HADEN and WIFE vs. TUCKER

HADEN and WIFE vs. TUCKER. [TROVER FOR CONVERSION OF SLAVE.] 1, What title will support action. — Where a mother purchases a slave for her infant daughter, with money furnished for that purpose by the child’s grandfather, biit accepts a hill of sole to herself, the legal title Tests in her, and not in her daughter; and the fact that she objected to the hill of sale at the time, because it did not conTey the title to her daughter instead of herself, and that the Vendor then promised to execute another hill of sale at some future time, does not Tary the Aureal from the Circuit Court of Marengo, Tried before the Hon. Poetes King. This action was brought by Joseph B. Haden and Emma D., his wife, against James W. Tucker, to recover damages for the conversion of a slave named Ellen, The defendant pleaded not guilty, “in short by consent, with leave to give any special matter in evidence”; and issue was joined on that plea. The material facts of the case, as proved on the trial, are these: The slave in controversy was purchased. by Mrs, Perkins, the mother of Mrs, Haden, in 183Í), for her said daughter, who was then au infant; and the greater part of the purchase-money was furnished for that purpose, by Solomon Perkins, who was the paternal grandfather of the child. The vendor’s agent, with whom the contract was made, wrote out a bill of sale for the slave, and carried it to .Mrs. Perkins, who paid the purchase-money as agreed, but objected to the bill of sale, because it conveyed the title to her instead of her daughter; and the agent then promised that his principal should execute another bill of sale according to ber wishes. The slave remained in the possession of Mrs. Perkins, who always recognized ber as belonging to ber daughter. In 1840, Mrs. Perkins married one Woolworth ; and the slave being afterwards seized under execution against said Woolworth, a claim was interposed by Mrs. Woolworth, for ber said daughter, and bond given to try the righ t of property, Mrs. Woolworth and her husband soon afterwards removed to Texas, and the slave went into the possession of Solomon Perkins, who declared his intention to hold her for his grand-daughter. Solomon Perkins died in 1845 ; and on the division of his property in April, 1846, the slave was allotted 'to the defendant, who had married one of his daughters, as a part of his wife’s distributive share of the estate. The court charged the jury, in effect, that the plaintiffs could not recover on these facts; and this charge, to which the plaintiffs excepted, is now assigned as error, Goldthwaite, Rice & Semple, for appellants, cited Rotocm v. Hutchinson, 27 Ala. 334; Sanders v. Stolces, 30 Ala. 432; Mobile Marine JDoelc and Mutual Insurance Go. v. McMillan, 31 Ala. 721; Isbell v. Brown, 11 Ala. 1009; Smith v. Armistead, 7 Ala. 702; Belcher v. Saunders, 34 Ala. 9 ; 4 Selden, 497; 1 Greenl. Ev. 24, 211. Wi. M. Brooks, contra, cited Jones v. Trmoick, 31 Ala. 253 ; Sanford v. Howard, 29 Ala. 684; and Bill v. Thomason, 30 Ala. 444. [MAJORITY — STONE, J.] STONE, J. Only a single question has been argued, and we propose to confine our remarks to that question. The first charge given to the jury, and excepted to, raises the question, can the plaintiffs maintain the action of trover on the facts of this case, as supposed in that charge ? There is nothing in this record from which we can infer that the sale of the slave Ellen was completed, and the bill of sale afterwards executed ; and hence, we need not consider how we would decide such supposed case. On the contrary, the facts <jf the case tend to show that the parties intended that whatever contract they made should be evidenced by writing, and that they did reduce it to writing. The writing is, then, the only evidence before us of any title actually conveyed. That writing vested the title in Mrs. Woolworth, then Mrs. Perkins. This conclusion rests on the familiar principle, that when parties reduce their contract to writing, all previous negotiations are presumed to be merged in the writing. — Dill v. Thomason, 30 Ala. 444, 454, and authorities cited. But it is contended, that Mrs. Woolworth objected to the bill of sale, because it was made to her, and not to her daughter; and it was agreed that another title, directly to her daughter, the female plaintiff, should be substituted for the one then executed. This, we think, can not vary the case. Although Mrs. Woolworth objected to the title, on the ground stated, still she accepted it; and we are not informed: that it has ever been changed. The view most favorable to plaintiffs which we could take of this case, would lead us to hold, that the parties had intended to make one contract, and had made another. In such case, the unexecuted intention must yield to the contract actually made. — Sanford v. Howard, 29 Ala. 684; Mobile Marine Dock and Mutual Insurance Co. v. McMillan, 31 Ala. 722. It is manifest from what we-have said, that the evidence in this case fixes the title in Mrs. Woolworth. She alone, and those claiming in her right, could have maintained a suit for a breach of that contract; and she alone had the legal title, which was necessary to maintain the action of trover.' Whether she might have been declared a trustee, and compelled, in equity, to surrender the slave to her daughter, is a very different question, not necessary to be here decided. — See Jones v. Trawick, 31 Ala. 253; Sledge v. Clopton, 6 Ala. 589. We do not think the case of Rowan v. Hutchinson, 27 Ala. 334, when properly understood, is adverse to our rulings above. What we have said is decisive of this case, and j;he judgment of the circuit court is affirmed.