Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-04-15

Opinions Of the Supreme Court Of the
state Of Tennessee, at Knoxvilfe, sep-
teInDeF Ternss 1855.


of this record, we have been anxious to find some
ground consistent with the rules Of equity practice
lon which 10 relieve complainant, and cur first i'm
pressions were, that we could do 81. But upon a
more careful inquiry into the facts and authorities
Of the case, we are satisfied we cannot.
The equity of contribution arises when several !
persons are bound by common charge not arising A
e. dect0 and their order of liability has been acc
dentally deranged. Ii the liability be joint he who
has paid more than his share is entitled to conribu
ton from the rest But this equity can never exist
il the charge be not binding or the liability arise ex
dehcto; for there can be no contribution between
wrong-doers. The reason of this is, that they may
be mtimidated from committing the wrong, BY the
danger Of each being made responsible for all the
consequences Merryweather Nixon, 8 T. r. 1856,
Peck vs. Ellis, ? J. c. R. l3l.
Now, what is the case stated in the bill for relief
and how do these principles apply TO II! 1t is, sim
ply, that in 1928, Mathew Rhea purchased of David
and Samuel Handy slave, Eliza called in other
portions Of the record Louisa, and afterwards, IN
October Of the same year, died. leaving children;
that, though his purchase of the entire proper
ty, yet his title defective, aud he only at most
acquired estate for the life Of David Handy and
others-the title to the remainder in said slave be-
ing In the children of Samuel Handy. That this
slave remained the property Of the estate until The
I'd OF June, 1885, having in the mean time had three
children, Sam, John and James, when, (the life es-
tate having termnated) they. with their mother
Eliza, and one other slave, Charles, were divided
Of Mathew Rhea, as their property though at that
very time, they belonged absolutely to the children
of Samuel Handy, who, in the year lS43, brought
suit in the Federal Court at Knoxville against COM
plainant, who is Of the children Of Mathew
Rhea, and defendant Owen II. White, who had mar
ried another child for the whole of said slaves and
in October, 1851 obtained the verdict of jury for
damages to the amount Of $3.50, the complainant
and said White, to use the language Of the bill "6e
ing thus onerdtsd for the joint act Of the lohOle Of The
fI5faao grifb CrfI fir of1
grOss."
/, This verdict, upon an application for trial.
was reduced by remiti1e to $4,000 for which
a judgment was rendered; and the whole Of
which, with costs, complainant has paid, the said
White being unable to pay anything.
The object Of the bill to have this recovery
equalized among the other five children their
tates so as to cause them to share the same with
complainant.
The bill comedies. necessarily SO, that this judg
ment was proper. And the record of the recovery
in the Federal Court which is an Indispensable link
in the cOmpainants. testimony, shows the action to
have been OUer for the wrongful conversion Of the
slaves; and that the trial was had upon the pleas of
not qtify and the statute Of limitations.
We Understand this record to be evidence against
the defendants unless it be the defendant Owen NJ.
White who party, only Of the fact OF the Jugd-
ment and Of the damages and costs recovered. l
Greene Ev. Sec 527, 53S, $50; Martin COues 2,
Dew and Bait, Il. lOl. 1t does not against them,
establish TIE superiority Of the title of Samuel Han
bvs chldrenand we cannot look INTO the dispositions
and other evidence in that cause for the purpose OF
affecting defendants they not being parties; and for
the further reason that these dispositions and this
evidence, seem to be part of the record not hav
ing been made so by bill of exceptions and though
certified in the transcript, no part of it. The
answers of defendants call IN question the title Of
Samuel Hanby's children, and upon strict law, 1t
might be difficult for complainant upon this record
to show that their recovery warranted But If
we look into the record and proof in the
Federal Court cOmplanants will not be aided.
The title Of Samuel Hanbys children was o.
record in Patrick county, Virginia, the having
been derived by deed from David Handy, in 1925,
and in the sale to Matthew Rhea in March, 1928,
and to his heirs in November Of the same year, Of
the slave Eliza David and Samuel Handy were
guilty of a fraudulent breach OF trust, having
assumed to dispose of the entire interest when it Is
manifest the title to said slave in the children Of
Samuel Handy, subject only to life estate IN David
Handy and wife King ct al. VS.. Sharp, Hum. 80.
And If we cOncCde that Matthew Bhea and his chill
dren acquired the life interest OF David Handy and
wife vet that estate ceased with the death Of the
longest liver in 1884 and the division Of Eliza and
her increase, in June, 1896 by Matthew Rheas chill
/ dren was 20 Instant, a wrongful conversion, for
which they, or any Of them might be sued by Sam
uel Hanby's children: l Dew. L. BOG Kent 323-4.
