#### *Abner D. Johnson et al.*v. *The Executors of William Lewis.*

*COLUMBIA,*

*May, 1848.*

Where one had. obtained possession of lands and negroes, not as a trespasser, but believing the right of property to be in himself; and it had been decreed that he was in possession under a contract to hold for others, to whom he should account before the Commissioner; on appeal from the decree, upon exceptions taken to the Commissioner’s report, it was *held*that he was responsible only for what was made in each year of his possession, and not for the estimated hire of the negroes and rent of the lands.

The rule is, that if one come tortiously into possession of an estate, he ought not to be spared, and ought to be charged to the extent of what it was capable of producing; but if he enter rightfully, and can show what the actual income was, that will determine the extent of his liability. The same principle ought to apply where the party in possession believed that the right of pioperty was in himself, and has been thrown off his guard, by the belief that he was not liable to account, and consequently kept no accounts.

Where a grand-father, after the death of their parents, took his grand children to his own home, and from the evidence and the circumstances, it appeared that no charge was intended to be made for their board; the Court refused after-wards to allow it.

What was intended as a gratuity cannot afterwards be converted into a charge.

It is not necessary, in his report, that the Commissioner should detail all the evidence. It is sufficient to specify so much as will enable-the Court to see with certainty the evidence upon which he acts. He is, through the medium of evidence, to certify facts, upon which the Court is to adjudicate. If either party, by exceptions, question the sufficiency of the evidence to warrant the facts so certified, the Court should have before it the means of looking into such evidence, in order to judge of the legality or sufficiency of it to sustain the finding.

In the Commissioner’s report on the exceptions, he should point to the particular evidence which has been heard by him, and on which his judgmentis based jn sustaining or overruling such exceptions. '

*158*Before*Johnson, Ch. *at Fairfield, June Fittings,*1846.

On appeal from a decree of the Circuit Court, dismissing a bill filed for that purpose, the Court of Appeals, in 1841, *held*that the property hereinafter referred to was purchased by William Lewis, the defendant’s testator, on the agreement that it was for the benefit of the family of J. R. Pickett, and according to a decretal order of the Court, made in the case, all matters of account between the parties were referred to the Commissioner to examine into and report upon. A part of the accounting was in relation to a mercantile co-paitnership between James R. Pickett and William Lewis, under the style of Pickett &. Lewis, entered into some time in the year 1817, and continuing only for a short time in active business, as by the evidence the last stock was taken in the spring or summer of A. D. 1819.

James R. Pickett, whom the complainants represent, died in thé year 1822, before there was any regular and final settlement between himself and his co-partner, William Lewis. At the time of his death, as appears from the proceedings in this case, there were debts to a considerable amount existing against the firm of Pickett & Lewis, upon the most of which judgments had been obtained and executions lodged in the lifetime of Pickett. In the early part of the year A. D. 1823, the first year after the death of Pickett, all of his property, consisting of some eighteen or twenty slaves, two tracts of land and other property, was levied on and sold by the Sheriff of Fairfield District, under these executions against himself and his co-partner. The land and negroes and all the other property so sold was bid off by Lewis, (except about .$124 worth,) who paid off the executions, and returned the negroes to the land so purchased, and upon which the widow Pickett, (daughter of testator) lived. They thus continued for about three years, after which time Lewis took them directly into his own possession. The last decree in this case set this purchase up as one in trust for the benefit of Pickett’s widow and children, and directed this accounting and a restoration of the property to the heirs of Pickett. In the accounting the complainants claimed the price of the cotton raised upon the land, and by the slaves of Pickett, for the years, 1822, 1823, 1824 and 1825, which it was proved went into the possession of Lewis, and was sold and appropriated by him to the payment of debts existing against himself and Pickett as co-partners, and for which payment he was allowed credit.

That Lewis got this cotton is not disputed ; the only dispute was in relation to the quantity. There was no evidence as to the precise amount raised, especially for the years 1823 *159and 1825. From the evidence of the produce of the years 1822 and 1824, the Commissioner placed the amount for each year at 35 bales, and ascertained the value of it by referencev to the sales of cotton made for Lewis for these years, by his factor, John Robinson of Charleston, a statement of which was in evidence.

After examining closely all the evidence on the question of hire, the Commissioner placed it at $80 per annum for men, and $45 for plough boys and $60 for women, ranking boys as men after they arrive at eighteen years of age.

There seems to be no dispute as to the number of negroes that went into the possession of Lewis. The time when some of them died was admitted, and also that several of them have run away from defendants and gone into the possession of complainants, at sundry times during this period ; the names of which, and the dates at which they left, were also admitted. One witness in his evidence furnished the ages of the several negroes in 1822, at the death of Pickett. With this evidence and admissions the Commissioner made out the number of negroes employed each year, their sort, and the amount for which the whole of them hired annually.

