W. R. (William Randolph) Hill.

Reports of cases in chancery argued and determined in the Court of Appeals of South Carolina online

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granted, when the Court has rejected competent evidence ; and from the .
view which I have taken of the matter, it must be conceded that the evi-
dence of Nathan Vincent, tendered to prove declarations of Henry Davis,
consistent with what he had sworn, ought to have been admitted. But
this was an issue directed by the Court of Chancery. The object of it,
was to satisfy the Chancellor as to the truth of the fact whether Philip
James was or was not alive at the time of the complainant's intermarriage
with Col. Lyles. The verdict of the jury is the result of their opinion
upon that question. The opinion of the Law Judge is of great con-
sideration to the Chancellor. In this case he has not, as is usual,
formally reported it to the Chancery, but one of the complaints made by
the appellant, is, that he expressed his opinion too decidedly, and we are
m no doubt as to the opinion of both judge and jury. I think, too, upon
a dispassionate review of the facts as they are presented to us here, we
should, without hesitation, arrive at the same conclusion. The question
then is whether the Court will order a new trial, on the ground of the
rejection of the evidence of Nathan Vincent.

*81] COLUMBIA, JANUARY, 1533. 61

As before remarked, the object of directing an issue at *law, is to
inform the conscience of the Chancellor ; and the authorities "-0110- ^
rally agree that he may, in his discretion, grant or refuse a new trial on
account of the rejection or admission of proper or improper evidence on
the trial at law. In Pemberton v. Pemberton, 11 Yes. 52, the Ld Chan-
cellor Eldon says, he may look not only at the report of the trial at law,
but at the record of the suit in equity, and may collect what may satisfy
his conscience ; and if upon the whole, he is satisfied that justice has been
done, though he may think some evidence was improperly rejected at law,
he is at liberty to refuse a new trial. In the case of The Warden and
minor Cannons of St. Paul's, London v. Morris, 9 Ves. 169, the same
learned Chancellor asks the question — " Is the Court necessarily to grant
a new trial, if material evidence was rejected ? Or is it not at liberty,
supposing it material, to consider in what degree it is so ; and whether its
materiality is such that because it was rejected, a new trial must be granted,
even if the conscience of the Court is satisfied that the conclusion is
right ?" And he answers, "In all times, this Court in such a case as tliis
has exercised its discretion upon the whole case." He then enters into a
consideration of the question, whether the excluded evidence would or
would not have produced a different result, and a new trial was refused,
on account of the difficulties with which the case was surrounded in
making the necessary proofs. In Hampson v. Hampson, 3 Yes. &
Beame, 44, the case is put directly upon the question whether the ex-
cluded evidence would have produced a different result, and the Chancel-
lor being of opinion that it ought not, refused a new trial.

The infamy of the character of James Yessels, is such as to justify the
Court in putting his evidence entirely out of view, and I confess that in
my estimation, Henry Davis is not entitled to much more consideration.
His character at best is equivocal, and when we take into consideration
the circumstances stated by Lucy Farr, tending very strongly to show,
and from which she herself had drawn the conclusion, that he had been
suborned by Elizabeth Brown, I am constrained to say, that in ray judg-
ment, his evidence would *have been but little strengthened by the ^-^oq
questionable support it would have derived from the evidence of L
Nathan Yincent. Philip James had not been heard of in this country
for near forty years before the intermarriage of the complainant with
Col. Lyles — the defendants allege that he was then living, and it was in-
cumbent on them to prove it. The only evidence they offer of it, is of
two witnesses, whose general character and credibility is at best doubtful,
and that is opposed by the evidence of Philip James's mother ; and it is
very extraordinary if Philip James was still alive in 1817 or '18, that
some one witness of unimpeachable veracity could not in the course of
ten years' litigation, have been procured to prove it. The verdict of the
jury was founded on a belief of what these witnesses testified. The Judge
who presided at the trial of the issue at law, took the lead in it, and the
Chancellor has acquiesced, I do not think therefore, that the evidence
of Nathan Yincent, which we must assume was improperly excluded, can
vary the conclusion at which this Court would have arrived. The motioa
for new trial must therefore be refused.

