Fowler v. Merrill,
52 U.S. 375 (1850)

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U.S. Supreme Court

Fowler v. Merrill, 52 U.S. 11 How. 375 375 (1850)

Fowler v. Merrill

52 U.S. (11 How.) 375


The Act of Congress passed on 24 September, 1789 1 Stat. 88, 89, provides that ex parte depositions may be taken before a judge of a county court.

Where a probate court is organized for each county in a state, is a court of record, and has a seal, it is sufficient if a deposition under that act be taken before a judge of the probate court.

Although the day when a mortgage was executed was not stated, yet where it bore a date in its commencement, and its acknowledgment and date of record were both given, and both of them preceded a sheriff's sale of the mortgaged property, it was certain that the mortgage was executed before the sale under execution.

Although, when the mortgage was recorded, the laws of the state did not make the mere recording convey the title when the personal property thus mortgaged remained in the possession of the mortgagor, yet they sanctioned the mortgage unless it was made without good consideration and opposed by a bona fide subsequent purchaser who had no notice of its existence.

But the fact of recording the mortgage tended to give notice of its existence, and in the present case the evidence shows that the purchasers at the sheriff's sale had notice of the mortgage.

Such purchasers must allege that their want of notice continued up to the time of making actual payment; a want of notice merely extending to the time of making the purchase is not enough. Payment might have been refused, and then they would not have been injured.

Moreover, between the time when the mortgage was in fact recorded and the time of the sheriff's sale, the state passed a law making such recorded mortgages valid.

The increase or offspring of slaves belong to the owner of the mother.

The decree of the circuit court being that the purchasers at the sheriff's sale should either surrender the property to the prior mortgagee or pay the value thereof, such value was properly computed as it was at the time of rendering the decree.

The hire of the slaves was properly charged as commencing when the prior mortgagee filed his bill for a foreclosure.

This action was a bill filed by Merrill, the appellee, against Fowler

Page 52 U. S. 376

and Badgett and other persons, under the following circumstances.

In April and June, 1837, N. L. Williams made the following notes:

"$11,428 22/100 Natchez, 1 April, 1837"

"Two years after date I promise to pay J. L. Dawson or order the sum of eleven thousand four hundred and twenty-eight dollars and twenty-two cents, value received. Negotiable and payable at the Planters' Bank of Mississippi, Natchez."

"[Signed] N. L. WILLIAMS"

"$1,150 Natchez, 1 June, 1837"

"Twelve months after date, I promise to pay J. L. Dawson, or order, eleven hundred and fifty dollars, value received, negotiable and payable at the Planters' Bank of Mississippi, Natchez."

"[Signed] N. L. WILLIAMS"

Making together the sum of $12,578.22.

These notes, endorsed by Dawson, were also endorsed by Merrill, and discounted for Dawson's use by the Planters' Bank of Mississippi at Natchez.

In order to secure Merrill, Dawson executed a mortgage to him of certain negroes then on the plantation of Dawson in Arkansas. There were nine negro men, six women, and three boys included in the mortgage. As this mortgage was much discussed in the argument, it is proper to give its commencement and acknowledgment:

"This indenture, made this 25 November in the year of our Lord 1837, between James L. Dawson, of the County of Jefferson, State of Arkansas, of the one part, and A. P. Merrill, of the City of Natchez, State of Mississippi, of the other part, witnesseth that the said James L. Dawson, in consideration of the debt to be secured, hereinafter mentioned, and of one dollar to him in hand paid by the said A. P. Merrill, the receipt whereof is hereby acknowledged, doth give, grant, bargain, sell, and convey unto the said A. P. Merrill, the following-described negroes, now on the plantation of the said James L. Dawson, known by the name of Woodstock, lying in the County of Jefferson, State of Arkansas, viz.,"


"To have and to hold the said negroes unto the said A. P. Merrill, his heirs and assigns, to the only proper use of the said A. P. Merrill, his heirs and assigns forever. Provided that if the said James L. Dawson, his executors and administrators

Page 52 U. S. 377

or either of them do pay or cause to be paid unto the said A. P. Merrill, his executors, administrators, or assigns, the just and full sum of $12,578.22, as mentioned in two certain notes of the following tenor, viz., No. 1, drawn by N. L. Williams, dated 1 April, 1837, at two years, for $11,428.22; 2 do. do., 1 June, 1837, twelve months, $1,150, endorsed by J. L. Dawson and A. P. Merrill, and payable at the Planter's Bank of Mississippi, Natchez, then these presents to be void, and the said James L. Dawson doth covenant with the said A. P. Merrill that he, the said James L. Dawson, his executors, administrators, or assigns, shall and will pay or cause to be paid to the said A. P. Merrill, his executors, administrators, or assigns, the said sum of $12,578.22 as aforesaid on the day above limited for the payment thereof."

"In testimony whereof the said James L. Dawson has hereunto set his hand and seal the day and year above written."

"[Signed] JAMES L. DAWSON"

"Signed, sealed, and delivered in the presence of ________."

