the benefit of that evidence which would have sustained an
action for the same property by the person from whom he purchased it, would
be to convert a good and valid title in Virginia, into a defeasible title in
Tennessee; a sufficient title in a vendor, into a defeasible title in his vendee;
and, by an indirect operation, to make the seller liable, where a direct action
could not have been maintained against him to recover the property sold.

38

The second prayer is calculated to obtain of the Court an instruction, that, after
an indefinite loan to Guy the father, a subsequent devise to his children, if
intended to save the slaves from his creditors, was inoperative as to Guy, and
purchasers for valuable consideration claiming under him, unless with actual
notice of the will.

39

On this, it is sufficient to remark, that as there were no creditors before the


Court, the Court was under no obligation to speculate upon the possible effect
of their interests upon the case. And this gets rid of the influence of the decision
in Fitzhugh v. Anderson, on the cause, as will be more particularly shown in a
subsequent part of this opinion. The defendant here, was a purchaser from T. T.
G. at the time when the will of the grandfather was of record. How far
purchasers are affected with record notice, is obviously a point of local law.
And, we understand, that much importance is attached to it in the jurisprudence

of Virginia. Certainly, in ordinary cases, where such a source of information is


open to all, those who do not avail themselves of it come with an ill grace
before a Court to complain of imposition.
40

The third prayer was intended to maintain, that, on the circumstances of the
case, the jury might infer both a deed, and the recording of that deed. Broad as
this claim was, it is obvious, that the Court was not bound to give the
instruction, since it would have availed the party nothing, without the
additional fact of the loss or extinction of the record also.

41

The fourth prayer had relation to the question, whehter the right of action
survived to the tenant in common, which has been already answered. As
Thomas Terry Guy died before his son John, the executory devise to John and
the plaintiff became vested possession. Their right of action then accrued, and
that right survived to this plaintiff, whatever may be the ultimate distribution of
the slaves when recovered. This also was rightfully refused.

42

And the same remark answers many of the exceptions taken to the charge
which the Court below did give, upon the sufficiency of the plaintiff's cause of
action, and the form of laying it.

43

Other exceptions are taken to the legal doctrines of that charge; one of which is,
that, under the Virginia statute of frauds of 1785, the loan, with five years
possession, became a vested title in T. T. G.; another, that upon the general
doctrines of Courts of law, on the subject of frauds imputable where the
possession remains in one, and the right in another, this will should be adjudged
a mere cover and evasion, or a new devise for the perpetration of fraud.

44

But, on these subjects, we think it unnecessary to remark at any length; the


dates and facts do not bring the case within the operation of the statute of
frauds of 1785; and, with regard to the general doctrine, it never has been
supposed to extend to a purchaser with notice, mcuh less to a purchaser whom
the local law affects with notice of the highest order. Had the defendant, in this
instance, been a creditor of T. T. G., who had trusted him on the faith of this
property, and now sought relief under the principle in Twyne's case, the
decision in Fitzhugh v. Anderson, (2 Hen. & Munf. 289.) might have applied.
That case was expressly decided upon the principle in Twyne's case. The
complainants were legatees of their grandfather, under a will that was not
recorded until three years after the creditors (who were defendants) had sold
the son's slaves under execution; slaves which he had held in possession for
fifteen years, under a loan, which was never avowed until the slaves were set

up for sale, and which there was obviously much cause for bringing into
serious suspicion.
45

Judgment reversed, and a venire facias de novo awarded.

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