Miller v. Jones' Adm'r

RICE, C. J.

The charge of a court must be construed in connection with the evidence in the cause ; and if, when applied to that evidence, it is correct, although as a universal proposition it may be erroneous, it furnishes no ground for a reversal of the judgment. — McBride v. Thompson, 8 Ala. R. 650 ; Berry v. Hardman, 12 Ala. R. 604; Lockwood v. Nelson, 16 Ala. R. 294. Where the facts are clear and undisputed, the court may give the law of the case as applicable to them, without hypothesis. — Williams v. Shackelford, 16 Ala. R. 318. The correctness of the decision made by this court, in reversing a judgment and remanding a cause, is not to be questioned by the court to which that cause is remanded, nor by this court when the same cause is again brought here. — Price v. Price, 23 Ala. R. 609 ; Weaver v. Weaver, 23 Ala. Rep. 788 .

When this case was previously in this court, it appeared, as it now appears in the present record, among the uncontro-verted facts of the case, that the appellee was the administrator of the estate of Jones ; that the appellant claimed the slave in controversy through Mrs. Canfield ; that the mode in which he claimed to have obtained her right to the slave, was by his purchase at the sheriff’s sale, on the 24th December, *181 1852, under an order of court made under tbe attachment, sued out by Mm against her, and levied on the slave whilst in her possession ; that the slave.had been in possession of the appellant ever since his said purchase; and that the Civil Code of Louisiana was in evidence before the jury. This court then decided, (among other things,) that if Mrs. Can-field “ actually held the possession of the slave for the estate of Jones, she would be estopped from denying the right of possession to be in that estate, because such a denial would be inconsistent with the relation she occupied”; “ that her declarations to that effect, while in possession of the property, would be evidence as to the character of her possession ; and that “ the appellant, claiming through her, and obtaining her right only, could not set up a title in a third person, at least without connecting himself with it.” — See this case reported in 26 Ala. R. 247 ; and McCravey v. Remson, 19 Ala. R. 430; Lowremore v. Berry, 19 Ala. R. 130 ; Traylor v. Marshall, 11 Ala. Rep. 458 ; Carlysle v. Patterson, 3 Bibb, 93 . This court then decided, also, that by the Civil Code of Louisiana, “ slaves without title cannot be prescribed, except by a possession of fifteen years.”

Upon the undisputed facts of the case, we think the former decision of this court in this cause, and the other cases above cited, justify and support every portion of the main charge of the court below complained of by the appellant, except the following sentence : “ That by the laws of Louisiana, on the death of a person possessed of or entitled to property, real or personal, the right to the property descended to his heirs; but the heir was not obliged to accept the succession, and the right did not vest in the heir, until he did some act accepting the succession.”

In determining whether that sentence of the charge can be made a ground for a reversal of the judgment rendered in this case, it becomes necessary to look into the Civil Code of Louisiana. According to that Code, succession signifies the transmission of the rights and obligations of the deceased to his heirs. — Art. 867. It also signifies the estate, rights and charges, which a person leaves at his death. — Art. 868. It not only includes the rights and obligations of the deceased, as they exist at the time of his death, but all that have accrued *182 thereto since thé opening of the succession, and also the new charges to which it becomes subject. — Art. 869. And it signifies also that right by which the heir can take possession of the estate of the deceased, such as it may be. — Art. 870.

Article 940 of that Code declares, that “ thou'gh the succession be acquired by the heir from the moment of the death of the deceased, his right is in suspense, until he decide whetherhe accepts or rejects it. If the heir accepts, he is considered as having succeeded to the deceased from the moment of his death ; if he rejects it, he is considered as never having received it.” Article 970 declares that “ no one can he compelled to accept a succession, in whatever manner it may have fallen to him, whether by testament or operation of law. He may, therefore, accept or renounce it.” Article 982 declares, that “ the simple acceptance may be either express or tacit. It is express, when the heir assumes the quality of heir in an unqualified manner, in some authentic or private instrument, or in some judicialproceeding. It is tacit, when some act is done by the heir, which necessarily supposes his intention to accept, and which he would have no right to do but in his quality of heir.” Article 983 is in these words : “ By the word ('act,’ used in the preceding article, is understood any writing, made with the intention of obliging himself, or contracting as heir, and not a simple letter or note, still less a verbal declaration, in which the person who is called to the succession may have styled himself the heir.” Article 984 is in these words : “ It is necessary that the intention should be united to the fact, in order that the acceptance be inferred.” Article 990 provides that, as to acts which may be differently interpreted according to circumstances, it is necessary to distinguish acts of property from acts of administration, or preservation, &c. ; and that the time when these acts are done, must also be taken into consideration. Article 991 declares, that “ acts which are merely conservatory, and the object of which is temporary, such as superintendence and administration, do not amount to an acceptance of the inheritance, unless the title and quality of heir should be therein assumed.” Article 988 shows that acts of property, which are necessary for the preservation of the thing, do not necessarily amount to an acceptance of the succession. Article 1006 provides that *183 “ the effect of the simple acceptance of the inheritance, whether express or tacit, is such that, when made by an heir of age, it binds him to the payment of all the debts of the succession, not .only out of the effects which have fallen to him from the succession, but even personally, and out of his own property, as if he had himself contracted the debts, or as if he was the deceased himself; unless, before acting as heir, he make a true and faithful inventory of the effects of the succession, as here above established, or has taken the benefit treated of hereafter.”