"State of Mississippi, Adams County"

"Personally came before me, judge of the probate court in and for the county aforesaid, the within-named James L. Dawson, who acknowledged that he signed, sealed, and delivered the within instrument in writing, as his act and deed for the purposes and intents and on the day and year therein mentioned."

"Given under my hand and seal, this 24 November, A.D. 1837."

"C. RAWLING, Judge of Probate"

On 29 December, 1837, this mortgage was recorded in Arkansas.

On 12 March, 1841, the President and Directors and Company of the Commercial Railroad Bank at Vicksburg, suing for the use of William W. Frazier, Thomas E. Robbins, and William S. Bodley, obtained a judgment against Dawson in the Circuit Court of Pulaski County (state court) of Arkansas. The amount of the judgment was:

Debt . . . . . . . . . . $ 9.688.00

Damages. . . . . . . . . 1,065.00

Costs. . . . . . . . . . 8.95



On 24 April, 1841, a fieri facias was issued upon

Page 52 U. S. 378

this judgment, and levied upon certain lands and eleven of the negroes mentioned in the mortgage.

After an alias writ, the property was exposed to sale on 11 October, 1841. Fowler became the purchaser of some of the negroes, and on the next day the sheriff executed a deed to him, reciting the judgment and execution, and concluding thus:

"Now know all men by these presents, that I, John J. Hammett, as such sheriff as aforesaid, for and in consideration of the premises, and for and in consideration of the said aggregate sum of $2,966.66 2/3, to him, the said John J. Hammett, as such sheriff, in hand paid by the said Absalom Fowler, the receipt whereof is hereby acknowledged, have granted, bargained, sold, and delivered, and do hereby grant, bargain, sell, and deliver, all of said slaves above described to the said Absalom Fowler, hereby conveying to him, and to his heirs and assigns forever, all of the right, title, estate, interest, claim, and demand of the said James L. Dawson, of, in, and to the same. Not making myself hereby responsible for the title of said slaves, but only conveying, as such sheriff, the title of the said James L. Dawson in and to the same."

"Signed, sealed, and delivered, this 12 October, A.D. 1841. Interlined on second and third pages before signed."


"Sheriff of Jefferson County, Arkansas"

Badgett subsequently purchased some of these slaves from Fowler, and other persons, who were made defendants in the bill filed by Merrill, were purchasers at the sale.

On 4 March, 1842, Merrill paid the notes of Williams, which had been discounted for Dawson's use by the Planters' Bank of Mississippi.

On 7 September, 1842, Merrill filed his bill in the Circuit Court of the United States for Arkansas, against the following persons -- viz.,

"James L. Dawson, who is a citizen of the State of Arkansas, but now temporarily residing in the Indian country west of the State of Arkansas, James Smith of Arkansas County, William Dawson of Jefferson County, Samuel C. Roane of Jefferson County, Samuel Taylor of Jefferson County, Nathaniel H. Fish of Jefferson County, Garland Hardwick of Jefferson County, Absalom Fowler of Pulaski County, Noah H. Badgett of Pulaski County, and all of whom are citizens of the State of Arkansas, and Sophia M. Baylor, who is a citizen of the State of Arkansas, but now

Page 52 U. S. 379

temporarily residing at Fort Gibson, in the Indian country, west of the State of Arkansas."

The bill stated circumstances mentioned above, and then averred that the defendants purchased the slaves with notice of the mortgage. It then specially interrogated Fowler and Badgett, among other things, as to whether they ever had actual notice of the mortgage, and if so, when; and also as to the value of the slaves at the time they came into their possession, and their value at the time of filing the bill; and as to the worth of their services or hire after they came into defendants' possession, and whether Jackson and other children were the issue of the mortgaged slaves; also as to the identity of the slaves themselves.

Defendants answered, setting up a bona fide purchase, without notice, at the sheriff's sale, and denying, as far as they knew or believed, all of the material allegations of the bill, and alleging that the mortgage was fraudulent; that Dawson had remained continuously in possession of the slaves, contrary to the terms of the deed; that they did not know whether the slaves were the same, and denied positively that Jackson was the issue of anyone of the mortgaged slaves. In response to the interrogatories as to the value, hire &c., Fowler answered, that Eliza, one purchased by him, and sold to Badgett, died before the commencement of the suit; that at the time he purchased them, they were worth about what he gave for them, to-wit: Tom, $533.33 1/3; Phoebe and Jackson, $666.66 2/3; Mary and Henry, $500; Maria and her child, $600; Eliza, $466.66 2/3; and that, since the sale, the value of slaves generally, and these also, had depreciated at least one-fourth; and that their hire, deducting necessary expenses, was worth, per annum, for Tom $70, Maria $50, Mary $40, Phoebe $40; and for the others, nothing. Badgett answers also that Phoebe was worth $400, Eliza $350, Jackson $65, and that Eliza had died &c., and that their hire was not worth more than $40 per annum.

