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that the slave has been sold and delivered to the buyer, or when he was already in possession under another title. Civ. Code, 350. art. 28. But this constructive delivery does not appear from the expressions of the act of sale, and there is evidence that the slave remained in the possession of the vendor.

15. DORSEY V. GASSAWAY. June T. 1809. 2 Har. & John's Rep. 402. Held by the court, Chase, Ch. J., that if slaves remain in posses- And whe

ther the sion of the vendor, the bill of sale must be recorded ; and whether

slave they remained in his possession is a matter of fact for the jury. If mains with they find they were not in his possession, the bill of sale is not or not, is a

matter of required to be recorded, and is not evidence, although it was fact. recorded, unless the exccution of it be proved.

re

may be in

to.

16. RICE v. HANCOCK. Nov. T. 1824. 1 Harper's Rep. 393. The defendant gave an absolute bill of sale of a slave, which The consi

deration of stated a past consideration. The court held, he was not precluded the deed from showing that no consideration was in fact paid.

quired inPer Cur. Gantt, J. The consideration paid for the negro might, or might not, have been inserted in the bill of sale, and the transfer in law would have been as effectual one way as the other. The insertion is more a matter of form than substance, and in no event can preclude the party from inquiring into it. Had the defendant offered evidence to show that the bill of sale was intended to transfer a less interest than what was expressed therein, or that another negro than the one described was intended, &c. then such evidence would be in contradiction to the deed, and not admissible. In transactions of this kind it is well known that the consideration expressed in the instrument is not always paid down, but secured by bond, note, or verbal promise, and it is the business of the purchaser to fortify himself with evidence of having paid the consideration agreed to be given.

17.
MONDAY v. Wilson et al. August T. 1832. 4 Louisiana

Rep. 338.; S. P. TRAHAN V. M.Manus et al., 2 Louis-
iana Rep. 209.; and see, 9 Martin's Rep. 648. ; 6 Mar-
tin's Rep. N. S. 324.

Per Cur. Mathews, J. In this case the Plaintiff claims two

Where the slaves, which are in the possession of the defendant. The for- vendor of

mer sets up a title derived from Morgan, evidenced by an authentic act passed before the parish judge of East Feliciana. The defendant claims the same property in virtue of a sheriff's sale made by the sheriff of St. Helena, in which it was sold as belonging to the vendor of the plaintiff. The cause was subunitted to a jury in the court below, who found a verdict for the defendant, and judgment being rendered thereon, the plaintiff appealed.

The evidence of the case shows that the slaves in question were on a plantation, situated in the parish of St. Helena, belonging to Morgan, under whom both parties to this suit claim title; one by a voluntary sale, the other by a forced sale, made under execution by the sheriff of the parish aforesaid. The sale to the plaintiff was made to the plaintiff on the 18th of October, 1830. The sheriff's sale took place in January, 1831, and was made under an execution which issued on a judgment confessed by Morgan in favor of the defendant Wilson. The validity of the sale is contested on the ground of irregularities in the proceedings of the sheriff, he not having pursued the formalities required by law necessary to give effect to forced alienations of property under our judicial proceedings. Whether the regularity of the course pursued by the sheriff, in the sale by him made, could, under any circumstances, be inquired into in the collateral manner in which it is here presented, need not be examined in the present case, as the court is of opinion that the plaintiff in the execution did not adopt the means afforded him by law to render the property now in dispute liable to be seized and sold under his execution.

The sale from Morgan to the plaintiff is by authentic act, made in due form, a fair price stipulated for the slaves sold, a mortgage reserved on them to secure payment, and the deed contains a declaration that they have been delivered to the buyer.

In addition to this clause of delivery, the record shows that the purchaser had possession of them, as agent or manager of the plantation of the seller; and, as stated by the witness, William, had the management of these identical slaves in the fall of 1830.

On the subject of tradition or delivery of the slaves, it is stated in article 2484 of the Louisiana Code, that it takes place in three ways: “Either by real delivery made by the buyer, or by the mere consent of the parties, when the sale mentions the thing sold has been delivered, or when the buyer was in possession under another title.” But the article 2456, provides, "that in all cases where the thing sold remains in possession of the seller, because

he has reserved the usufruct, or retains possession by a precarious title, there is reason to presume that the sale is simulated, &c. Now, it appears to us, that when the seller remains in actual possession without a reservation of usufruct, retention of the property sold under color of any precarious title, the same, or perhaps a stronger reason may exist to induce a belief that the sale was simulated and fradulent. Indeed, it is believed to be a principle recognized in all systems of jurisprudence, that where the seller of property keeps possession, this circumstance constitutes an indicium, or badge of fraud in relation to third persons; and perhaps property thus circumstanced might be legally seized by creditors of the vendor, without compelling them to resort to actions of rullity to set aside such contracts, and that the mere mention of delivery in the act of sale ought not to defeat the right which creditors have to seize property as belonging to a vendor before tradition. In the present instance before the purchaser is shown to have been in possession of the property sold, under another title than that acquired by the sale, viz. as agent for the seller. Thus situated, the slaves, which were apparently the property of the plaintiff, both by sale, evidenced by notorial act, and by actual possession, could not legally be seized as belonging to the defendant in execution, by the judgment creditor, without causing the sale of the plaintiff to be annulled by an action directly instituted for that purpose. .