On the part of the complainant, eleven different grounds have been
taken to reverse the decree of the Chancellor in relation to the matters of


account between the parties ; but before I enter upon the consideration
of these, it will be necessary to take a general view of the transactions
connected with the estate. The complainant was, herself, possessed of
a considerable estate, and shortly before her marriage with Col. Lyles,
she settled it on her daughter and only child, as stated in the answer of
Ephraim Lyles, with the knowledge and consent of Col. Lyles, and upon
an understanding that the children of each were to have their respective
estates, no children of that marriage being anticipated, being both old.
Before or about the time of their marriage, Col. Lyles executed a writing
in the form of a deed, purporting to be a marriage contract, in which he
disclaims and renounces all interest in her property or estate, and re-
serves the whole of his own for his children by a former marriage. It was
signed, however, only by Col. Lyles, nor was there any trustee to take, or
other third person named in it ; and by a decree of the Court of Appeals
in December Term, 1824, it was held that this deed was void. (Harper's
^jj.-i Eq. Rep. *295.) Upon administration being granted, Ephraim Lyles
-J possessed himself of the principal part of the personal estate, and
took upon himself to determine that this paper was valid as a mar-
riage contract, and excluded the complainant from any participation in
the estate ; and he therefore made distribution of it between himself and
the other defendants, the children of Col. Lyles. Long before the inter-
marriage of Col. Lyles with the complainant, he had made a pai'ol parti-
tion of all his real estate, amongst his three sons, James, Aromanus, and
Thomas. He put James and Aromanus into the immediate possession
of the portions allotted to them reserving to himself a life estate in that
allotted to Thomas, consisting about 320 acres, on which he continued to
reside up to the time of his death. The complainant claimed partition of
the whole, but in the judgment before referred to, it was determined that
James and Aromanus were entitled to hold under their possession, and
that Thomas was not, on account of the absence of a corresponding pos-
session. Ephraim Lyles says in his answer, that on the complainant's
going on a visit to Lexington, he placed a tenant in the house, for the pur-
pose of keeping possession of it, but he does not believe that any violence
was offered to the complainant by the tenant. This is an answer to an
allegation in the complainant's bill, that the defendants turned her out by
violence. The Commissioner reports, that there were about 150 acres of the
land cleared and inclosed, and it is inferable from the circumstances, that
the other defendants acquiesced in the claim of Thomas Lyles, and he
took possession of it, and cultivated small portions of it from year to
year. It does not appear from any thing before the Court, under what
circumstances Thomas Lyles entered, or whether he had any agency in
putting in the tenant, or in any instance denied the complainant's right,
or obstructed her entry.

In this report, the Commissioner has fixed the annual rent of the better
quality of land, what he calls cotton land, at two dollars per acre, and the
inferior quality at one dollar per acre ; and establishing ten per cent, per
annum, as the scale of the deterioration of the land, he deducts that
amount annually, so that no rent is charged after the expiration of ten
*85] 'i'^^'^^- The Chancellor has so far corrected the report, as to *direct
that something shall be allowed, even after the expiration of that

*8-3] COLUMBIA, JANUARY, 1833. 63

The first ground of the complainant's appeal, complains that this
is error, and insists that the complainant is entitled to full rent for the
whole period.

The rule adopted by the Commissioner and considered as merely arbi-
trary, is cei'tainly not sustained by any principle. The soil of this country
varies from the extremes of fertility, to the most indomitable sterility, so
that the rule in one case is wholly inapplicable to another, unless the
quantity of the land, the mode of culture, and the crops raised, corres-
pond iu every particular — in every case, therefore, the value of rent can
only be ascertained by the opinion of witnesses competent to judge, and
acquainted with the land. In this country inferior land depreciates
rapidly, under the ordinary, indeed the almost universal, mode of culture
— even the provident planter does not so husband his land as to prevent
deterioration, and a reasonable abatement ought to be made on that ac-
count, but no general rule can meet the case, and the decreased value must
be ascertained in the manner mentioned. Land rent must be worth some-
thing, as long as it is fit for cultivation. This matter must therefore be
referred back to the Commissioner.

In connection with this subject, the questions are raised, who is liable
for rent ? And to what extent is it due ?