The land for which defendants are chargeable for rent is known in these proceedings by the names of the Brown, Lot and Woodward tracts.

The Commissioner placed the rent of the several places at the following prices. The Brown tract $1,00, the Lot tract at $1,50, and the Woodward tract at $2.00 per acre, and with these data made out a table of rent, showing the number of acres cultivated on each place each year and the price.

The credits claimed by defendants on account of overseers’ wages, taxes and raising young negroes, were considered in fixing the quantity of cotton, the rents of land and the hire of negroes.

It was inevidence that the five children of Pickett, after the death of their mother, went and lived for several years with Mr. Lewis, who fed, clothed and educated them.

The amount allowed for each child by the Commissioner per annum, during the time Lewis kept them, was seventy dollars. The time they each remained, and the amount with which defendants were credited each year on account of board-, appeared by reference to a table made out and appended to the report.

Taking the foregoing as data for the calculations, the Commissioner stated the accounts between the parties with much care and labor, and the result was, that the defendants were due to complainants the sum of eleven thousand three hundred and forty-one dollars and twenty-seven cents.

Many exceptions were taken to the report of the Commis-*160sionor, by both parties. Those involving the principles adjudicated, will be sufficiently specified in the following decree.

Clark and McDowall, for complainants.

McCall, for defendants.

Johnson, Ch. The exceptions to the Commissioner’s report, seventeen on the part of the complainants and twelve on the part of the defendants, apply for the most part to the details of the account between Pickett and Lewis, involving no principle, of law, and depending, as might be expected from the loose manner in which the accounts were kept and the length of time that has elapsed, in many instances on very doubtful and equivocal evidence. I have gone over the evidence, and although there may be instances in which the conclusions of the Commissioner might be doubted, I have found nothing that would justify me in saying that they are decidedly wrong. I propose, therefore, generally to adopt them where the questions raised depend on the facts. There are some, however, which involve principle, and deserve more particular notice. I refer particularly to the *2th*and *12th*exceptions of complainants, and the *\st*and *2nd*of defendants. *The question involved is,*whether, *in stating the account betwem the administrator of Pickett and defendants’s*testator, *the hire of the negroes and the rents of the land ought to be charged according to their estimated value ; or according to the sales of the crops.*The rule is that if one come tortiously into possession of an estate, he ought not to be spared, and ought to be charged to the extent of what it was capable of producing; but if he enter rightfully and can show what the actual income was, that will determine the extent of his liability. In the case of *llainsford*v. *Rainsford,*the latter rule was adopted under very peculiar circumstances. The defendant had kept no accounts, nor was he able to show the annual sales of the crops, but he had used great economy, practiced great industry, carefully invested all the income, and the result proved that there had been a reasonable profit, and it was held that this constituted a rule by which he ought to account.— The same principle ought, I think, to apply, where the party in possession believes that the right of property was in himself, and has been thrown off his guard, by the belief that he was not liable to account, and consequently kept no accounts. That Lewis believed that the property was in himself is proved by his conduct, and that this was not without some foundation may be fairly deduced from the circumstance, that numerically there was an equal division of the Court upon the question of right. Now I hazard nothing in saying, that not one planter in a hundred realizes annually one-half of the estimated value of the rents of his lands and the hire of his negroes, and ruin must follow when that rale of account--*161ing is adopted. The only reason given by the Commissioner for adhering to it in this case is, that he had no other data ; and although Lewis’ account of his factor’s sales was exhibited, there was no proof that he did not sell elsewhere than in Charleston. The proof is that Robinsons’ house, in Charles-Ion, were his factors, and their accounts show annual sales, and it is not often that a planter changes his factor or his market in the same season. If it had been otherwise in this instance, the complainants ought to have shown it. The position assumed by the Commissioner requires defendants to prove a negative, and this could not have been done unless they hq.d called every dealer in cotton in the State — not even then, as by possibility he might have sold to some one else. It is only necessary to look into the results of this account to show that injustice has been done to the defendants. At the time Lewis took possession of Pickett’s estate, its estimated value, all told, was, to speak in round numbers, $9000 00 — the number of workers at no time exceeding sixteen, and ranging from that down to nine, including men. women, and *boys; and*in a comparatively short time he paid debts to the amount of $10,000, and the balance found against him in this account is $11,000. No such results as this can be shown in the District from the mere operation of planting. *There*is *something wrong in this,*and the only *mode of correcting*it is, to substitute the factor’s account of sales, and I shall direct the account to be stated on that principle.

The only other exception requiring especial notice is the defendant’s ninth. The Commissioner states in his report *on*the exceptions that the note referred to was not brought to his notice until after the report was framed, but as the accounts will have to go back for a further report, he will consider this exception open for future examination.

