Martin v. Martin

The question as to the multifariousness of this bill would seem to be quite an abstract one in the present position of the case. The question was originally raised by a demurrer to the bill, filed by the present appellant, W. R. Martin, and his co-defendant, John T. Martin. The demurrer of the latter party was sustained, but he subsequently filed an answer, disclaiming all title to the slaves in his possession, and giving them up to be administered as a portion of the estate of Russell Martin. The demurrer of the appellant was overruled. The other defendants, who were distributees or heirs of Russell Martin, in conjunction with the appellant and appellee, filed their answers, admitting the allegations of the bill, so far as the slaves in their possession was concerned. At the hearing, the whole case was narrowed down to a controversy between the appellant and the appellee. That controversy was investigated on its merits ; a mass of testimony was introduced, and it is difficult to see any advantage which could result to the appellant from a reversal of the decree upon the ground of multifariousness, provided the other questions involved in the case should be determined against him. These suggestions are, however, made rather as an apology for not going into a very critical examination of the authorities which have been referred to upon this *40subject, and not witli a view to leave the point undecided. I believe the objection to be untenable. Passing by the question of jurisdiction, which will be presently considered, it will be seen that this bill has a common purpose in view, based upon a single and connected proposition. All the defendants stand in precisely the same predicament. They are all heirs of Russell Martin, and as such only claim a title to the slaves in their respective possession, by gift from the common ancestor and independent of their rights as distributees. If the title of one is good, the title of all is good ; if one fails, all must fail. This is the assertion of the bill. The charge of the bill is that Russell Martin, the ancestor, put into the possession of each of his children a slave, as a loan, and with the express understanding that the slaves were to be returned'at his death, and they and their issue divided equally among his children. The whole object of the bill is to have this title, asserted to be in the heirs of R. Martin, ascertained and protected. ’ The bill is against several persons,'but the demands against each are similar, based upon the same facts, and growing out of and depending upon the same principles. It is true, that one of the defendants, W. R. Marlin, occupies the position of co-administrator as well as a claimant in his own right; but it is in the latter character only that he claims any title to the slaves in his possession. Whatever effect the appellant’s position, as administrator, may have in giving jurisdiction to the court, it is certainty only his antagonistic position to the estate that he is called upon to defend. Such is also the position of the other defendants. Why compel the personal representative to bring as many suits as there are heirs, when the whole matter can be as well and better settled in one suit ? If the claims of the several defendants were derived from different sources, or depended upon different principles, and had no necessary connection with each other, so that the bill might fail as to one and be sustained as to another, I can see the inconvenience and impropriety of commingling such disconnected demands. But this is not so, and I therefore conclude that the question of multifariousness should not prevail.(a)

I have no doubt of the jurisdiction of a court of equity In cases like the present. Where property alleged to belong to a decedent’s estate, is in the possession of a third person, sotting up an adverse claim, can there he any doubt that the personal representative of the decedent could maintain trover, or replevin, or detinue ? Those sections of the Administration act, which have been thought to provide a remedy in the County Court in such cases, would not, upon any construction, oust the Circuit Court of its common law jurisdiction. The 9th section of the second article of the act provides for a case, where any person “conceals or embezzles” goods of the deceased. These terms would seem to Imply fraud, but if the administrator preferred to waive the fraud and bring his action of trover, could a demurrer to the dcclar-ation bo sustained on the ground of an exclusive jurisdiction in the County Court ? The cases which must have been contemplated by the 9th and preceding sections, are probably such where the title of the estate is beyond dispute. Very summary'procceodings are authorized ; a citation and examination on oath are permitted. Where a serious dispute was anticipated about title, a prudent administrator would scarcely venture on this extraordinary reniedj''. The action at law is plain, and his authority to bring it is beyond dispute. The 31st section of the same article expressly requires the administrator to commence and prosecute all actions which may be necessary in the course of his administration.

But the defendant, W. R. Martin, was a co-administrator with the complainant, and a suit at law could not have been maintained. The administrator could not sue himself, nor could one administrator sue his oompanion at law. If it be said that the act concerning Administration has provided a mode of removing an administrator in cases of this character, and that by pursuing this mode the defendant might have been sued at law, the neoessit.y. of such circuitous proceedings only more clearly brings the case within the jurisdiction of the Chancellor. The remedy prescribed in the Administration law, if any be admitted to exist, is not of that clear, ample and complete character, which ought to divest a jurisdiction already existing in another tribunal; plain, .adequate and satisfactory. To proceed against the administrator fgr unfitness *41must also, to some extent, involve a consideration of tlie very same questions •of title, ■which have ultimately to be decided in the subsequent proceedings. The law does not encourage circuity of action. When a controversy can be •settled in one suit, it is not good policy to require two.

Upon the facts of this case, I shall not dwell. To show where the weight of testimony is, would be to recapitulate all the evidence, which is voluminous, and may be found in the statement. I shall advert to one or two circumstances ■only, as satisfactory to my mind in favor of the decree.

