Hall v. Browder's Administrators

5 Miss. 224

• Court: Mississippi Supreme Court
• Decided: December 15, 1839
• Status: Published

Opinion

Mr. Justice Smith

delivered the opinion of the court.

This was an action of trover instituted by Jno. F. Carmichael, as administrator de bonis non of Harriet Browder, deceased, in the circuit court of Wilkinson county, to recover damages for the conversion of thirty-four bales of cotton.

Christopher E. Hall, who is the appellant in this court, and who was the defendant in the suit below, filed his demurrer to the evidence adduced by the plaintiff on the trial in support of his demand, and the facts established by this evidence are stated and admitted upon the record. Upon the demurrer to the evidence there was joinder by plaintiff, and a decision of the court overruling the same. After which decision, the cause was submitted to the jury upon the evidence thus demurred to; who, having found for the plaintiff the amount of damages sustained by him by reason of the conversion, judgment final was entered for the qjnount of the verdict.

From this decision and judgment of the court the defendant has appealed, and insists before this court that there was error in the proceeding below, in the following particulars, to wit:

1. That there was error in submitting the cause to a jury upon the evidence, after overruling the demurrer; whereas the court ought to have pronounced a final judgment upon the demurrer. And 2. That there was error in overruling the demurrer to the evidence offered at the trial.

To test the correctness of the first proposition it is necessary to inquire into the object and effect of a demurrer to evidence.

A demurrer in law is the tender of an issue in law, upon the facts which have been established by the pleadings, and a demurrer to the evidence is a tender of an issue in law upon the facts established by the evidence, and by necessity involves the admission of the truth of the facts intended to be proved by the evidence. The object of a demurrer to evidence then, is to raise the question of the relevancy, or the sufficiency in law of the facts intended to be proved, and by it admitted to be true, to maintain the issue in favor of the adverse party. This proceeding exchanges the issue in fact, which is made up and closed to the jury, to an issue in law, and transfers it to the court.

It is the peculiar province of the jury, to decide upon the weight, of the evidence, in reference to the facts put in issue by the pleadings; but the necessary incidents of a demurrer to evidence super-cedes this office of the jury, and makes the determination of the issue in fact, dependant upon the decision of the question of law. It follows, therefore, as the inevitable effect of a demurrer to evidence, to which there is a joindure, that the jury are discharged from the further consideration of the issue submitted in the first instance to them. The court, therefore, erred in not rendering judgment on the demurrer, and awarding a writ of enquiry to assess the damages, consequent upon the trover and conversion, instead of submitting the cause in chief to a jury.

2d. The question of the relevancy, or o'f the conclusiveness of the facts to maintain the affirmative of the issue, being the only point presented to the consideration of the court, it will be necessary only to examine into the legal construction of the marriage contract between Browder and wife, as it will not be disputed that the appellee’s intestate possessed a life estate in the property devised to her in Butler’s will.

It was the expressed intention of the parties to that contract, that the property owned by each at the time of making and entering into the same, should be reserved to each in separate right, unaffected so far as the ownership was involved, by the marital rights, which otherwise would have attached upon the consummation of the marriage.

By a stipulation of the marriage contract it is provided, “ that as to any property acquired during the marriage, the ownership of the same and the mutual rights of the parties therein and the distribution thereof at the dissolution of the marriage, shall follow and be made according to the laws of the state, wherein the same shall be possessed,” &c. and it is further contracted « that the said Frederic A. Browder or his heirs shall not be accountable to the said Harriet, or her heirs, for any part or portion of the annual income or profits of the lands and slaves of the said Harriet, it being supposed and intended that any surplus that may exist after the necessary family disbursements, will be appropriated in the acquisition of property during the marriage.”

Had there been no marriage agreement entered into by Browder and Mrs. Hook, Browder would, by the marriage, have acquired an absolute right to all of her personal property in possession, and a right to the usufruct of her lands: that is, to a life estate therein for her life, in ease he survived her, unless there had been issue capable of inheriting, then to a life estate for his own life. But the lands as well as the personalty, a portion of the annual income of which forms the subject matter of controversy, was devised to her by the will of Butler, which vested in her only a life interest. To these lands, then, aside from the marriage contract, Browder would have acquired only a life estate for his own life, in case she survived him; and for her life, if he should be the survivor by their marriage. So far, then, as it regards the annual income or profits of Mrs. Browder’s lands, his marital rights are left by the contract, as by the laws of the land, they would have been independent of it.

Mrs. Browder died on the 11th of July, 1830; of course after the crop of cotton for that year had been planted, and as admitted, before it was gathered. The thirty-four bales of cotton alleged to have been converted by the appellant, were a part of the crop growing on the Woodstock place, at the time of her death. The question then is simply this, whether the right to the emblements vested in Browder who survived his wife, or in her personal representatives ? It is a universal principle of law, that upon the determination of a life estate, or freehold held by the husband jure uxoris-, the emblements growing upon the land vests in the husband or his representatives. See Kent. Com. p. 111.

But it may be contended that as the marriage agreement prevented the marital rights of Browder from attaching to Ms wife’s property, that therefore, he could not have a freehold estate in her lands, and that therefore he could not claim the emblements growing upon the land. But admitting that the agreement did not vest in Browder a freehold estate for the life of his wife, yet he is clearly entitled to the growing erop as the “ annual income or profits” of the land, by the terms of the agreement, if Mrs. Browder’s representatives would have been entitled to it, had no marriage intervened; and of this there cannot be a question.

We are, therefore, compelled, after the most diligent investigation, which we have been enabled to give the subject, to believe that the evidence offered by the plaintiff below, and appearing upon the record before us, was not sufficient in law to enable the plaintiff to recover.

The judgment of the circuit court is therefore reversed, and judgment final will be given for the appellant upon the demurrer.

[Note. — This cause was decided in 1835.]