Court of Appeals of Kentucky.
Fletcher and Sharp v. Ferrel.
May 14, 1840.
ACTION: The decree of the Circuit Court be reversed, and cause remanded, that the bill may be dismissed


Where a suit in equity to recover certain slaves had been instituted, in Tennessee, in a court having jurisdiction over the parties and slaves, and a decree binding on the parties was obtained, it is equally binding on the purchaser of some of the slaves who had been brought into Kentucky and sold, while the suit was pending in Tennessee.

Mr. Turner and Mr. Owsley for plaintiffs; Mr. Cunningham for defendant.

FROM THE CIRCUIT COURT FOR PULASKI COUNTY.

JUDGE EWING delivered the opinion of the Court.
In 1791, James Norvell, a resident of Virginia, made his will, by which he bequeathed to his wife, Mary Norvell, all his slaves during her life, the remainder to his only son, William Norvell, and died shortly thereafter. William Norvell having become involved in debt, and being desirous to sell some of the slaves for the payment thereof, made an arrangement with his mother, by which he procured her to release to him her life estate, in a part of the slaves; in consideration whereof, he released to her his remainder in the residue. After which they both removed to Tennessee; where, in 1832, she made a bill of sale of her portion of the slaves to her grandson, James Norvell, and took from him his obligation to maintain her comfortably during her life.

The origin of the claims of the parties, respectively, to the property in controversy, with the history of a suit in Tennessee, on which this is founded.

Shortly afterwards, her son William filed his bill against her and his son, J. J. Norvell, setting up claim to the slaves conveyed by the former to the latter. Before the termination of the suit he died, and his second wife was appointed his administratrix; and, after reviving the suit in her name, made a compromise with J. J. Norvell, by which, in consideration of one of the slaves conveyed to her, and the payment of some of the costs, she released to him the residue.

Mary Norvell, the widow, died in 1827.

Shortly after which, to wit. on the 7th day of May, 1828, Thomas C. Norvell and Mary Moore, formerly Mary Norvell, with her husband, Matthew Moore, exhibited their bill against James J. Norvell, at Rogersville, in the State of Tennessee, charging that said slaves were conveyed to the defendant, by Mary Norvell, in trust, to be divided between them and himself and Clarinda Norvell, the four children of William Norvell, deceased, by his first wife. That Clarinda had died, and her interest had devolved on the three as survivors. That he had sold several of the slaves, and was threatening to squander away the rest; and refused to execute the trust by making the division.

Upon their bill, an injunction was granted, restraining the sale or removal of the slaves; which issued on the 8th day of May, 1828, and was executed the 28th day of June following; and James J. Norvell filed his answer on the 4th of November, of the same year.

Pending the suit, and for reasons shown to the Chancellor, he issued a restraining order, prohibiting the removal of the slaves, and requiring James J. Norvell to execute bond with security, to have them forthcoming and, in the event of his failure, requiring the sheriff to take them into his custody for safe keeping.

In contempt of the authority of the Chancellor and of his orders, James J. Norvell run the slaves across the line, into Kentucky, and left a part of them at the house of John Fletcher, in Knox county, and the others he put into a cabin on Yellow creek, in the neighborhood of Fletcher's, but in Harlan county.

All the slaves that were run across the line, eventually, came into the possession of Fletcher, except Charles, who came into the possession of Isaac Sharp.

The complainants progressed with their suit, until the May Term, 1831, when, upon a full hearing of the cause, it was decreed, "that the complainants are entitled to relief, and the allegations in the bill have been fully sustained by the proof in the cause, and it also appearing to the satisfaction of the court, that the negroes in the complainants' bill mentioned, were conveyed to James J. Norvell by his grandmother, Mary Norvell, on the express trust, that he would divide them equally between himself, the complainants, and Clarinda Norvell, deceased, and that the defendant, James J. Norvell received them from her on said express trust;" it is decreed that the master take an account of the hire of the slaves, the maintenance of the younger ones, and of the grandmother, and of the costs and expenses of defending the suit brought by Wm. Norvell, and the value of those that were sold, &c., &c., under special instructions given. And it was decreed that Isaac Vanbiber be appointed a commissioner to take said slaves into custody, and keep them until the final determination of the suit, "and all other matters and things are reversed until the coming in of the master's report."

The master having made report, and exceptions on account of two items thereof only, having been filed by the counsel of James J. Norvell--at the November Term, 1831, the exceptions were overruled by the Court, and the report received and affirmed, and the following decree made. "It is ordered, adjudged and decreed, by the Court, that the title to the slaves in the complainants' bill mentioned, be divested out of the defendant, James, and be vested in the complainants, according to the prayer of their bill, in the proportions therein mentioned. And it appearing to the court, from the statements of the parties made in open court, that they have made an agreement in writing, by which the mode and manner of dividing the property in dispute, has been adjusted by the parties, which supersedes the necessity of appointing a commissioner to divide the same, and also the necessity of making a formal decree in the case, it is ordered that the defendant pay the costs, and that the commissioner retain and sell Lucy Ann, the only slave in his possession, to pay the costs"--who was subsequently sold for that purpose.

The commissioner's report showed a balance, after all due credits, of thirty six dollars and one cent in favor of the defendant.