It cannot be denied, that the testimony which ought to establish such an arrangement as is charged and sought to be enforced in this bill, should he of the most unequivocal and satisfactory character. Such plans are usually resorted to, with a view to protect property from creditors. They arc.seldom made in good faith, and where there is no want of good' faith, they are still unequal and unjust in their operations, and tend to produce dissatisfaction and dissension. Courts of equity cannot view such dispositions of property in a favorable light; every presumption of law and of fact is against their existence ; yet where they are clearly proved, the right of the parties to dispose of their property according to their own caprices, is indisputable, and the contract proved must be enforced, however absurd or unjust.

Entertaining those views in relation to the policy and propriety of such dispositions of property as is c’aimed to have been made by Russell Martin among his children, I have scrutinized the testimony with no unfavorable propositions against the defendant’s rights. But there is a mass of testimony from witnesses who stand unimpeached, and -whose opportunity of knowing the facts must have been great, all tending to establish tlie fact that llussell Martin placed with each of his children, upon their marriage, a female slave, as a loan, and with"a distinct understanding on the part of the children, that the slave and her increase should be returned at liis death into the mass of his estate, to he again distributed under the law. It is a fact worthy of some consideration, that all the children in this case, except the defendant, admit this disposition, and have returned their respective shares of Slaves. In relation to some of these heirs, it was their interest to maintain such an understanding, and their testimony to its existence may therefore be entitled to but little influence. But this was not the case in relation to one or two of tlie others, who, in addition to the present defendant, were losers by the establishment of the title of Russell Martin’s representatives, and their admissions tend to corroborate very strongly the assertions of the interested parties.

The admissions of the defendant, W. R. Martin, made during a long series of years,-repeated to various witnesses upon various occasions, are certainly very convincing proof to establish the truth of the allegations of the bill.These admissions, however, are not alono and unsupported by acts, but they wore corroborated by acts of ownership asserted by the father, under circumstances calculated to leave but little-doubt as to the real understanding of all the parties "to the transaction. Russell Martin, the father, continued to pay the taxes of the slaves put in the possession of his children, and upon the slaves now. claimed by the defendant, for a long series of years. W. R. Martin, the defendant, was hoard upon several occasions to speak of the transaction as a loan, and to laud the justice and propriety of the arrangement by which, as he then supposed, the sons and sons-in-law of liis father would be prevented from dissipating the property advanced to them. In the course of ten or fifteen years, after the defendant had received the female slave, now claimed by him, from his father, he began to perceive the injustice and impolicy of his father's project. He then set about asserting title, but liis course on these occasions is one of the most convincing proofs to establish the title of his father. He never asserted that tlie slave in his possession had been given to him, but he commenced building up a title on long and peaceable possession. Having conceived a notion that five years’ peaceable possession gave title, he based his rights upon that doctrine. He never pretended that his father had-given him the slave, but that liis long and uninterrupted possession of her would, in the eye of the law, and as he had been advised, constitute a title for him. Is not this assertion, coupled with his *42former assertions, acquiescing in tlie original term of a loan and tlie repeated practical assertions of title on tlie part of tlie father, by paying taxes on the slave, sufficient to make a strong case against tlie defendant ?

The testimony in relation to the public rumor, I have not noticed, because I think it was inadmissible, and there is ample testimony without it; nor is there any counter evidence of any note. Nearly all the testimony on the defendant’s behalf is of a negative character. Numerous witnesses are introduced to prove that they had not heard any public rumor. That Russell Martin’s slaves had bien loaned to his children, such negative testimony is entitled to but little weight, when opposed to positive testimony to the contrary, of unimpeached and disinterested witnesses.

The declarations of Russell Martin, the father, in the presence of the defendant, and uncontradicted by him, were also in evidence, and entitled to weight in aiming at tlie facts.

I consider, then, tlie repeated admissions of the defendant, and his subsequent assertion of title upon a supposed acquisition of one by long possession; the payment of taxes by tlie father, and his unequivocal declarations that the slaves were his, made in the presence of the defendant, and acquiesced in, although with evident dissatisfaction by the son; the acknowledgment of all the other children and sons-in-law of the father, Russell Martin, that the slaves held by them were loans, as altogether forming a mass of testimony in favor of the allegations of the bill, which I am not at liberty to disregard. Mere presumptions, however strong, cannot outweigh a mass of unimpeached positive testimony.

PETITION EOE A ItE-HEATlING.

To ths Honorable the Supreme Court of the State of Missouri:

Your petitioner, W. R. Martin, by his solicitor in the above entitled cause, most respectfully solicits tlie court to grant unto him a re-liearing in said cause ; and in presenting this petition, his solicitor begs leave to premise, that he feels it his duty to your petitioner to do so. After having carefully perused the decision of the court, as well as the evidence in the cause, upon which the same is founded, he will state, that lie feels no disposition whatever to question the correctness of the decision of this court, so far as the jurisdiction of tlie Chancellor, as exercised by tlie Circuit Court in taking cognizance, &c., of tlie cause is concerned ; hut that lie feels conscious if the court in reconsidering the cause, will discard and disregard all that mass of illegal and irrelevant testimony which has found its way into the cause by ail oversight of tlie court below, upon the trial there, it is impossible, your petitioner humbly conceives, to find remaining in the record evidence applicable to the case in equity to sustain the decision.