The valuation preparatory to the sheriff's sale was as follows:

Valued at Sold for

Tom . . . . . . . . . . . . $ 800 $533.33

Phoebe and Jackson. . . . . 1,000 666.66

Mary and Henry. . . . . . . 750 500.00

Maria and her child . . . . 700 600.00

Eliza . . . . . . . . . . . 700 466.66

It is not necessary to trace the progress of the suit through

Page 52 U. S. 380

its various steps. Many depositions were taken under a commission and otherwise, and exceptions to their admissibility filed. One of them, which is the subject of a part of the opinion of this Court, will be particularly mentioned for that reason. The point, as raised and decided in the circuit court was as follows:

"The fourth exception is"

"that the deposition of Henry D. Mandeville, taken at Natchez, on 8 March, 1845, was taken without any sufficient notice having been served on said defendants of the time and place of taking the same."

"The answer to this exception is that where a deposition is taken, according to the acts of Congress, at greater distance from the place of trial than one hundred miles, no notice is required. By the certificate of the magistrate before whom the deposition was taken, it appears that the witness lives more than one hundred miles from this place; that his certificate is competent evidence of the fact is established by the adjudication of the Supreme Court in the case of Patapsco Insurance Company v. Southgate, 5 Pet. 604, 30 U. S. 617. The Court said:"

" It was sufficiently shown, at least prima facie, that the witness lived at a greater distance than one hundred miles from the place of trial. This is fact proper for the inquiry of the officer who took the deposition, and he has certified that such is the residence of the witness. In the case of Bell v. Morrison, 1 Pet. 356, it is decided that the certificate of the magistrate is good evidence of the facts therein stated, so as to entitle the deposition to be read to the jury."

"This exception is overruled."

"The fifth exception is to the competency of the evidence contained in the deposition of Mandeville. The decision of this exception will be reserved to the final hearing."

"The sixth exception is to the authority of the magistrate before whom Mandeville's deposition was taken. It was taken before Thomas Fletcher, Judge of the Probate Court within and for the County of Adams and State of Mississippi, and the inquiry is whether he is authorized by the acts of Congress to take depositions. By the 30th section of the Judiciary Act of 1789, depositions de bene esse may be taken before any judge of a county court of any of the United States. Is Thomas Fletcher a judge of a county court of any of the United States? In order to decide this question, we must look into the laws of the State of Mississippi. That this court is bound to take notice of the laws of Mississippi is clearly settled by the Supreme Court of the United States in the case of Owings v. Hull, 9 Pet. 625. The Court said that the laws of all the states in the Union are to be judicially taken notice of, in the

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same manner as the laws of the United States are to be taken notice of, by the circuit courts of the United States. Looking, then, into the laws of Mississippi, we find a court of probates established in each county of the state, with jurisdiction in all matters testamentary and of administration of orphans' business, in the allotment of dower, in cases of idiocy and lunacy, and of persons non compos mentis, see § 18 of the 4th article of the Constitution, and the acts of the Legislature of 1833, law 444. By the fourth section of the act it is provided that the court of probate in each county shall procure a seal for said court, thereby constituting it a court of record."

"The question then is is this a county court? It is a court of record established in each county in the state, and styled 'the Probate court of the County of _____.' I am clearly of opinion that it is such a county court as is contemplated by the act of Congress, and that depositions may be taken before the judge thereof. The deposition of Mandeville is a deposition taken de bene esse, and may be read on the final hearing unless the defendant shall show that the witness has removed within the reach of a subpoena after the deposition was taken and that fact was known to the party, according to the decision of the Supreme Court in the case of Patapsco Insurance Company v. Southgate, 5 Pet. 617. This exception is therefore overruled."

Roane and others of the defendants made a compromise with Merrill, which was sanctioned by the court, and the bill was dismissed as to Sophia M. Baylor.

On 23 August, 1847, the circuit court made a long explanatory decree, of which the following is the conclusion:

"This cause came on to be heard at this term, and was argued by counsel, and thereupon, upon consideration thereof, it was ordered, adjudged, and decreed as follows, to-wit: that the bill as to the defendant Sophia M. Baylor be and the same is hereby dismissed with her costs, to be paid by her to the said complainant. And it is further ordered and decreed that unless the sum of $18,934 shall be paid or tendered to the said complainant or his solicitor by the remaining defendants, or any or either of them, on or before the first day of the next term of this court, they, the said defendants, are from thenceforth to stand absolutely debarred and foreclosed of and from all right, title, interest, and equity of redemption of, in, and to the said mortgaged property in the bill mentioned, and a sale of said mortgaged property decreed, if a sale thereof shall be deemed expedient by this Court. And the question of hire of the mortgaged property, of costs, and all other questions in the

Page 52 U. S. 382

cause not now decided, are reserved to the further decree of this Court."

"And it is further ordered that this cause be and the same is hereby continued until the next term of this Court."

"At the next term of the court a final decree was passed, fixing the value of the slaves and their hire, sanctioning the compromise made by some of the defendants, ordering a restitution of the slaves held by the rest, or, in case of neglect or refusal to restore, holding them responsible for the assessed value of such slaves."

Fowler and Badgett appealed from this decree to this Court.

Page 52 U. S. 392

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