It is ordered and decreed, that the report be recommitted to the Commissioner, and that he restate the accounts, in conformity with the principles of this decree, debiting the defendant’s testator with the factor’s account of sales, instead of the hire of the negroes and rents of the lands. All other exceptions are overruled.

The complainants moved to reverse the decree of the Circuit Court, on grounds, the following of which were considered by the Court:

*Grounds of Appeal.*

1. Because the rule laid down, in the decree, as to the mode of making up the accounts between the parties, the complainants and the defendants, is entirely erroneous, under any circumstances of the case; and diametrically repugnant to the direction given by the Court of Appeals, as to the manner in which the said accounts should be made out.

*1622. Because the Commission'er in Equity, in making up his report in the case, charged the defendants with the rents of the lands and hire of the negroes, as directed by the Court of Appeals, and the Circuit Court had no authority to direct a different mode of making up the accounts.

3. Because the manner directed by the Circuit Court, to make up the accounts between the parties, is entirely impracticable, as the testator of the defendants kept no account of his annual cotton crops; and the sale bill of his factor of the number of bales of cotton he annually sold for him, furnishes no certain evidence of the quantity of cotton he annually piade *\*and to confine the complainants to the evidence furnished by the sale bills alone, would operate as a fraud upon complainants, as it would preclude them from going into further evidence, to show the number of bales of cotton the testator really annually made.

4. Because the Circuit Court should have sustained the 9th and 10th exceptions of the complainants to the report of the Commissioner, and which exceptions relate to the rents of the lands and the hire of the negroes ; as it Avas clearly established that Lervis, the testator, was guilty of a trespass, in dispossessing Mrs. Pickett and her children of said lands and negroes. The Commissioner, therefore, should have charged the defendants with the highest rent and hire the lands and negroes were proved to be worth.

, The defendants appealed, on the ground that their exceptions should have been allowed.

Clarke and Gregg, for the motion.

McCall and DeSaussure, contra.

Dunkin', Ch.

delivered the opinion of the Court.

The decree of this Court, pronounced in May, 1841, established the contract alleged by the complainants to have been made by the testator of the defendants in 1822. The decree affirmed that, at the Sheriff’s sales of Pickett’s property, William Lewis purchased, on the agreement that it was for the benefit of the family of Pickett, whose wife was the testator’s daughter, and that, after the payment of the partnership debts of Pickett and Lewis, and the private debts of J. R. Pickett, the property should be returned to the family, Frpm the time of the sale in 1822, until the marriage of Mrs. Pickett in 1825, the property rerqained ip her- possession; William Lewis receiving the proceeds of the crops, and applying them to the payment of debts. On the marriage of Mrs. Pickett to Dr. McCullough, in 1825, Win..Lewis took exclusive pos- • session of the property. Mrs. McCullough died in 1826, the year after her marriage, and her five children, who were very young, lived for some years Avith their grandfather, the testator, ' " -

*163The Commissioner adopts the conclusion that the decree of the Appeal Court had declared the testator, Wm. Lewis, to fee a trespasser, and he infers that it was intended he should account as such. This is certainly a misapprehension. The Court held that he was in possession under a contract to hold for the benefit of Pickett’s family, and the object was to make him comply with this contract, and account as he would have accounted if he had fulfilled his engagement. The principal property, purchased by William Lewis, and for which he was thus held accountable, consisted of three tracts of land and a gang of negroes, in which there were about sixteen workers, and among them a blacksmith, two carpenters, and two boat hands. The Commissioner’s account is made up by ascertaining for how *much each negro*■could probably have been hired, and at what rate per acre the land could have been rented. The Chancellor, we think very properly, sustained the exception to this inode of raising the account. In the three or four first years Mrs. Pickett ana her family resided on the plantation, and Wm. Lewis is charged in the account with the proceeds of the cotton crop of those years. When Mrs. Pickett married Dr. McCullough, Mr. Lewis deemed it proper to take exclusive charge of the ■estate. Assuming that he was prudent and diligent, he is responsible for what was made in each subsequent year.— There may be difficulty in ascertaining this, and no specific rule can be laid down which is applicable to all cases and under all circumstances. Mr. Lewis was not an executor, whose duty required him to make annual returns to the Ordinary, nor was he such trustee as is required to account annually to the Court of Equity, but he should have kept such accounts as would enable him to show satisfactorily the manner in which he has discharged his trust. Having failed *■to do so, the Court is*obliged *to*resort to such *testimony as*the circumstances afford. In respect to the cotton crop the t iourt sees no reason to object to the mode adopted by the Commissioner, for the years 1822, ’23, ’24, and ’25, and the same principle may be applied to the subsequent years, varying the amount according to the testimony. But it may be, and it was so urged by the complainants, that there were other sources of profit which should be taken into consideration in estimating the annual value. It was said there were carpenters and a blacksmith which were hired out, or were employed about the business of Mr. Lewis, and boat hands who were employed in the same way — all this, and any other source of profit, should be estimated by the Commissioner, and should be charged in the account.