The undersigned, as solicitor aforesaid, would respectfully insist, that the court, in deciding the cause, by all the rules of evidence (as well at law as in equity), are bound to disregard : 1st. All that testimony given in the cause with reference to the public rumor, respecting loans of negroes to his children, by the deceased in his life-time, at the time of their marriage respectively; and I understand this evidence is disregarded as irrelevant and illegal by the court in the decision rendered. 2nd. That tlie court is bound to discard the evidence with respect to all that tlie intestate said, as well as any act he did, whether in the assessment of tlie negroes in controversy for taxation, or in the payment of the taxes on the property under such assessments, under any claim or pretended claim of right thereto, whilst the same was in the possession of the said William R. Martin, as shown by the proof. Your petitioner respectfully states, that the law knows no distinction as existing in favor of the right of a father over a stranger, who is out pf possession of property, which is in the possession of tlie son, elaiming and exercising acts of ownership over it as his own, to assert that lie is the owner of it in the absence of the son, or by paying taxes on it, so as thereby to create in himself a right, or evidence of right, to the property. No sncli distinction is or can exist in law, and surely no one will contend that A. can establish his right to property in the possession of B., who is exercising acts of ownership over it as his own, *43by representing to others, m the absence of B., that the property is his, and not the property of B., or by assessing and paying the taxes on the property thus in possession of B. If such -were the law of this land, men of enterprise, with little labor and little money, in a short time could amass Tory handsome estates. If such evidence cannot be concocted by a stranger, nor by a father, so as to establish right to property in possession of a son, then, all such as is found in the record, the court is bound to close its eyes upon. It is not there in contemplation of law, and cannot be seen and will not be seen by this court. Then this drossy mass, being out of the caso, I beg leave of your honors to permit me to apply the pruning-knife to all and everything that is stated in the answers of the co-defond-ants in the cause, as well as everything they may have stated in part, as W'ell as the statements of others in derogation of the rights of my client, for the following reasons. As to the co-defendants, they are all interested, being heirs of the deceased, and would not be competent witnesses if sworn, and their answers as co-defendants cannot be read against the appellant. The statements of other persons, not on oath, are inadmissible. The record being thus cleansed, permit me to call the attention of the court to that which has a legal place in the record, as evidence, as well against as for my client. And, first, as to the evidence against him and in favor of the complainant. It consists alone in the evidence of the supposed statements of my client, who is but one witness in law, ma,de not upon oath, years ago, in alleged casual conversations, in the presence of some old woman and two or three other persons, respecting his right to the' negroes in controversy. I here beg the indulgence of the court, to permit meto cal! the attention of the court to the testimony of these few witnesses, by referring to the same at the pages in the record where the same can be readily seen by the court, and by giving an extract therefrom in this petition. See the testimony of Mrs. Craig. She testifies that some 15 or 16 years ago, she had a conversation "with appellant, at the house of witness in the presence of Moore and her husband,. and appellant asked her if Mr. Craig (her husband) paid taxes on the negroes' which were given her at her marriage by her father : Siie replied in the affirmative, and to which respondent replied, that he thought the way his father did was the best, that ins father loaned a negro to a child (not saying to him) and paid taxes on it, and if the negro died it was the father’s loss. Upon the' cross-examination of the witness, she could not recollect the year, but it was the year Moore assessed the county.

Mrs. Snell testified that her husband had been dead twelve years, and that in his life-time, long before bis death, she heard appellant tell her husband that his father did not give his children negroes, that he loaned them, and that at his death they would come back to the estate. She states, that she does not know how the conversation came up, but it was in a conversation respecting tlie taking back of the negro which the intestate had given or loaned to Mrs. Magill, then deceased. Witness, upon cross-examination states, that it has been so long since the conversation, that she can’t remember much about it. It will be evident to the court, in reading the deposition, that appellant was making a plausible excuse for his father, under the circumstances, for taking from the husband, Mr. Magill, the negro, after the death of his wife, who left an infant whom the father was about to remove with the negro to Kentucky.

Samuel Martin, jr., states that be and his father, John T. Martin, an insolvent, were going along in the road in a wagon, and that the appellant got into it and rode a little distance, and said it was a good idea, the way his father had let the children have the negroes, for if he had given them, the children might have spent them. He states that he can’t recollect the particulars, but he said it was a mighty good plan, for some, of the sons or sons-in-law, who might have spent them. That no one but him and his father were present at this conversation.

See Hawkins’ testimony. By reading this testimony, the court will see, that a difficulty had arisen some twelve or fifteen years since, and a noise was made respecting the conduct of the old man Martin having taken away the negro he had given McG-iii’s wife, who had died with her first child, and hence the noise *44and rumor about bis baying loaned instead of giving bis negroes to bis cbild-dren ; and hence tbe casual conversations, indistinctly recollected, spoken of and referred to by Mrs. Craig and Snell, in which tbe appellant was solving ■over tbe conduct of bis father, so well calculated to make a noise in tbe .neighborhood.

Tincher’-s evidence. Tie states that be bad a conversation with Wm. R. Martin at his bouse, relative to John T. Martin’s negroes. That he, witness, bad an execution against John T.’s property, which gave rise to tbe conversation. That in this conversation about John T.’s negroes, be said Capt. Jamison bad said five years’ possession would give John T. title to bis negroes.

