Gates County NcArchives Court.....Stedman, V. Riddick 1825
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 January 25, 2009, 1:38 pm

Source: Nc Reports, Vol 11, 1897
Written: 1825

December Term, 1825

STEDMAN v. RIDDICK.

From Gates.

A vendee or assignee cannot sue in his own name for property which the vendor 
or assignor, at the time of sale, could only recover by a suit.

Trover fcr the value of a negro girl. On the trial below, before Daniel, 
Judge, the plaintiff produced a bill of sale, executed by the defendant to one 
Voight, dated (30) 28th July, 1824, and a bill of sale from Voight to himself, 
dated 4th August, 1824, for the negro girl.

The subscribing witness to the last bill of sale deposed, that at the time of 
its execution, Voight informed the plaintiff that he did not have possession 
of the negro, nor did he know that he should ever be able to get possession of 
her again: that the defendant, before the date of the bill of sale from 
Voight, sent for the negro, and took her into his possession, claiming her as 
his property, and that she remained in his possession until defendant sold her 
to a person who carried her out of the state.

The Court instructed the jury, that if the defendant had the adverse 
possession of the negro, when Voight sold her to the plaintiff, then the 
plaintiff could not recover; Voight had but a right of action, which, if 
purchased by the plaintiff, would not enable him to maintain an action at law. 
There was a verdict for the defendant; and on the appeal of the plaintiff, the 
case here stood upon a rule to show cause why there should not be a new trial.

L. Martin, for appellant.—It is contended for the appellant, that this is 
not "a chose in action." A chose in action is what cannot be reduced to 
possession by the act of the party, but by action only. Terms de la Ley.

As between the parties or privies to a contract for a slave, it is sufficient 
that there be either a bill of sale, or delivery. See Bateman v. Bateman (4 N. 
C., 85).

In this case, there were neither creditors nor purchasers having conflicting 
claims; but the defendant was a privy in estate to the contract, and estopped 
by his deed to set up any claim to the slave, or to make himself an adverse 
possessor.

In the case of Morgan v. Bradley (10 N. C., 559), it is decided by this Court, 
that when the purchaser and vendor of the chattel are ignorant of any adverse 
possession, the right of action passes.

See also the case of Nichols v. Bunting, to show that there is no maintenance 
in the transaction. (10 N. C., 86.)

B. Sumner, for appellee.-The signification of (31) the term, rights of action, 
or choses in action, is well settled and defined. It is not restricted merely 
to rights of action arising out of contracts, but it includes every case where 
a man hath the right to occupy, but hath not the occupation of a thing, but of 
which he may recover possession by a suit or action at law. (2 Blackstone's 
(Com. 396, 397.)

"Where," therefore, "a person's deeds or goods, and consequently negroes, are 
in the possession of another, and he can only be restored to them by suit, he 
has a chose in action precisely to the same extent as if his demand arose from 
a bond or promissory note." Hynes v. Lewis's ex'rs. (1 N. C., 49, 2 N. C., 
165.) These were precisely the circumstances of the case now before the Court: 
Voight claimed title to the negro, but Reddick had the adverse possession. 
Voight, therefore, had but a chose in action; and this he could not transfer 
to the plaintiff, so as to give to him a right to sue in his own name; for at 
common law no chose in action is assignable; nothing that lieth in action, 
entry or re-entry. (Co. Litt. 214 a.)

And the Courts of Law have adhered so strictly to this principle of the common 
law that they will not, even at this day, permit the assignee of a chose in 
action to maintain a suit in his own name; although the Courts of Equity will 
protect the assignment when for valuable consideration, if the assignee sue in 
the name of the assignor. (2 Black. Com. 442. Co. Litt. 211 a. 266 a. 1 
Bacon's Abr. 157. 1 Term Report, 26.) And so the presiding Judge instructed 
the jury.

But it is objected to the charge of the Court, that the defendant is estopped 
by his bill of sale to Voight to show that the plaintiff has not a sufficient 
title in law to enable him to recover. It would, perhaps, be difficult to find 
in any case an authority more precisely in point than the opinion delivered by 
Judge Henderson in Moore v. [11—5] (32) Willis (9 N. C., 558) is in this caso. 
The Judge there lays it down, "that an estoppel is the conclusion of the 
truth, and is therefore not to be favored. But it is the fact which the party 
is thus precluded from controverting, not the law. The party cannot be 
estopped from showing the law."