The Court has declined to sanction the measure or mode of accountability adopted by the Commissioner, because the defendants’s testator did not hold the negroes under a contract *164of hiring, nor did he hire out the gang of negroes or the lands to third persons ; nor was it his duty to do so — on the contrary, it was understood that they were to be kept together, and Mr. Lewis acted on this understanding. There are advantages in the improvement of the condition of the property, which more than compensate for the diminished money income, and trustees should be encouraged to keep the estate together when it is thus situated. But there are advantages beyond the mere improvement of the property. While Mrs. Pickett and her children resided on the place, they derived their support from it, without any diminution of the income. And this brings the Court to the consideration of the complainant’s exception, in relation to the board of J. R. Pickett’s children. He died in 1822, leaving five children, to wit: four daughters, the eldest of whom was ten years of age. and one son, an infant. On the death of their mother, four years afterwards, 1826, their grandfather, instead of leaving them with their stepfather, or on the plantation with an overseer, kindly and naturally took them home. *“*Mr. Lewis,” says one of the witnesses, (George S. Peay,) “was as wealthy as any man in his section of the country, except Col. Peay or Reuben Harrison.” The eldest daughter was married in 1832, the second in 1833, and the three other children left him in 1836. They never went to any other than a neighborhood school. The question arising out of the exception, is whether Mr. Lewis is entitled to any, and if any, what, charge for the board of his grandchildren while with him. From what has been said it is quite manifest that, for the ordinary means of livelihood, the children were entitled to depend on the productions of the property which belonged to them, and which do not affect the income. In this way they had been hitherto supported, and, so far as can be ascertained, without charge. Evidence was offered as to the price at which each of these children could have been boarded out. But this assumes that the person who takes them to board furnishes everything, provisions, &c., and moreover that he makes a profit from it. And this leads to the inquiry whether Mr. Lewis, when he took the children home on the death of his daughter, intended to charge them board, or acted from the impulses of his heart, and voluntarily assumed the place of a parent to the orphan children. If it was intended as a gratuity it is hardly necessary to say that it cannot after-wards be converted into a charge. It is not enough to say that he found his benevolence misplaced, and that the objects of his bounty proved ungrateful. If, from the circumstances of the case, it is manifest that he received and entertained them, intending to make no charge, he must be satified with the reward of an approving conscience.

There is no evidence whatever that Mr. Lewis ever con*165templated such charge until long after his grandchildren had left him, or until the rupture between them and himself.— The estate of Pickett was much involved, and in no view that can be taken of the accounts, was it disembarrassed until after his children had left their grandfather in 1836. According to the mode of accounting adopted by the Court, Mr. Lewis is placed in the favorable condition of the owner of an estate, setting forth the profits of if. All the ordinary sources of maintaining a family, in the condition in which the children of Pickett were maintained, are derived, or might be derived, from the plantation, and for the other comparatively inconsiderable expenditures, if any such were incurred, the Court is of opinion, on the evidence and the circumstances, that no charge was intended to be made, and should not, therefore, be now allowed. On all the other points considered in the decree of the Circuit Court, and ruled by that decree, this Court concurs in the judgment of the Chancellor.

12 Eng. C. G. 32‘

The Court avails itself of this occasion to make an observation in regard to the practice in the Commissioner’s office. There are twenty-nine exceptions to the Commissioner’s report, seventeen on the part of the complainants, and twelve on the part of the defendants. The evidence comprises about two hundred pages of closely written foolscap paper. Now the duty of the Commissioner, in such cases, is well stated in *Johnston*v. *Reardon.*“It is not necessary in the report to detail all the evidence. It is sufficient to specify so much as will enable the Court to see with certainty the evidence upon which the Master acts. The Master is, through the medium of evidence, to certify facts upon which the Court is to adjudicate. If either party, by exceptions, question the sufficiency of the evidence to warrant the facts so certified, the Court should have before it the means of looking into such evidence, in order to judge of the legality or sufficiency of it to sustain the finding.” In the Commissioner’s report, on the exceptions, he should point to the particular evidence which has been heard by him, and on which his judgment is based in sustaining or overruling such exceptions, it is in cases of the character now under consideration, that a report on the exceptions is particularly necessary, as the Commissioner, who is familiar with the testimony, however complicated and voluminous, may easily classify and arrange it for the inspection and examination of the Court.

It is ordered and decreed that the decree of the Circuit Court be reformed, and that the account be restated by the Commissioner according to the principles herein before declared and prescribed.

Johnston, Ch. Caldwell, Ch. Dargan, Ch. concurred.

*Decree modified.*