Matthew Scott states, that be was at tbe bouse of Russell Martin, father of W. R, not a great while befiro his death, less than-two years before that time, and that he heard a conversation between them of an angry nature, about ■the negroes of William ; so much so that the witness tried not to hear it; that Wm. R. was not satisfied with the right to the negroes; that both Wm. and the old man seemed to be in a pet about it, and the old-man told Wm. R. that “if yon dont’t want to take care of and raise the negroes, send them home.”

That Wm. R. said he was not willing to feed and raise the negroes for the rest, and the old man replied as above. This conversation was about seventeen years after the negro girl came to tbe possession of William. Richard Swan testifies, that be bought a negro girl of John T. Martin, in tbe winter or spring of 1844. That the old man and John T. both signed the bill •of sale for her. lie states that lie bad several conversations with William on the subject of the title of John T. Martin to his negroes (not about William’s negroes). The last conversation was had about the time the witness was trading with John T. for the said negro. Witness told Wm. R. in this conversation,-tliat ho, witnesss, was afraid of the right of John T. to the negro, that John had told witness, when they were on a trade for the negro, that his, •John’s right, was good, and that Wm. R. (appellant) also told witness so. Witness, in this conversation, told Wm. R. that lie, witness (not William), had talked with certain counsel on the subject, and told him that John T. held (not, William) by peaceable possession. He said that five years gave right-, but that the old man’s paying taxes on the negroes, done away with or interrupted that possession, and that he (viz : the said counsel and’ not William), advised him, the witness, to have the old man’s name to the bill of sale for the negro lie ivas trading with John T. for. To what the witness, Swan, thus told William, the appellant, as to this opinion and advice of this counsel, he, William, thus replied : “That if that was the case, he, William, would give in his negroes (that is assess them) from the time himself, even if the old man did assess them.” And he further states, that he don’t know that Wm. R. said, that lie, Wm. R., held his negroes by peaceable possession. Witness further stated, that, William stated, that he did not think the witness would be in any -danger if lie took the negro without the consent of the old man (which witness had then stated to William that he would), but that as the witness was .giving the fair price for tire negro, he would get the old man’s name. Witness further states, that Wm. R. always told him,' that lie considered the right of John T. to the negro girl good, and recommended the levying of an execution upon her, and it was then thal the witness told Wm. R. of the opinion, &c., of said counsel. Witness further’ states that the old man did join John in the bill of sale for the negro, and that he paid the p-ice to John, except what was ■owing from John to him, as a debt, which was deducted, and that all the price •so paid to John, was applied in payment of John’s debts.

Complainant next offered and read the books of the assessors of Cal-laway, which show the number but not the names of the negroes assessed by the old man or William.

Elizabeth Swan, daughter of the witness, Richard Swan, in stating her recollection of what passed between the old man and Wm. R., says, that she was at the house of the old man about five years ago, and Wm. R. was there, and the assessor came there, and she heard a conversation between the old man and William. The old man gave in his negroes and William R. objected to it and complained, but the old man said, “Billy, they are my negroes, and I will *45do as I please with them.” Witness also heard a conversation between her father and William, in relation to the negroes, about four years ago, and that William was angry and complained of bis father giving in his negroes, and; stated that he had also given them in. Her father asked Wm. ft. what he had to show for them (the negroes), he replied, nothing but peaceable possession, for a long number of years, and that he would hold them in spite of the old man. Witness, on cross-examination, stated, that Wm. R. was very angry im both conversations. She says that she did' not hear Wm. R. say anything about a gift, but contended they were his negroes.

Here the court will remark, that William in this as well as the other conversations between him and his father, claimed the negroes, objected to their being assessed by the father, was angry, in a pet, and also assessed them himself, and paid taxes on them, yielding no assent to or acquiescence in the claim of the father, but on the contrary, in his father’s own house became so angry as to make unpleasant and disagreeable their conversations to one or more present at the time. It is true, that when Swan asked him what he had to show, as his title to the negroes, he responded thereto, “nothing but a long- and peaceable possession,” and which possession was acquired in such a way as all our courts in Sister States as well as this, I believe, have decided to be legal evidence of a gift. He could have responded nothing else, as a citizen, unlearned in the law as he is.

The testimony above given, if the court please, is all the evidence having the slightest bearing, to disprove the right of William to the negroes, if it be true that the old man could not manufacture, by his own acts and sayings, in the absence of William, evidence for himself. And I defy any more to be found in the record, in favor of complainant.

I will now, by the indulgence of the court, proceed to contrast the evidence of the defendant with that of the plaintiff in the manner above pursued.

There is the answer of the defendant, sworn to by him. He states-that ho was married about the 1st of October, 1828, in Kentucky, where his father then lived. That he went to and lived apart from his father a few days after h'is marriage, when ho received from his father, Hannah, who was then only about 7 or 8 years old. That his father gave her to him. That he received her as a gift, and not as a loan. That she has had 4 children. That he has raised and had the possession and services, &e., as his.own, down to the present time. And that his father repeatedly told him that he intended Hannah as a gift, and that he did not intend that she or any of her children should be taken from him. He also .states, expressly, that at the time his father delivered Hannah to him, he gave her to him, and so expressed himself at the time. This is the substance of the answer.