What right or interest the plaintiff acquired in the negro by his purchase 
from Voight, is inference of law, to be derived from the facts: the facts are, 
the defendant being in possession of the negro, Voight sold her to the 
plaintiff; the inference of law, that Voight had only a chose in action, which 
was not assignable; and this the defendant is not concluded by his deed from 
showing. But if the defendant's bill of sale to Voight could have operated 
against him as an estoppel, yet the plaintiff has waived his right to avail 
himself of it; "for estoppels must be pleaded relying on the estoppel." (4 
Reports 53.) But in the case now before the Court, it does not appear that the 
estoppel was either pleaded or relied upon at the trial. If the plaintiff does 
not rely on the estoppel, the Court and jury shall not be bound by it; but the 
jury may find the matter at large, and the Court shall give judgment 
accordingly. (1 Salkeld 277. Comyn's Dig. "Estoppel," 77.) If the jury find 
the truth of the fact, the Court will give judgment accordingly with regard to 
the estoppel. (Com. Dig. "Estop." 81.) And though estoppels conclude parties 
to deeds to say the truth, yet jurors are not concluded who are sworn ad 
veritatem de et super proemissis dicendam; for they may find any thing that is 
out of the record. (4 Rep, 53.) If a fact be stated in a deed which is not an 
essential part of it, the jury may find it different from what is stated, 
although the parties would be concluded to say otherwise: as if a deed bear 
date of a certain day and month, the jury is not estopped to say it was 
delivered on another day and month. (2 Rep. 6.) And so I apprehend, the jury 
may find that possession did not accompany the deed, although so expressed in 
the deed, or that the grantee had (33) subsequently lost and the grantor 
acquired the possession, for the delivery of possession is not an essential 
part of the deed.

Taylor, Chief Justice.—At the time when Voight sold the slave to the 
plaintiff, the defendant had the possession, claiming it adversely against all 
the world; and the question is whether this chose in action is assignable, so 
as to enable the plaintiff to sue in his own name. For a chose in action 
comprehends specific chattels, as well as the right to recover a debt or 
damages, and extends to every sort of chattel property of which a man hath not 
the actual occupation, but a bare right to occupy it, and a suit in law is 
necessary to recover the possession, on account of an adversary claim.

The distinction in our law between choses in action and possession, 
corresponds with a similar one in the civil and canon laws, in which property 
in possession is termed jus in re, property in action, jus ad rem. It is a 
settled maxim of the common law, that no chose in action can be granted or 
assigned, founded upon tho policy of preventing an increase of law suits, by 
restraining those who would not assert their own rights from transferring them 
to others of a more litigious disposition. The rule was doubtless more 
extensive than any mischief that could be apprehended; and it has accordingly 
been limited by various exceptions, as by the law merchant relative to bills 
of exchange, and in some instances respondentia bonds, by the acts making 
bonds and notes negotiable, and to the equitable sanction which is given to 
the assignment of choses in action for a valuable consideration. In many 
respects the rule at law is merely formal; for it is held that policies of 
insurance, and judgments, may be sued for by the assignee in the name of the 
original claimant. But I know of no authority for the position, that a vendee 
or assignee may sue for property in his own name, which the vendor or 
assignor, at the time of sale, could only recover by (34) suit. It seems to 
me, that much of the mischief which the rule aimed originally to prevent, 
would still arise under such a practice; and it is not called for by the 
necessity of trade or commerce, or any of those causes which introduced the 
relaxations. The case of Morgan v. Bradley (10 N. C., 559), was determined on 
its own peculiar circumstances; the steer was turned out in the range a very 
short time before the sale, at which time both the vendor and the vendee 
believed it to be still there, and when driven up by the defendant with his 
own cattle, he believed the steer to be one of them. The possession at that 
time proceeded from mistake, and could scarcely be considered adverse.   The 
judgment must be affirmed.

The other Judges concurring,

Judgment affirmed.

Additional Comments:
North Carolina Reports, Volume 11
Cases Argued and Determined in the SUPREME COURT of NORTH CAROLINA.
For December Term 1825 and June Term 1826 
by Francis L Hawks (Vol. IV)
Annotated by Walter Clark
Richmond: James E Goode Printing Company, Printers
1897

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