KEYS ET ALS. vs POWELL AND WIFE. APPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT, THE JUDGE Where defendants claim title to certain property under an act sous seing The plaintiffs sue as the surviving wife and children, and the forced heirs and legal representatives, of James Sides, deceased. They allege, that in 1819, James Sides purchased a negro woman for one thousand dollars, as community property, who has since had two children, Peggy and Alfred, about ten and twelve years of age, which now belong to them as the surviving wife and children of the deceased; that one Hiram Powell and Charity Keys, his wife, have taken possession of said slaves, and claim them as their own. They pray judgment that the two slaves be restored to them, or their value, alleged to be worth four hundred dollars each; and that there is danger of the defendants running said slaves out of the state: they further pray, that they be sequestered, &c. Powell and wife pleaded a general denial; they deny that Dorothy Keys, one of the plaintiffs, was the wife of James Sides, deceased; they deny that Susan Shelton and Susan Sides, the other plaintiffs, are heirs of James Sides, deceased; they aver, that Charity Keys, wife of defendant, inherited the negro woman Dinah and her two children, Peggy and Alfred, from her brother, Job Keys, as appears from his will; that Job Keys purchased the said slaves from James Sides in his life-time; that the said Dorothy Keys acknowledged after the said sale that the full price had been paid for said slaves, WESTERN DIST. August, 1834. KEYS ET ALS. POWELL ET ALS. WESTERN DIST. and that she was satisfied with the terms of sale; they then August, 1834. plead the prescription of five and ten years against the plaintiff's demand. KEYS ET ALS. POWELL ET ALS. The evidence shows, that James Sides purchased the slave Dinah by public act, passed before the parish judge of East Baton Rouge, dated the 10th August, 1819, for the price of one thousand dollars; that on the 28th February, 1825, he sold said slave, then about twenty-eight years old, and her two children, Peggy and Alfred, aged four and three years, together with another slave, to Job Keys, for one thousand and two hundred dollars, by act sous seing privé, but recorded on the 19th August, 1825, at the request of the vendee. In this act, James Sides, the vendor signed the act of sale by making his mark, in the presence of two witnesses. In 1827, Job Keys made his will, and bequeathed the slave Dinah and her children, Peggy and Alfred, to his sister Charity Keys, the wife of defendant, Powell. The defendants produced in evidence, a mortgage on the slaves in contest, executed by Sides in October, 1824, to secure the payment to Job Keys, the sum of eight hundred dollars; also the answer of Joseph Hickman, a witness to the bill of sale from Sides to Keys, taken to interrogatories, wherein he declares he signed the bill of sale as a witness, and saw James Sides make his mark to his signature thereto. The act of sale purports to have been made in East Baton Rouge, on the day it is signed, to wit, 28th February, 1825. The plaintiffs offered in evidence a power of attorney, signed by James Sides, in Copiah county, in the state of Mississippi, dated 28th February, 1825, the same day on which the act of sale purports to be executed, constituting the same Job Keys his attorney in fact, to dispose of his property in Louisiana; also an act of sale of two tracts of land belonging to Sides, to James Mather, dated 17th January, 1826, by said Keys as attorney in fact; and an act of sale of Mather to Keys of two tracts of land, in April, 1827; and also the tableau of distribution of the estate of Job Keys, made in 1827, on which Dinah and her two children, Peggy and Alfred, are put down at seven hundred dollars. The plaintiff proved by witnesses the marriage of James WESTERN DIST. Sides and Dorothy Keys, and that Susan Shelton and Susan August, 1834. Sides, the other two plaintiffs, are their children. Hawes, a witness for the plaintiff swears, he had a conversation with Job Keys in the spring of 1827, who said Sides had been in the parish the evening before, and was much distressed for money: "Keys further stated, Sides was coming over to give him a bill of sale, or had already made him a sale of the negroes," &c. The bill of sale produced in evidence, bears date two years before this. Watts, a witness for defendants, says Job Keys had the negroes in possession a year before his death. He died in 1827. Witness has had the negroes in possession since, as his executor; he delivered them to him. The jury returned a verdict for the defendants, and judgment was rendered in conformity thereto, from which the plaintiffs appealed. Elam, for the plaintiffs, relied on the presumption of forgery of defendants' title, arising from the fact of its being executed on the day, which the evidence shows, the vendor was in