Our opinion is, that upon the evidence in this case, and as between the parties to this suit, the foregoing articles of the Civil Code of Louisiana warranted that sentence of the charge of the court hereinabove copied. As construed by us, that portion of the charge asserts, in substance, that by the laws of Louisiana, “ no„ one can be compelled to accept a succession”; and that, “ though the succession be acquired by the heir from the moment of the death of the deceased, his right is not vested (that is, is not freed from a state of suspension), but is in suspense, until he decides whether he accepts or reject^ it”; and that to free his right from its state of suspension and vest (that is, fix) it in him as heir, it is essential that he should do “ some act accepting the succession.” In view of the whole case, we think the jury must so have understood the charge ; and, thus understood, it asserts nothing beyond what, in substance, is justified by the articles of the Civil Code of Louisiana above set forth. The renunciation, like the acceptance, when made, relates back to, and takes effect from', the day of the opening of the succession. — Buard v. Lemee, 12 Rob. La. Rep. 243. The right to reject or accept the succession may be vested in the heir by mere operation of law, But, as long as this right to reject or accept the succession exists in the heir, and has in no manner been determined by any act of the heir, there is no accuracy in saying the succession is vested in him ; for it is a contradiction in terms to say that he may refuse to accept what the law has already actually vested in him.

But if it be conceded, that there was error in the sentence of the charge now under consideration, it is certain that the appellant was riot injured by that error ; because, under the *184 facts of this case, it was entirely immaterial whether the heirs of Jones had accepted the succession or not. Conceding that they had accepted it, yet if the slave in controversy was the property of that estate, she was only one of several slaves belonging to it; and Mrs. Canfield was only one of the several heirs of that estate, and the slaves and property of the estate were wholly undivided. And although, under the Civil Code of Louisiana, the undivided share of an heir in a succession may be seized and sold under attachment or execution, yet the seizure must be of the whole of his rights in the succession, subject to the charges with which they may be burdened ; so that, by the effect of the sale, they would be transferred to the purchaser with all the obligations of the deceased ; and the seizure and sale under attachment at the suit of a creditor, of the right and title of one of several heirs to a specific part of the property inherited by him, is, according to that Code, a nullity. — Mays v. Stroud, 12 Rob. La. Rep. 105.

If the first charge ashed by the appellant had been given as asked, it would have entitled him to a verdict, although he claimed the slave in controversy through Mrs. Canfield, and although she actually held the possession of the slave for the estate of Jones. It was, therefore, in direct conflict with the law as declared in this very case when it was formerly here, and with the -law as hereinabove declared ; and was, for that reason, properly refused, even if it was not objectionable in any other respect. It is evident that it excluded from the consideration of the jury the important question, whether Mrs. Canfield held the slave for the estate of Jones, and asserted, in effect, that the appellant, upon the facts embraced in it, was entitled to a verdict, independent of that question.

Upon the undisputed facts of the case, the former decision of this court in this cause, and the views hereinabove expressed, we have no hesitation in holding, that there is no error which did or could injure the appellant, in the explanation and qualification with which the court below accompanied the last four charges given at the request of the appellant; it being among those uncontroverted facts,'that the appellant claimed the slave through Mrs. Canfield, and there being a total absence of any evidence tending to connect him with any *185 outstanding title in Mrs. O’Donoghne or any other person.— See Traylor v. Marshal, 11 Ala. R. 458.

In the consideration of the question of the admissibility of' the inventory offered by the appellant and excluded by the court, we must not only bear in mind the issue before the jury,- but also the nature of that inventory, and ■ the state of facts in evidence at the time it was offered and.'excluded,— Lay v. Lawson, 23 Ala. R. 377. Especially we must recollect that, among the unoontroverted facts .then in evidence, was the fact that the appellant claimed- the slave through Mrs. Canfield, by his aforesaid purchase at sheriff’s salé under his attachment against her ; that there was no evidence whatever tending to show that he -had • any connection with any oht-standing title in any third person ; and that in offering the inventory, he did.not accompany it with any offer to adduce ■any evidence tending to connect him with any outstanding title. Hence, the simple question is, was the inventory, under the state of facts in evidence at the time it was offered by the. appellant, prima facie relevant, or prima facie irrelevant for Mm. It does not appear that Mrs. Canfield or the appellee was a party to it; nor that either of them had any notice of it until after the commencement of the present suit, or' any ■opportunity to.contest it. It purports to have been made under an authorization from the parish judge of the parish of East Feliciana, obtained under the petition of the widow off Jones, filed for the purpose of allowing her to renounce.thm community of acquits and gains between her and her husband',. <&c. ■ It does not mention any slave; but, after mentioning • several articles of personal property, and- stating that the* property was “ shown by Mary Jones, widow ,of the deceased'”'’ it proceeds thus : “ and there bring no other property shown,.. the inventory, amounting to eighty-eight dollars eighty-seven' and a half cents, was closed in presence of the witnesses-aforesaid.” After carefully considering the argument made for the appellant, we are unable to discover the relevancy of this inventory; and we feel bound to sustain the action of the court below in excluding it.‘ The most plausible ground in relation .to it, taken by the appellant, is, that it was-- admissible “ to show that said Isaac Jones- had no title to thq-negro sued for.” But this ground cannot be sustained, for ihiswall' *186 settled, 'that a record is not evidence of any fact which can only.be inferred from it by argument. — McCravey v. Remsen, 19 Ala. Rep. 480 . And the. inventory does not even profess to state as a fact, that said Isaac Jones owned at his death no' other property than was therein mentioned, but only that no other property was shown to the. appraisers.