Independently of the concession made in the answer of Ephraim Lyies,
that in the absence of the complainant he had put a tenant into the house
to keep possession of it, there is nothing to show the fact, that the com-
plainant was ousted of the possession. Houston Goree, the only witness
who speaks on this subject, says that he saw one David Dunkin living in
the house, shortly after the death of Col. Lyles, who appeared to be the
proprietor of it for the time, and thinks he heard him say, that he was put
there to keep the complainant out. But it does not appear by whom he
was put in possession, or who authorized him to prevent her entering.
The answer of Ephraim Lyles would lead to the conclusion, that he did
it ; but he claimed no interest in it. The defendants are understood to
have *acquiesced in the claim of Thomas Lyles, and he is the only p^-g^
person amongst the defendants who has had the use and enjoyment '-
of any part, and it is not probable that Ephraim Lyles would take upon
himself to incur the responsibility of turning out the complainant and put-
ting in Thomas Lyles, v/ho was as competent to act, and probably under-
stood his rights as well.

If Ephraim Lyles ousted the complainant of the possession, he is liable
for the annual rents to the extent of the complainant's interest, whether
the plantation was cultivated in whole or in part, or not at all, for to the
extent of her interest, she might have used it herself, or leased it to
another ; and if Thomas Lyles himself prevented the entry of the com-
plainant, or participated in the act of Ephraim Lyles, in ousting her of
the possession, he is liable to the same extent : but if on the contrary,
Thomas Lyles neither expelled, nor kept the complainant out, by any act
amounting to force, he is liable only to the extent to which he cultivated
the plantation, and not even in that case, to the complainant, unless he
cultivated it to an extent greater than the interest of himself and the other
defendants. As a co-tenant, he had the right to enter and use it to the
extent of his own interest, and with the consent of the other dclendants, to
the extent of their interest also. This did the complainant no wrong, it


the one third part to which she was entitled was left unoccupied, and the
possession was not withheld from her. This has been repeatedly ruled
by this Court. The case of Volentine v. Johnson, ante, 49, during this
Term, is an instance.

The questions of fact are involved in so much uncertainty that I am
unable to form any satisfactory judgment in relation to them. The evi-
dence on this part of the case appears to have been taken as long ago as
1822, and it is apparent that about fourteen pages are wanting, and it is
not improbable that the doubt in which it is involved arises out of that
cause. These questions must therefore go back to be examined and
reported on by the Commissioner, in connection with the amount of
rent. (2 Eq. Rep. 499; 4 Eq. Rep. 270.)
,::QHn In the old cases, some of which will be found in Equity *Reports,

'-J by Chancellor De Saussure, negro hire was rated at £10 for full
task hands, and £5 for half hands. In the prosperous times which suc-
ceeded the late war, and when produce sold for great price, the Courts
departed from this rule, and much higher prices were allowed in some
eases, but in the case of Moorman v. Foote and others, and Myers v
Myers, decided since the present organization of the Court, the rule was
resumed upon much consideration ; and my own experience and observa-
tion is, that it is as much as in general they are worth ; and I propose to
subjoin to this decree, an estimate upon which it is founded, (a) It never
was intended to apply, in those cases where the party accountable, came
to the possession and use of the slaves by force or fraud, but when he stood
in an amicable relation, as trustee, guardian, or executor or administrator,
bailee, &c., and is a substitute for the regular annual account which he
ought to make. The decree of the Circuit Court has allowed the com-
plainant for a part of the time $80, and for the remainder $70, for full
task male hands ; and $60 for a part of the time, and $50 for the re-
mainder, for full task females ; and in that proportion for inferior hands,
the young and the old. In the grounds of appeal, the complainant insists
that according to the evidence, even a greater sum than this should have
been allowed ; and it is very certain that the ordinary estimate of the value
of negroes's hire, sustained by innumerable instances, and actually letting
;j;gg j to hire, greatly exceeds the £10 rule, and ^occasionally, the amount
-■ claimed by the complainant, ($85 for males, and $65 for females)

(a) [ The following is the estimate referred to.]