The bill and the Chalcellors decree proceed upon
this principle; and are satisfied from other facts
the recovery was so had. Tie slave Eliza in the
division. was assigned to complainant and after
that event and previous to the institution of the
suit in the Federal Court she had three other chill
drcn Joseph, Mariah and Daniel, these with the
mother and the three born before the division,
think constitute the seven slaves embraced in the
recovery. 1t not probable that it extended to
Moses and Mary, children Of Eliza, born after the
bringing of the suit in trOUeT their value appre
hend not being proper subject of inquiry in that
action: Greene Ev sec. 2T6, Wives vs.. Browning
Dew and Bait L. 23g, Bethra VS.. MCLenom / Ird.
r. 55l.
1t will thus be that to the slaves Eliza, Sam,
John and James the recovery must have been upon
the Joint conversion OF complainant. and the other
children of Mathew Rhea, growing out Of the dl-
vision and other wrongful acts antacedent thereto;
aid as to the slaves. Joseph, Mariah, and Daniel,
upon the personal and individual rrOng Of complain
ant We need but state the to see there can
be no relief 1t is not even assisted by allegation
in the bill of ignorance Of the title Of Samuel llanbys
children or that the division made in mistake.
because of any belief in the rapidity of Mathew
Rheas title if that could be Of any avail.
Some Of the authorities go so far as t. say, that
with respect to mere breaches Of trust. not lnyolv
ing any actual fraud, contribution may be had. But
we apprehend these will be found to be cases grow
lug OF the nOn-perfOrmanCe Cf civil obligation or
contracts. Such Is the case Of Lingord vs. BROMLEY,
Yes. and B. ia; also Thweat, administrator vs..
Jones, administrator, ! Randolph j2S. Where the
recovery is for tort as cOntradistnguished from
contract, ind no authority for contribution; and
Lord KnryOn, in Merryweather Nixon Says there
is none. And to the same effect Is Llngord VS..
BROMLEY.
But without further examination of this doctrine
VIC think may safely say, that recovery against
party in trOUe for Joint lcrOng, priiRd tdce at
least if not COncusively, so places him IN pdrt de-
lCtO as that he can have contribution unless he
aver and prove his innocence of the wrong; and
that is not done in this case. Thweat, administrator,
VS.. Jones, administrator. l Randolph 33s.
If a covenant for contribution or indemnity could
be allowed to prevail among joint wrong-doerS, yet
we do not see that any was made OF existed IN the
division of the slaves between Matthew Rheas dis
tributes the I'd of June 1885, that can be of any
assistance to complainant. The instrument Of that
date executed between them appears simply, to be
a quit claim deed wherein the slaves are divided,
with at most only stipulation against any claim
BY the parties their heirs, executors and assigns, and
contains no covenant Of a general warranty. The
words agree to support to each other the above
named negroes as divided above, by paying to each
other tie amount agreed on to each other SO to
make all the heirs equal in said negroes cannot as
we think, be 50 regarded. The entire phrase, as
used here. is singular and unusual. But we think
its only effect is stipulation to pay such sums OF
money as were due between the parties in order to
equalize the division and Ihatit not intended to
have any greater extent.
We furthermore think if the the law implies a
warranty of title tn the decision Of chattelS, as III
their sale, yet the implication here Is extended, as
well by force of the quit claim deed, as the express
covenants to be found therein. And so are the aU-
thorities 1t is rule that where there is anepresS
cOueR1a more limited in its nature than the cove
nant the law would imply, the implied covenant
Will be restrained bythe ualcOnsent Of both par
ties Vanderkan vs. Nanderkan IL Johns K. l22;
Kent VS.. Welch John. L. 2jg; Nokes, case I,
Rep. 81.
If the complainant. by reason of the recovery in
the Federal Court fails to get his share IN the slave
Charles still as the bill is noe framed with view
to that aspect of that and especially as 1t makes
no case Of mistake as done in the case Of Dacre
vs. Gorges, , SimOns and Stewart 454, we I'M
able to grant him relief even TO that branch Of
the case. As before remarked he does not even al
lege the existence Of an honest belief IN Matthew
Rhea title at the time the slaves were divided II
aware of its defect at the time, we perceive no
ground on which to aid HIM. 1t was incumbent on
HIM 10 make out his title to relief III his bill
The Chanceor's decree will be reversed and the
bill dismissed. WRIGHT.
\ true copy Test: c. W. NELSON, Clerk.
ARTEMUs WARD, THE SNOWMAN, on WONEN.-The
female women is ! Of the greatest institoOshuns Of
which this land kin bOste. It's impossible TO git
along without her. Had thare bCcnnO female VIM
min in the world shoOd scarcely be heere with my
,mparaleled show on this auspishus OcCashun. She /