The counsel, for the appellant assume, in' their argument, that two or more inventories were excluded by the court below. The one above noticed is the only .one which the record shows to have b'een excluded ; and as that'was proper-ly excluded,' of course there could be no error in excluding, the answer of the witness Fishburn, so far as it- related to it.-

In such a suit as the present, the appellate jurisdiction of this court is confined to a.revision of the rulings and action of the court below, and does not extend to a revision of the correctness of the mere results which the jury have attained from the evidence before them. If no error exists in the rulings and action of the court below, we cannot reverse the judgment, upon the mere ground that the verdict was not authorized- by the evidence, and that" the damages were excessive. Nor can we reverse the judgment, upon the mere assumption, not sustained- by the record, that 'the damages assessed include the value of the chattel sued for. • The only -remaining inquiry, therefore, in the present case, is,, whether upon the defendant’s appeal, the mere fact, that the, jury have not found .the value of the. chattel sued for, but have only said in their verdict, “ we, the' jury, find for the plaintiff, and assess the damages at twelve hundred and eighty-six 66-100 dollars,” disentitles the plaintiff to an affirmance of thé'judgment actually rendered -; a judgment not for the chattel, nor for its valué, but only for the damages assessed by the jury, and the costs.

The general rule is conceded, that the .verdict for the plaintiff, in the action'of detinue, should ascertain the value of the chattel sued for, as wéll as the damages for its detention; and that the judgment should be for the chattel, or for its value if it cannot be had, and the damages for its detention, and costs. But .the sole reason for requiring the value of the chattel to be found, which the defendant can be permitted, to 'urge as the foundation of any right in him, is, that he-may by *187 paying that value be enabled to discharge, himself from the operation of a distringas, in the event the chattel recovered is incapable of being produced.. It is only for his protection,. in such an event, that he has añy right to insist that the valúe of the chattel recovered, should be found. That, reason,does not exist in such a case as the present,- where there is no recovery of the chattel. „ He does not need any such protection in such a case.. And however wise, and promotive .’of good, in general, the, rule above conceded may be,; yet, the defendant has no right to claim that it shall.be made to-operate beyond the object of its creation. . He has full protection in the conduct of the plaintiff, who has taken judgment only for the damages and costs: who in this court insists on an affirmance, and who, by procuring an affirmance, waives and abandons all right and claim,'fouhded on said verdict,-or existing at the commencement of this suit, to the chattel sued for, and elects to take only the damages assessed and -costs.— Haynes v. Crutchfield, 7 Ala. R. 189; Bell v. Pharr, 7 Ala. R. 807 ; Buckner v. Haggin, 3 Monroe, 59.

We do not wish to be understood as intimating, that'ifie plaintiff could not successfully have prosecuted an appeal from the judgment of the. court below in this case ; nor that the defendant would not be entitled to a .reversal, on this his appeal, if the judgment had been rendered in favor of the plaintiff for the chattel sued for. Büt we do decide, that where a plaintiff brings- detinue for one chattel only, and the jury find for him, and assess the damages at a specified sum; and thereupon, a judgment is rendered in his favor, not for the chattel, nor for its value, but only for the damages -assessed,, and costs, — the defendant, on appeal, has no right to a reversal of the judgment, for the mere -omission of the jury- to find’ the value of the chattel. Such a judgment does not, and cannot, injure the defendant; and even ’if it be erroneous" the error is rather beneficial than injurious to him — in this, that, it relieves him from liability to the plaintiff for the chattel or its value, and leaves him liable only -for the damages assessed and costs. — Alford v. Samuel, 8 Ala. R. 95 ; Wilroy v. Maxey, 9 Porter’s Rep. 410 ; Elliott v. Gray, 6 Porter’s Rep. 447 Moore v. Coolidge, 1 Porter’s Rep, 280.

The appellant shows no cause for reversal of the judgment of the court below, and it must be affirmed.