Dixon v. Warters, 53 N.C. 449, 8 Jones 449 (1862)

June 1862 · Supreme Court of North Carolina

53 N.C. 449, 8 Jones 449

RICHARD DIXON v. JAMES R. WARTERS.

A report by a commissioner, in equity, dividing slaves among tenants in common, followed by a decree confirming tbe same, passes the right of property from the date of the report, and will enable a party, acquiring such right, to maintain trover for a conversion between the date of such report and the final decree.

Meld further, that all the parties to a suit for the partition of property are. es-topped to deny the right of their fellow-takers under such decree.

Action of trover for the conversion of a female slave, tried before Osborne, J., at the Spring Term, 1861, of Greene Superior Court.

Benajah Dixon, by his last will and testament, gave all his oroperty to his wife, Mary, to divide among his children, and It is admitted that the slave, in question, was a part of ,hat property. Mary, the widow, under the provision of the will, above mentioned, divided the estate, consisting of -:1aves, money, &c., among the several children of the said Benajah, under which division, the slave in question, was, by deed', assigned to the defendant’s wife; but after Mrs. Dixon’s death, a bill in equity was filed by Robert Dixon and others, children of the same Benajah, against the defendant and his wife, who was one of the said children, and other chilof the same, to set aside the division that had been made by Mrs. Dixon in her life-time, on the ground, that it was unequal between the children. The defendant and his wife were regularly made parties to this suit. Under an order of the Court, commissioners were appointed to divide the said property, and it was ordered that the slaves should all be brought forward for that purpose. This was done, and the slave, in question, in the new apportionment was assigned to the plaintiff. The report of the commissioners was made to the Court and confirmed. After the apportionment was made, but before the term of the Court, at which the report was confirmed, the defendant sold the slave for the purpose of defeating the plaintiff’s claim. '

There was evidence of a demand and refusal. The Court was of opinion^ and instructed the jury, that the defendant was estopped by the proceedings in the Court of Equity, and that on the testimony offered, the plaintiff was entitled to recover. Defendant’s counsel excepted.

No counsel appeared for the plaintiff in this Court.

J. W. Bryan and McRae, for the defendant.

Manly, J.-,

It will be seen by reference to the case transmitted to this Court, and to the papers therein referred to, that a controversy in relation to the division of the estate of Benajah Dixon arose among the legatees, which was settled by a bill in equity. To this bill, both the plaintiff and defendant were parties as legatees. The slave, in question, had been a part of the estate of the said Benajah, and was decreed, upon the final hearing of the bill, to belong to the plaintiff. The parties are unquestionably estopped by the decree. ' The rights of property, as declared under it, are conclusive upon them, until it is reversed; “ res adgudicata est, et interest reiptiblicos utjmis sit litiumP .

We do not now enter into any examination of the justice and propriety of the proceedings and decree in equity. These cannot be enquired into in this action, as upon a bill of review.

The other point, raised by the case, is, whether the action was sustained by proper proof of a conversion. It seems after the division of the slaves was made by the commissioners under the decree, and after the same was reported to the Court, but before the confirmation thereof, the defendant refused to deliver up the slave upon demand; and with a view to defeat the plaintiff’s claim, sold her. This was unquestionably a conversion’ as against him who had the right of property, and the consequent right of possession at the time, and the question resolves itself into this: was the plaintiff vested with these rights? We think he was.

Where a decree or judgment of Court is rendered, declaring rights of property in tenants in common of things capable of division and a partition is ordered, made and reported, an inchoate right of property is raised, which the subsequent judgment of confirmation perfects. In such case, the title has relation back to the division, and starts from that time; in like manner as the right of property in an administrator is held to relate back to the death of the intestate, for the moré complete protection of estates. Thefe is no error.

Per Curiam,

Judgment affirmed.