When the case of Moorman v. Foote and others, was under consideration, I took
some pains to correct my own limited experience and observation, by inquiries
amongst the most intelligent and successful planters of the middle and up-country,
as to the value of negro hire; and from the data thus collected, I have made the
subjoined estimate. The first object of the planter, is to raise a sufficient supply of
provisions and forage for family consumption, and no more. In the middle and up-
country, the usual habit is to clothe the negroes by the labor of the females, at
times when they can be conveniently dispensed with in the field ; and upon lands
of medium quality, two bags and an half of cotton of three hundred pounds per task
hand, is regarded as a good crop, taking a series of years together, and my own
experience is, that this is a high average. I have not been able to obtain a precise
estimate of the average price of cotton for the last ten or twelve years, and have
adopted 12^ cents, as approximating it, and as answering the purpose of illustration.
Overseer's wages is a usual item of expense, and if one is not employed, the planter
himself earns it and is entitled to it. This I have estimated at $10 per hand— cal-



but the result of the estimate which I propose to make, will show that the
hirer must lose largely at those prices. Possibly one who has a planta-
tion, stock and implements of husbandry, and which must remain unem-
ployed for the want of hands, unless obtained by these means, may find
his account in paying these prices, but pursued as a system it must prove
ruinous. The counsel for the complainant has however submitted, whe-
ther this is a case for the application of the rule, and if the Court should
be against him on that question,* he asks that the value of the per- r^.nn
sonal estate and interest upon it, should be substituted in the place •-
of the account for slave hire.

The complainant charges in her bill, that she was forced out of the ad-
ministration by the defendants. But this is not conceded in the answers,
nor is there any proof pointed out which warrants such a conclusion.
The witness Houston Goree, says that he saw "Ephraim Lyles and Mrs.
Lyles jerk out of the hands of the complainant with violence, some article
of clothing made up or not," but I cannot perceive how any unfairness in
respect to the administration of the estate can be inferred from this one
circumstance. The impression which it has made upon my mind, is that
it was a controversy between two old women about some article of cloth-
ing, probably a relict, in which Ephraim Lyles suffered himself to parti-
cipate, and no more. It is no disparagement to the complainant to sup-
pose that Ephraim Lyles, as a man, was more competent than herself to
administer the estate ; and nothing unfavorable to him can be inferred
from the circumstances that he took upon himself the burthen of the ad-
ministration. It is precisely what might have been expected, and what
occurs in almost every administration where a man and a woman arc

culating the wages of an overseer of 30 hands at $300. The account then stands

The planter, for 2^ bags cotton, of SOOlbs, each, at 12i cents, , . $93 75

Overseer's wages per hand, . . . . . . . $10 00

Land rent, say 12 acres, per hand, at $1 50, . . . . 18 00

Horse hire, per hand, ........ 5 00

Wear and tear of working tools and other implements of

husbandi*y, machinery, &c., . . . . . . . 5 00

1 blanket, $2 ; 1 pair shoes,iSl 25, 3 25

Taxes, .$-1 ; physician's bill, $2, 3 00

Bagging, rope and twine, §>1 per bale, , . . . . . 2 50

Freight, per bale, $1. ... ..... 2 50

Commissions on selling cotton, 2i cents pr. cwt., . . . . 2 29 •

$51 54

.$12 21
S»2 80

Negro hire, £10=$42 86

Against the planter, ""^

Salt and other little articles of expense, which force themselves upon the humane
master, for which no certain estimate can be made, are intentionally omittod. and
in every instance I have intended to put the other expenses, founded on calculation,
something below their real estimate. If there is any thing omitted, suhsc,,uent
experience will bring it to light; the intention of these remarks being to call the
attention of the gentlemen of the law to the subject, with a view to establish a
settled rule, if that already established should prove to be incorrect.
YoL. 1—5


