
    
      MULHOLLAN vs. JOHNSON.
    
    Appeal from the court of the sixth district.
    A defendant who appears not to have been ignorant of his want of title, may be decreed to pay wages, even before the demand.
   Martin, J.

delivered the opinion of the court. The plaintiff states that he is the owner, and as such was possessed of a negro woman and her four children ; whom he bought at the sale of the estate of the late M. Martin, and the defendant has taken and refuses to deliver them back.

The defendant pleaded the general issue, and that the late G. B. Curtis, whose executor he is, was at his death, in quiet and peaceable possession of said slaves, as owner, having purchased them at the sale of the estate of the late J. M. Martin, through the plaintiff’s agency. He prayed the plaintiff might be decreed to convey them to him, and to be quieted in his possession, and have his costs, &c.

West’n District

Sept. 1823.

There was judgment for the plaintiff and the defendant appealed.

The statement of facts shew that,

The plaintiff introduced the process verbal of the sale.

R. Martin deposed, that the plaintiff has paid him the price of the slaves. Two of them are worth $12 per month, each. They were received by Curtis a few days after the sale, and have remained in his possession ever since. Curtis had a claim against Martin’s estate, and it was agreed that whatever might come to him, after the classification, would be taken in payment of the negroes. Curtis was ever anxious to give up the negroes to the plaintiff, if he would satisfy the conditions of the sale. The witness, as agent of the estate, was paid by the plaintiff. He would not have received Curtis’ claim, at one third of its amount, in consequence of the insolvency of the estate.

The parish judge deposed, Curtis bid off the negroes, but they were by his direction, entered on the process verbal, as the purchase of the plaintiff. At this time Curtis was about making a conveyance of all his negroes to the plaintiff. He was applied to, on that day, to make it, and it was made ; but whether on that or a subsequent day, he cannot tell. He understood from the plaintiff, the negroes were not paid for by Curtis, but that the plaintiff would have to pay for them—that they were purchased by Curtis, but the plaintiff would have to keep and pay for them. The plaintiff expressed his wish that the defendant, as executor of Curtis, would pay for and keep them, and the latter failing so to do, the plaintiff paid for them. This was understood from him.

It was admitted, that after the sale, the slaves were received by Curtis, and ever after kept by him.

Muncey deposed, that at the sale of Martin’s estate, a family of negroes were put up, whom he believes to be those claimed, and he understood, he believes, from a conversation between Curtis and the plaintiff, that the latter being unwilling to be surety, Curtis desired that the plaintiff might be set down as purchaser, and he (Curtis) as surety. Curtis said he had a claim against the estate, and wished to have something to hold on ; it might be a long time settling. Of all the facts, except the last, he has but a very imperfect idea or recollection.

The plaintiff has shewn a clear, legal title, and proved the payment of the price ; the defendant has certainly no equitable one. He has only the naked possession. This appears to be an attempt to compel the plaintiff to stand as surety in a contract, in which he positively refused to enter, except as a principal.

It is urged that the court erred in allowing the plaintiff wages before the legal demand. It is true the defendant was not, till then, a tortious or dishonest possessor; but the testator, when he received these slaves, knew they were not his own, and that he could not apply to his own use, the profits of their labor, without enriching himself to the injury of another, unless he made them his own, by complying with the contract. His estate is, consequently, chargeable.

It is therefore ordered, adjudged and decreed, that the judgment be affirmed with costs.

Thomas for the plaintiff, Johnston for the defendant.  