Then what are the faets and circumstances to corroborate the answer ? They are the following; 1st. There is no evidence showing that, at the time the old man delivered the negro to William, there was anything said by him or done by him; so qualifying the transaction as to rebut the presumption of law in favor of its being- a gift, arising from the relation of the parties, the time of the delivery, and the -other circumstances of the case. See the following authorities: 5 Monroe, 502, 503; 4 Bibb, 35; 3 Littell, 133; 3 McCord, 207, Bell v. Strawther ; 3 McCord, 506, Degraffield v. Mitchell; 1 Richardson’s S. Car. R., Eddings v. Whaley. 2nd. The negro was only 7 or 8 years old at the time of the delivery, and the old man left her in possession of the son, in Kentucky, and came to Missouri, without any evidence of any intent on the part of William to come here, and no arrangement, or guard whatever, by any step, writing or otherwise, common with men of the most ordinary prudence, to protect or secure the negro to himself, against the improvidence of a son, just named, and about to enter upon the business of life for himself, fearing no claim of the creditors of the son, &c. And not this alone. He permits the son to continue this possession peaceably, claiming her and her children as his own, for at least 18 or 20 years, before any denial of the right of the son, and then he sots up a claim, by paying taxes on her against the son’s consent, who, in the father’s house, claims the negroes, quarrels with him, even there, expressly objecting to the acts of the father in assessing or paying taxes, jtnd not one word or threat from the'father, that he would compel the son, by suit *46or otherwise, to surrender the property — ancl this adverse claim, of the same, expressly made to the father, some three or four years before his death. I will here remark, though I hold the matter out of the case, that the payment of taxes by a father for a son is nothing but natural, and in law or in reason would only create a presumption of a gift to that amount. 3rd. Overton proves that he heard the old man Martin say he had taken a negro, Woodford, one of the children of the woman he had given to John T. Martin, as an indemnity to him for money he had paid for John, both in Kentucky and in Missouri.

If the negro had belonged to the old inan and not to John, he would not have taken him on that account. This witness further testifies that he heard the old man express a wish” that his son Samuel would sell a negro which ho had received from the old man, saying that she was nothing but a post to the wife of Samuel, and this was after the witness had been talking about buying the negro of Samuel, and of which the old man was apprised. He also proves the continued possession of the negro ancl her children by William, ancl his claim of ownership of them from the beginning. He states that Sam’l Martin, speaking of the negro he was about to sell witness, spoke of her as one Ms father had given him, ancl said nothing about her being loaned to him. Witness proves, also, that Sam’l Martin, Wm. R. ancl himself married sisters ; that they were all intimate, and he never heard a rumor about the old man loaning negroes until about the time of the embarrassment of John T.

Caleb Tinsley states that ho, on one occasion, was at the house of old Martin, in Missouri, ancl saw the neg'ro, Hannah, there. She came up to him ancl spoke to him, in the presence of the old man. He asked him who she was, and the old man replied that she was “Billy’s Hannah.” This is positive evidence that the negro was the negro of William, for if he had owned her the answer would have been, “she is my girl, or negro, Hannah.”

Henry T. Wright states that ho has known the old man and his sons since 18T7. That Wm. R. was married in 1826. That the old man moved to Missouri the same fall. That previous to his removal ho placed Hannah, who was a small girl, in the possession of Wm. R. He proves the continued possession of her and"of the children which she had, some four or five in number. That Hannah was placed in Wm. R.’s possession a short time after liis marriage. That Wm. R. did not move to Missouri till the next fall after the father moved. That he heard a rumor for the first time of the old man loaning negroes to his children at the time of the embarrassment of John T. That he never heard a rumor that William’s Hannah was loaned to him until since the commencement of this suit. Never even heard one of the family speak of it, though intimate. He states that ho always heard the old man speak of the negro as “ Billy’s Hannah.” He never heard the old man speak of having given or loaned the negroes, but always of them as the children’s negroes. Here, again, is positive evidence of the old man that the negro was William’s.

There is an inventory of,the estate of the deceased, dated on the 19th of May, 1846, made out and sworn to by the complainant and defendants as administrators of the estate of the old man, in which it appears that no one of the negroes mentioned is of those in controversy. Here is evidence of a strongly negative character, furnished under the oath of the plaintiff himself, who then knew, as well as now, the negroes of his father’s estate, ancl he swears in that document, as does also the defendant, William R., that the negroes there inventoried, are all the negroes of the intestate. The law required him to make a full and complete inventory of the estate of the ■deceased, under his oath. Why did he not embrace within the inventory ■these negroes which lie now sues for ? He has shown no reason, nor can he .show any.

The above is, in substance, the evidence given on the part of the defendant, leaving out all the evidence of a character as rebutting evidence, to that which I consider inadmissible ancl irrelevant as given by the complainant.

The undersigned has collected, in the above sketch, what he believes to be all the legal evidence given in the above cause, on either and both sides of tlic .cause, ancl humbly conceives that when applied to the issug in the cause, upon *47tlroso principles which govern courts of equity in their practice, clearly and manifestly show that the appellant is entitled to a decree against the appellee.