joined ia the administration. Divested of the inferences which are at-
tempted to be drawn from these circumstances, the case is precisely that
contemplated by the rule, so far as E])hraim Lyles is concerned. It is
the case of an administrator in possession and liable to account. But the
case is still stronger. The evidence abundantly showSj'that there was
an understanding between Col. Lyles and the complainant, at the time of
their intermarriage, that their estates were to remain and be kept sepa-
rate, and that the children of each were to inherit their respective estates
at their death. The complainant was provident enough to secure her
own estate, and the paper executed by Col. Lyles was evidently intended
to secure his also. Philip James the complainant's first husband, was
confessedly alive down to 1809 or '10, after hermarriage with both. Ken-
^Qr.-i nerly and Fennel, and his *deatli even then, is only proved by infor-
-■ mation received by his mother, who resided in North Carolina, and
who was probably wholly unknown to the defendants, and they were pro-
bably also ignorant of any clue which would lead to certainty. The
result has shown, that Ephraim Lyles acted indiscreetly in making distribu-
tion of the estate, before the rights of the parties under the deed executed
by Col. Lyles, and the fact of the death of Philip James, were judicially
ascertained ; and considering the doubt and uncertainty in which these
matters were involved, it would have been equally unwise in him to have
assumed the responsibility of letting the complainant into the partition.
Provident counsels would have suggested the propriety of postponing the
partition, until these matters were finally adjusted, and if that had been
done, the situation of Ephraim Lyles would have been precisely that con-
templated by the rule It does the complainant no wrong, that she should
be put precisely in the situation that she would have been, if the adminis-
tration had been conducted in the most proper and regular manner, and
for these reasons I am satisfied, that the case is one to which the rule is
strictly applicable.

An actual partition of the property of which Col. Lyles died possessed,
with an account of the rents issues and profits which it would have pro-
duced if prudently managed, is the strict measure of the complainant's
rights. But the defendants have made the personal estate their own by
the partition and use, and they have no right to complain, if they are
made to account for the value at the time they received it, with the in-
terest thereon, as a substitute for the hire of the negroes. The com-
plainant has thought proper to accept the value and interest, as a sub-
stitute for the property, and the issues and profits, and it does not appear
to me, that the Court can refuse to allow it. In this case there is an ad-
ditional reason — two of the defendants, it is represented, to have removed
to Mississppi, or some other of the western States with their negroes, so
that the Court has no means of making actual partition of these. Some
*9ll ^^ ^^^® negroes are said to have since died, and others may *have
been disposed of by the parties, and with respect to these, an ac-
count would be indispensable. It is therefore not only equally equitable
and just, but infinitely more convenient. The inventory and appraise-
ment of the personal estate, as far as that extends, must be taken as evi-
dence of value, as more likely to furnish the true value than any that could
be obtained at so distant a day. If there was property not included in
these, other evidence must of necessity, be furnished.

*91] COLUMBIA, JANUARY, 1833. 67

Primarily, Epliraira Lyles, the administrator, is unquestionably lialjle to
the whole amount of the complainant's rights ; but it is claimed for the
complainant, that the other defendants should be decreed to be jointly
liable with him for the whole, on the ground that there was a conspiracy
amongst them, to defraud the complainant. I am unable to perceive in
the circumstances of this case, any feature that does not ordinarily occur
in the mal-administration of an estate. As administrator in possession,
Ephraim Lyles had at that time (before the act of 1824), the absolute
power of disposition ; and there is no principle in law or equity which
would make any one else liable for the manner in which he might dispose
of it, nor can I perceive how there could be fraud in the exercise of a
legitimate right. This claim is founded on the supposed insolvency of
Ephraim Lyles. If that be true, the defendants are clearly individually
liable, for what they may have severally received over and above their
distributive share of the personal estate. They have received that which
exequo et bono, belongs to the complainant, and upon clear principles of
equity, must account with her for it.

The sixth and seventh grounds of the complainant's motion,' complain
that the decree of the Circuit Court charges the defendant Ephraim Lyles,
with a less quantity of cotton than came to his hands, and that it charges
the complainant with the value of a small amount of personal property
which she retained, claiming it as a part of her own estate, and as having
been included in her settlement on her daughter.

"Both of these questions are mere matters of evidence, *and the p^Q^,
Commissioner and Chancellor have both arrived at the same con- ^
elusion. The evidence is, at best, doubtful, and this Court does not feel

Online LibraryW. R. (William Randolph) HillReports of cases in chancery argued and determined in the Court of Appeals of South Carolina → online text (page 9 of 124)