another state, nearly two hundred miles off. T. G. & M. Morgan, contra. Bullard, J., delivered the opinion of the court. KEYS ET ALS v8. POWELL ET ALS. Where defen The plaintiffs alleging that they are the widow and heirs of James Sides, deceased, set up title to certain slaves in possession of the defendants, and sue for their recovery. The dants claim title defendants derive title to them under the last will and testato certain property under an ment of Job Keys, who, they allege, purchased them in his act sous seing life-time, of the ancestor of the plaintiffs. The cause was tried by a jury in the court below, who found a verdict in favor of the defendants, and the plaintiffs appealed. privé, dated on on miles distant, the same vendor ex The sale from Sides to Keys, which was given in evidence, is a private act, under the ordinary mark of the vendor. Its execution is sworn to by one of the subscribing witnesses. It purports to have been executed in the parish of East Baton fore a justice of ecuted a power of attorney, be sume vendee: with the circum person execu had at that time WESTERN DIST. Rouge, on the 28th of February, 1825. To rebut this eviAugust, 1834. dence the plaintiff exhibited to the jury, a power of attorney KEYS ET ALS executed by Sides, by which he constituted the same Job POWELL ET ALS. Keys his attorney in fact, with power to sell and dispose of the peace, to the any property of the principal, in the parish of East Baton Held, that this Rouge, bearing the same identical date, and executed and fact, connected acknowledged before a justice of the peace, in the county of stance, that this Copiah, in the state of Mississippi, at a distance of one hunting the two acts, dred and seventy miles from Baton Rouge. This power of left the state to attorney was accepted by Job Keys, who proceeded to act avoid a criminal under it, and actually disposed of certain property of the be considered principal. In addition to this, it is shown that Sides had left sumption of for the State, to avoid a criminal prosecution, had confided his gery and perju- property to Keys, and never returned except on one occasion, quire the ver- and then clandestinely. These circumstances raise such dict to be set aside and the violent presumption of forgery and perjury, the two instrucause remanded ments seem so utterly inconsistent with each other, the one appearing from the evidence before us, to render it impossible that the other can be genuine, that we feel ourselves bound to set aside the verdict. prosecution, will ry, as will re for a new trial. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, be annulled and reversed, and that the case be remanded for a new trial, and that the defendants and appellees pay the costs of the appeal. BRADFORD'S HEIRS vs. CLARK. APPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT, THE JUDGE In an action of revendication, for the recovery of a slave, by the heirs, as forming a part of the succession of their ancestor, against the defendant, who holds the slave by written title from said ancestor, executed in his life time, parole evidence is inadmissible to prove, that the defendant directed the slave in question, to be inventoried as part of said succession, in order to make out plaintiff's title. Where parole evidence is offered, with a view to defeat the defendant's written title to a slave, it should be rejected as inadmissible. There is no distinction as to the parties to them, between public and private acts, not recorded in relation to the title to slaves. Between the parties to a contract, an act under private signature, has the same force as a notarial act. They differ as to the mode of proof. An action of rescission, for lesion beyond moiety, does not lie in relation to the sale of slaves. Where fraud and simulation, or lesion, are not alleged, a judgment disregarding a written sale of a slave, will be declared erroneous, and be annulled and reversed. Under the prayer for general relief, when the evidence shows an agreement of the defendant, to pay a certain sum, as the balance of the price of a slave, the court will consider itself authorised to give effect to the agreement, and terminate the controversy between the parties, although not alleged or asked for in the petition. This is an action of revendication of a slave, alleged to be illegally possessed and claimed by the defendant. The plaintiffs are the heirs and legal representatives of Nathan Bradford, deceased. They allege, that at the death of their ancestor, a negro man slave, named Wilson, belonged to his succession, worth seven hundred dollars; that said slave was directed by defendant, to be put in the inventory of said succession, at the death of Nathan Bradford, in 1825 or 1826; that since then he has taken possession of this slave, and pretends to hold him, in virtue of a bill of sale from the WESTERN DIST. August, 1854. BRADFORD ET ALS vs. CLARK. |