Your petitioner insists, that unless the plaintiff can invoke to his aid what he said and may have represented respecting his having loaned the negro, or what he did in the assessment and payment of the taxes upon the negroes, as mentioned in the record, there is not one particle of evidence in his favor, except the evidence gotten from the mouth of my client, the only witness, made, if at all, in casual conversation, when not on oath, and a long time since, in the presence of two old women and some two or three other persons, in no one of which conversations did he state that the negro, Hannah, was loaned to him and not given him, as stated in his answer, but in some two or three conversations, viz: in the presence of Mrs. Craig, Mrs. Snell and Samuel Martin, jr. They make him in substance eulogize or commend the way or plan of his father in loaning his negroes to his children, saying nothing about Ms own negro. These statements, the court will perceive, hy examining the depositions referred to, were made, if at all, some 15 or 16 years since, about the time when the old man’s daughter, Mrs. Magill, died, and when her husband, Mr. Magill, was going to return, with her only infant, and with the negro of his deceased wife, to Kentucky ; a course of conduct by a father-in-law, about as well calculated to create a noise in a neighborhood or surrounding community, as anything else that might occur ; and if so made, no person would be more likely to offer to an inquisitive gossip some plausible excuse than the son.

The controversy and objections made by Win. R., and the conduct of the father at his own house, show that there was no recognition by Wm. R. of the right of liis father to the negroes. On the contrary, the disapprobation and dissent to the father’s course, could not have been more sternly or positively expressed than it was, even to a greater degree than the duty of the son to the father can well be sanctioned. No stranger, with proper feelings and common decency, couklhave been warranted in saying more or doing more in an old man’s house, had such a claim of right or such conduct been pursued towards his property. There is then surely no admission, nor any acquiescence on the part of William, in the assertion of claim, hy word pr by deed, on the part of the father. This gives rise to the consideration of what is an acquiesence by one in the claim of right to his property by another, so as to impair or affect his right. This doctrine can only exist, and is founded upon the principle, that a party having right to property permits another to hold and enjoy the adverse possession and use thereof, with knowledge on the part of the owner of such adverse enjoyment, &c., without asserting his right thereto. Such conduct oil the part of the owner, gives rise to the presumption, that the light is with the possession, and by length of lime the possession will ripen into a title, or constitute a bar to the claim of the true owner. What, I ask the court, could Wm. R. Martin have done, or what did he omit to do, more than he did, and lias always done, in support and in confirmation of liis right aiid claim to the property ? He ivas in possession; none adverse to his. He did not wish to soli the property. No damages had accrued against his father for slandering his title, nor were anjr claimed. I-Ie could not have done anything, by any proceeding- in law or in equity, which could have added to liis enjoyment of the property which lie claimed and enjoyed as his own. Such was not the condition of the father. lie acquiesced in the adverse possession of the son, and after tlio claim in his possession set- up to the property by the son, it is not a little surprising, if he had any pretense of right to the property, that he did not take some steps to assert it, or at least threaten to do so.

Another circumstance, mentioned by the court, in the decision as being of weight as evidence is referred to, that is as to tlio claim of the property by the son, being based, not upon a gift, but upon a long and peaceable possession. The court upon looking into the evidence above referred to, will see that he did hot so base his claim of right to the property, hut that, when ho was asked by a witness (old man Swan) what he liad to show for the negroes, he replied that he had nothing but peaceable possession for a number of years. Now, interpreting the words of the son as thus replied, we are bound in reason to *48suppose tliat lie meant to negative the idea that he had a bill of sale or title paper. And suppose that he did mean that he had nothing hut a peaceable possession to establish his right, taking into consideration the time he acquired it, and the circumstances of it, including the relation which he bore, &c., tO' his father, all of which necessarily form a part of the matter to he considered in deciding upon the possession, his show of title. And what presumption, X ask, can he tortured out of the response to-prove he had no title or right to the property, and to establish the right yet remaining in the father, or to prove-that the father did not intend to give the property to the son, as the law presumed he did, by sending the property home with the son at the time of his-marriage, &c., as aforesaid.

Then taking all the statements of the son, and this is all the evidence which has" any legal place in the record, and it amounts to nothing more than the statements made by the son, not on oath, and is of all evidence the most dangerous and the most likely to be misunderstood, and least to be relied upon under such circumstances as are shown in this case. It is the testimony of one witness only, the party himself, which is set up and relied upon to outweigh the answer of the same party under oath, responsive to the bill, corroborated by the statements of the father, that the negroes were the negroes of the son, and by other persons who have proven facts sustaining the same, and corroborated also by the sworn inventory of the slaves of the estate of the father, by the plnintiff himself as administrator of the estate, in which no one of the negroes sued for is mentioned.