Immediately after the interlocutory decree, Thomas C. Norvell sold and transferred his interest in the negroes to Joseph Ferrel, and covenanted to use all lawful means to place the slaves in the hands of the commissioner. And, on the 11th of November, 1831, an agreement was made between the two Norvells and Ferrel, and reduced to writing, by which it was agreed that, the report of the Master should be confirmed, Lucy Ann surrendered up to J. J. Norvell, as his own, and the sales of three slaves, made before the suit was commenced, to Vanbiber, Hunt and Ferrel, be confirmed, without accountability on the part of J. J. Norvell for them, and one hundred and thirty dollars be paid to him, on account of his trip to Virginia, in the defence of the suit with his father; and he to be entitled to the one third of the value of the slaves which are recited to have been sold or mortgaged to John Fletcher, except old Lucy, who is surrendered up to J. J. Norvell, to be set free. And, to quiet the claim of Fletcher, it was agreed that the one hundred and thirty dollars might be paid to him, and if he received it, and Thomas C. Norvell and Ferrel procured from him an acquittance to J. J. Norvell, for six hundred and ninety dollars, for which the slaves were mortgaged or sold to him, that should be in full of his third in those slaves in Fletcher's possession. And if he refused to receive it, or to surrender the negroes, and suit would have to be prosecuted for them, then J. J. Norvell was to forfeit his one third in them, and to receive the one hundred and thirty dollars only. On the 32d of May, 1831, Moore and wife sold and transferred their interest in the slaves to T. C. Norvell; and on the 7th of June, 1832, T. C. Norvell transferred the same to Joseph Ferrel.

Fletcher and Sharp, upon the proper demand by the commissioner and Ferrel, refusing to surrender the slaves for division--on the 9th of June, 1832, Ferrel filed his bill, in the Knox circuit court, against Fletcher and Sharp, based upon the foregoing facts; charging that Lucy, Betsy, Anna, Maria, Charity, and two children of Betsy, and one child of Anna, whose names were unknown, were in the possession of Fletcher, and Charles was in the possession of Sharp; all of whom were embraced in the decree and compromise in Tennessee; and praying that the decree and compromise might be carried out and enforced, and the slaves surrendered up to him.

The bill, founded on the foregoing facts, to recover the slaves in controversy. Fletcher answered, setting up claim to those in his possession and controverting the complainant's right to relief on various grounds, which will be noticed hereafter. Answers; exhibits, and further facts relied on by defendants.

Sharp also answered, setting up claim to the one in his possession, and in like manner controverting the remedy sought; and each exhibited, with their answers, the evidences of their claim.

It appears by the exhibits, that Fletcher, on the 22d day of November, 1828, for two hundred and fifty dollars, hired Maria from J. J. Norvell, for ninety nine years, and on the 2d of January, 1829, for one hundred and eighty dollars, hired Lucy and Charity for the same term, and, on the 18th of September, 1829, for three hundred dollars, took a bill of sale for Anna, executing his bond to Norvell, binding himself to permit her to be redeemed by a given day. And that Betsey and her child, Mary, were taken back to Tennessee, an execution levied upon her and her child, under which they were sold and purchased by Fletcher, for three hundred and fifty dollars, in the year 1829.

Sharp also purchased a claim in favor of one Williams against J. J. Norvell, procured Charles to return to Tennessee, where a judgment had been recovered for the amount, when he was levied on, sold and purchaser by Sharp, for seven hundred and one dollars, in November, 1829.

At the October term of the Pulaski Circuit Court (to which the cause had been removed by change of venue,) the Chancellor decreed to the complainant, two thirds in value of the slaves, as well as two thirds of their hire, after deducting from the hire, the price of raising the younger slaves; and also the one hundred and thirty dollars mentioned in the compromise agreement, which Ferrel was decreed to pay; and appointed commissioners to take an account, and divide and deliver over, to the complainant two thirds, and to Sharp one third, of Charles, and to Fletcher one third of those charged to be in his possession, and to make a report; and the cause was continued for further decree.

Decree of Pulaski Circuit Court, and appeal.
From this decree, the defendants have appealed to this Court.

It is obvious that the purchases of all the slaves were made during the pendency of the suit in Tennessee; but the purchases of most of them were made in Kentucky.

A purchase of property, made in this state, while there is a suit in which it is involved, pending in another State, must be treated as a pendente lite purchase--by virtue of the constitution of the U. S. and the act of Congress, which provide that full faith, credit and effect shall be given, in each state, to the public acts, records and judicial proceedings of every other state. So-- Held, that, where a suit to recover certain slaves, was instituted in a court in chancery in Tennessee, which had jurisdiction of the subject matter, and in which the parties were duly bro't before the court, by personal service of its process, and a decree was finally obtained, binding upon the parties and their privies--that decree (if fairly obtained), is equally binding and conclusive on a purchaser of some of the slaves, which had been brought over into Kentucky, and sold to him here, while the suit was pending in Tennessee.

It is, therefore, the opinion of the Court, that the decree of the Circuit Court be reversed, and cause remanded, that the bill may be dismissed; and the appellants are entitled to their costs in this court.

Ky.App. 1840.
Fletcher and Sharp v. Ferrel.


     

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