(B.) BY DEVISE.

1. UPSHAW v. UPSHAW et al. April T. 1809. 2 Hen. and

Munf. 381. The court held, that a husband dying in the life time of the wife, A husband had no right to devise away slaves to which she is entitled, as de- cannot de

vise slaves visee in remainder or reversion, the particular estate not having to which he expired, though he may in his life time sell her interest in them for is entitled

his wife.

* Slaves are devisable like any other chattel. A distinction, however, exists where slaves are considered as real property. In those cases they pass immediately to the legatee, and not to the executor as personal estate. The moment they are considered property they are of course subject to those rules of enjoyment of it by the possessor, and transmission from one to another, the common law has established, or the legislature has declared. With respect to a devise to a slave, it is held in all the states but Maryland, that such devise is void. Slaves cannot take by sale, devise, or descent. Cunningham v. Cunningham, C. & N. 353. So also a devise for the maintenance of slaves is void. 1 Taylor's Rep. 209.; Pleasants v. Pleasants, 2 Call's Rep. 319. ;

a valuable consideration. The same principle was settled in Wallace and Wife v. Taliaferro, 3 Call. 447. And Tucker, J., obseryed, that the principle was not affected by Dade v. Alexander, 1 Wash. Rep. 30.

2. EWING'S HEIRS V. HANDLEY'S HEIRS. Fall T. 1823. 4 Little's

Rep. 346.

grand chil.

When

Held by the court, that grand children might claim under a dedren may

vise of slaves by the description of children; but the claim will only take by the be valid where there are no children to answer the description. description of children. And see Pringle v. M‘Pherson, 2 Dess. Rep. 524., where the court

held, that a bequest of certain slaves by name, with “ their families," was under the circumstances restricted to their wives and children residing in the same house with them, and should not be extended to grand children.

3. Mason v. Mason's Ex'rs. Fall T. 1814. 3 Bibb's Rep. 448. After-pur

Mason made his will, and afterwards purchased two slaves, and chased slaves do

the question was, whether these after-purchased slaves passed by not pass by the will. the will, unless it Per Cur. Owsley, J. We are of opinion that the slaves did

to be the in- not pass under the will; they descend as if no will had been made. tent of the The rule would be otherwise, where it appeared plainly by the testator.

will that it was the intention of the testator that they should pass under it,

Walker v. Bostick, 4 Dess. Rep. 266.; Brandon v. Huntsville Bank, 1 Stewart's Rep. 320.

But in the case of Le Grand v. Darnell, 2 Peter's Rep. 664, the court held, in ac. cordance with the decisions in Maryland, that a devise of property, real or personal, by a master to his slave, entitles the slave to freedom, by implication. And see Hall v. Mullin, 5 Har. & Johns. Rep. 190.

In some of the states the owners of slaves may manumit them by will. In Virginia and Kentucky a devise of freedom to a slave is effectual to give them freedom. But in other states the manumission of slaves is guarded by legislative enactments, making it necessary to have the assent of the state, as in Tennessee, South Carolina, Geor, gia, &c. See tit. Emancipation,

4. LOGAN V. WITHERS. April T. 1830. 3 J.J. Marshall's Rep.

389. S. P. Irons v. Lucky, 1 Marshall's Rep. 74.

Held by the court, Buckner J., that slaves devised are not assets And the in the hands of the executor, but the legal title is immediately will transtransferred to the devise, and he may take possession of them with- to the deviout the assent of the executor, and he may recover them by suit without giving a refunding bond.

see,

5.
WALTON'S HEIRS v. WALtoy's Ex'rs. Nov. T. 1831. 7 J. J.

Marshall's Rep. 58.; M DONALD V. M.MULLIN, 2 Rep.
Const. Court S. Carolina, 97.

And the

Held by the court, Robertson, Ch. J., aster refering to Mason will, will v. Mason's Ex’rs, 3 Bibb's Rep. 448., that notwithstanding the death

speak from the act of 1800 has made slaves real estate, a general devise of of the tesslaves will pass all those which the testator has at his death, and the devise will be considered as speaking at the death of the testator.

tetator.

6. WALTON'S HEIRS v. WALTON's Ex'RS. Nov. T. 1831. 7 J. J.

Marshall's Rep. 58. The court, Robertson, Ch. J., held, that since the act of 1800, And a will which makes slaves real estate, a will that would not pass lands pass real will not pass a slave; the effect of the act is, that a person under ettectual to

of

age cannot devise a slave ; that a will that would not pass slaves. pass land will not pass a slave ; and that a devisee of a slave will take under the will, in the first instance, just as a devisee of land would take and hold land devised.

21 ycars

(C.) BY PAROL CONTRACT.

1.
STRAWBRIDGE v. WARFIELD. April T. 1832. 4 Louisiana

Rep. 21. ; ROBINEAU v. CORNIER, 1 N. S. 456.; HIGH-
LANDER V. FLUKE, 5 Martin's Rep. 442.; MADRY V. sale of a

Young, 3 Louisiana Rep. 160. Per Cur. Porter, J. The judge of the court of the first in- party sued stance, considered the verbal sale of the slave was null. But we his right to differ with him on this point. On the provisions of the old code, rol proof.

slave is not void; the

may waive

exclude pa

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