To he distinctly and clearly understood, I beg leave to state to the court the positions I assume and most confidently rely upon. They are these .- 1st. That as. the property sued for, is now and has been for twenty years and more in the possession, &c., of Win. R. Martin, used and enjoyed by him as his own, and which was delivered to him by the father, at the time of his marriage, without any evidence showing, that at the time of delivery, the same was intended, not as a gift by the father, the law premises it was a gift, and it devolves upon the plaintiff to prove by unequivocal evidence, that it was a loan, to entitle him to a decree. 1 Richardson’s S. Car.’R. "810, SIS, ¿hidings v. Whaley ; 5 Monroe R. 502-3; 4 McCord, 239, 231, Byrd v. Ward ; 1 Ñott & McCord, 224, Brashear v. Blassingham ; 1 Nott & McCord, 224, Hat-ton v. Banks ; 4 Bibb, 85 ; 3 Litteli, 136; 3 McCord, 207 ; 3 McCord, 206. 2nd. That as the plaintiff has called upon the defendant to answer the hill of complaint, charging that thé negro was loaned and not given to tho appellant by his father, the denial of the allegation so.made by the complainant, to be taken as true, unless by two witnesses and strong corroborating circumstances, the same is proved to he false. 7 Cranch, 69 ; 2 Cond. R. 417 ; 3 Wheat., 520 ; 4 Cond. R. 311; 6 Wheat. 458; 5 Cond. R. 136 ; 5 Peters, 99 ; 1 Wash. C. C. R. 230 ; Baldwin’s R. 494. 3rd. That in this case the answers of the co-defendants admitting that their negroes, received from the old man Martin, were received as loans, is no evidence that the negro of WilliamR. was not given to him by his father, unless a father cannot give to one child and loan to another; and even if a presumption could arise that he would not so act, the fact of such lending to the co-defendants cannot he proved by their answers or admissions in this case, as they are heirs and interested as such in the estate sought to be enlarged by a decree for complainant, as administrator of the estate. 9 Cranch, 158 ; 8 Cond. R. 319 ; 5 Monroe, 411, Turner v. Holman. 4th. That the old man Martin’s statements and claim of the property, made in the absence of William, whilst the same was in the possession and use of William, from the time of his marriage, as shown in tho record, is no evidence of right or title in the old man to the property, nor was the assessment and payment of taxes by him thereon, any evidence of his right, for the reason that no man can concoct -or manufacture evidence for himself against another’s rights, either by word or deed. 5th. That in this case there is no evidence in the cause, conducing -to show that the answer is not true, except what is in tho proof given of his declarations some twelve or eighteen years since, in the presence and hearing of Mrs. Craig, Mrs. Snell and Samuel Martin, jr., respecting the loan of his negroes to his children by the old man, and that if such evidence be entitled to any weight, it and all' the other state*49ments which lie may have made, of like nature, slioulcl be received with great caution by the court, under the circumstances of this caso. See the following authorities : Bottsford v. Burr, 2 Johns. Ch. R. 411; 4 Monroe, 239, Stone, &c., v. Ramsay; 10 Ves. 517, 518, Lynch v. Lynch; 2 Barb. R. 26, 27, Garrison v. Akin. 6th. That if the court give any weight to the evidence of the loose conversations of Wm. R. Martin, spoken of by Mrs. Craig and Mrs Snell, then the court is bound, in law, to treat all he. said, though said at different times, as the testimony of only one witness, stated by him not under oath, and that in this case there are no cireumstamces proven by any legal testimony of any kind whatever, to corroborate the loose declarations alleged to have been made by the defendant, and of course, the answer must prevail. 7th. The testimony or evidence, in corroboration of the answer, independent of the answer, is stronger and entitled to moro weight than the evidence given hy plaintiff. The law presumes a gift from a parent to the child, when the property at the time of the marriage of the child, is delivered to him by the father, unless at the very time of the delivery, the same is qualified by something going to show the contrary, and in this case, nothing so appears from the record. 1 Richardson’s S. Car. R. Eddings v. Whaley; 5 Monroe, 502-3. And in this case the great length of time the defendant has had and used the property, commencing at least twenty years before the suit, when Hannah was only seven or eight years old, the raising and nursing- her children as well as herself as his servants (an instance or case of the kind rarely, if ever, before known or heard of), coupled with the fact that the old man on two or more occasions, called andspoke ©f the negroes as Billy’s (defendant’s) negroes, taken in connection with the fact that the plaintiff himself, acting as an administrator, under oath, did not inventory these negroes as of the old man’s estate, under the circumstances, with other facts showing the manifest injustice of wresting from defendant his property, are all taken together, as above stated, apart from the answer, more than sufficient to counteract the proof of complainant.

P. R. Hayden.

The questions of multifariousness and of jurisdiction having been waived in the re-argument of this cause, and nothing appearing in the record from which it can he inferred, that the disposition of the property in question, was the subject of any statotory provision in the State where it occurred, the general conclusion we have aimed at in reference to the present and kindred cases, renders it unnecessary to attempt any further analysis of the testimony than may be sufficient to demonstrate, that it is apparently incapable of rational and reasonable reconciliation, there should be a rule and there is one, which (to some extent at least) supplies the necessity of too distrustingly attempting it. That rule is furnished in the first and soundest southern adjudication to which we have been referred, being the report of the case (Carter’s Ex’r v. Ruland), decided in the Supreme Court of the State of North Carolina, toward the close of the last century, in which that tribunal lays down the doctrine intelligently and broadly, that “when a man sends property with his daughter, upon her marriage, or his son-in-law, or daughter in a short time after the marriage, it is to be presumed prima facia that the property is given absolutely in advancement of his daughter; and when the property is permitted to remain in the possession of the son-in-law for any considerable length of time, as in this case, it will be necessary to prove very clearly, that the property was only lent by the father ; and that it was expressly and notoriously understood not to be a gift at the time. The peace of families and the security of creditors, are greatly concerned in the law being thus settled.”

