Opinion
August Term, 1850.
1. A negro slave was permitted by his master to own a horse. Afterwards the negro was sold to A, and the horse was taken to the latter's house. A directed the negro to take the horse away, and he was accordingly given to the negro's son, who was the slave of B. B set up no claim to the horse and his slave sold him to another person: Held, that A could support no action against B for the value of the horse.
2. An executor de son tort is entitled to no action.
3. One cannot be held liable as executor de son tort where there is a rightful executor, except in cases alleged to be fraudulent.
APPEAL from the Superior Court of Law of HAYWOOD; at Spring Term, 1850, Caldwell, J., presiding.
N.W. Woodfin and J. Baxter for plaintiff.
Gaither for defendant.
This is trover for a horse, tried on not guilty pleaded. The evidence was that one Love owned a slave, and permitted him to purchase a horse and use him as his own. After the death of Love his executors delivered the slave to one Prather, to whom he had been bequeathed by Love, and Prather sold and delivered him to the present plaintiff. When the slave went to the plaintiff's he took the horse with him; but, after some time, the plaintiff objected to having the horse kept there, and the slave then put him into the possession of his son, who belonged to the defendant, and kept the horse on the defendant's plantation as his own, the defendant not assuming any control over the horse. Afterwards — how long did not appear — the plaintiff borrowed the horse from the defendant's negro to drive to an adjoining county, and, on his return, he locked him up in his stable for the night. The next morning the horse was gone, and afterwards he was seen in the possession and use of the defendant's slave on his plantation for a few days, and until, in the absence of the defendant from home and without (216) his knowledge, as far as appeared, the said slave sold the horse. The plaintiff, in some short time afterwards, demanded the horse from the defendant, and then brought this suit.
The plaintiff thereupon insisted that he was entitled to a special property in the horse as the bailee of Love's executors, the owners; and further, that, if not so entitled, he had a right to the horse as the executor de son tort of Love, responsible over to the lawful executors. But the court refused so to instruct the jury, and the plaintiff submitted to a nonsuit and appealed.
There is no ground whatever for the action. If the property were in the plaintiff, there is no evidence of a conversion by the defendant, who, when the plaintiff would not let the horse stay at his house, merely allowed his negro to keep him, and set up no claim to him. Property got by a slave may, for his want of capacity, vest in the master; but, certainly, a slave cannot, by conversion, divest the property from the owner and vest it in his master, so as to render the latter liable for conversion. But the plaintiff had, in truth, neither a general nor a special property in the horse. According to his own position, the property was in Love's executors, and from them it never passed, as far as is seen; at all events, not to the plaintiff, who purchased the negro only, and not the horse. As to his being executor of his own wrong, the answer is that the law holds such an executor to many liabilities, but gives him no action; and, moreover, that one cannot be held liable as executor de son tort, where there is a rightful executor, except in cases alleged to be fraudulent.
PER CURIAM. Judgment affirmed.
Cited: McDaniel v. Nethercut, 53 N.C. 99.
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