This original rule, as it may perhaps be not inaptly denominated,has been con formed to in many subsequent decisions in the samo and other States — 1 Taylor 143 ; 3 Iredell, 210 ; Georgia R. 1, 2, 106; 6 Ala. R. 250; 2 N. & M. 93 ; 1 McCord, 213; 2Bay, 528; 3 Hen. & Mun. 127 — unfettered by registry laws, and stands commended in the present case hy perhaps the entire array of reasons upon which it was first predicated. Here, a father was in the habit of sending home with his children, each upon their marriage, a negro slave,but in what capacity or with what intent they were thus sent or delivered, except as inferred in the *50Jaw, we hear nothing for years, and then only under such circumstances, and , apparently for such, purposes as were not calculated to elicit such mutual, fair , and full declarations as could alone (if at ah) he recurred to and repeated in such a contest as the present one. In addition to this and prominent aboye ' all, the parties and the witnesses are brothers, and relations, whose interests and whose feelings are excited and.antagoñistie, thus magnifying the reasons for which the law disfavors controversies so pernicious to morality, so unpropitious of equity in their final results and withal], and above all, so easily and so naturally avoidable, by a simple and fair declaration, at a time when, of all < others, it would seem to be suggested.

Whether the testimony upon the record sufficiently supports the assumption, that the ancestor in this ease continued to pay the taxes upon the negroes in question, or whether that, too, is left in too much doubt and uncertainty to operate as a ground of adverse title, at least for the space of two years, if not indeed until the still subsequent period, when the anticipated claims of creditors upon the negro in possession of another child, suggested the necessity of thus attempting to strengthen the general parental claim of all property, need not, we think, be hero decided. The testimony is at least explicit, that as soon as it was brought to the knowledge of the defendant, that that might be relied upon as a circumstance to overthrow the prima facia title resulting from his possession, he, too, gave in the slaves for taxation. In any view of the case, however, it seems to us scarcely conceivable or permissible, that if a prima fade legal title remitted, as wc have seen, from the unconditional and otherwise unexplained delivery of the slave, upon the marriage of the son, it could be subsequently modified or affected by what may just as well have been regarded the gratuitous payment of taxes upon it as anything else.

Supposing that the Chancellor below was uninfluenced in rendering the decree reviewing, either by the answers of the other defendants (distributees), or the testimony tending to show that loans and not gifts, had been made to the other children (all that being inadmissible as against the defendant in this suit), but that such testimony was admitted solely for the subordinate purpose which was intimated in the argument of the counsel for the appellee, it is still sufficiently perceivable, that upon the testimony legitimately entering into the main question, different minds, alike upright and intelligent, might arrive at different or diverse conclusions, as to the mere preponderance of the evidence, and decree accordingly. This consideration, however, instead of inducing us as under ordinary circumstances it would do, to leave the decree undisturbed, but the more conclusively suggests an additional reason for the judicious and self-denying application of some fixed rule, whereby to extricate property thus situated from a peril so obvious and otherwise unavoidable.

If in our own State our predecessors have not gone the entire length of the other southern benches alluded to, they have perhaps approximated it as nearly as the analogy of the respective cases would permit. In Milliken v. Greer, 5 Mo. R. 489, the negroes had been hut a year or so out of possession of the ancestor, whereas, in the cases we have referred to, as in the case at bar, the negroes had not only been sent or delivered to the child at or about the period of its marriage, without anything being said “ at the time” to otherwise denote the character of the transaction than as 'inferred and fixed in the law, hut had been suffered to remain (as is presumable from analogy), for periods covering the limitation to which the laws restricted the general admission of oral testimony. It was therefore consistently enough hoklen by this court, in the case alluded to, that such a possession “ did not amount to a gift,” blit was “ strong evidence from which a jury might well presume oneand although the Judge declared in the same casé, that “to constitute a gift there must be words or writing of the presentaneo, and a delivery of the thing given,” the declaration must of course be understood to have been predicated upon, and to apply to, the facts of the case then under consideration, for otherwise it were extra-judicial, and consequently unauthoritative. In any view of the case, therefore, it cannot be binding in a case like the present, where the analogies, and consequently the rule, are iutrinsically different.

*51It is thus inferable, that the principal difference between the majority of the former bench, and the majority of the present one, consists in part, perhaps, in the relative weight they have respectively attached to the possession of the property, under circumstances like the present, hut mainly, doubtless, in the different estimates which they have formed concerning the aggregate force and effect of the voluminous, circumstantial and conflicting testimony which is found in the record. Without intending, therefore, to render an opinion which shall imperatively close the door upon the reception and consideration of even such testimony as appears to have been received and entertained in this case, we have no hesitation in the conclusion, that in all such, the evidence competent to disprove the gift, which the law but reasonably implies from such reception and possession as is established here, should be either of the clearest, most direct and uncontradictory character, or if in any sense conflicting, that the aggregate preponderance against the continued denials of an answer, and the prima fade title established by the law, should be overwhelming and conclusive to a degree which we are unable to deduce from the record before us.