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 submitted 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 nullity 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. vise slaves 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 devisee 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 in right of 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.; When grand children may a valuable consideration. The same principle was settled in Wal 2. EWING'S HEIRS V. HANDLEY'S HEIRS. Fall T. 1823. 4 Little's Rep. 346. Held by the court, that grand children might claim under a devise 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. Mason made his will, and afterwards purchased two slaves, and the question was, whether these after-purchased slaves passed by not pass by the will. After-purchased slaves do the will, unless it appears to be the intent of the testator. Owsley, J. Per Cur. Owsley, J. We are of opinion that the slaves did not pass under the will; they descend as if no will had been made. The rule would be otherwise, where it appeared plainly by the 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. But in the case of Le Grand v. Darnell, 2 Peter's Rep. 664, the court held, in accordance 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. fers the title 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. 5. WALTON'S HEIRS V. WALTON'S EX'RS. Nov. T. 1831. 7 J. J. see. And the Held by the court, Robertson, Ch. J., after 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, which makes slaves real estate, a will that would not pass lands will not pass a slave; the effect of the act is, that a person under 21 years of age cannot devise a slave; that a will that would not 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. (C.) BY PAROL CONTRACT. STRAWBRIDGE V. WARFIELD. April T. 1832. 4 Louisiana V. that will not pass real effectual to And a will estate, is in pass slaves. The parol sale of a slave is not void; the may waive his right to exclude pa 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 differ with him on this point. On the provisions of the old code, rol proof. But the be deliver transfer the jurisprudence of this court was settled, that parties had a right to admit a parol contract for the sale of immovable property; and if they choose they might, as they did in this instance, admit parol evidence to prove it. The late amendments to the Louisiana code. have not changed those of the civil code, except in recognizing the validity of a verbal sale, and in establishing, by their authority, the doctrine that the exclusion of parol testimony in relation to contracts of the description of that before us, is a privilege which the parties may waive. 2. BANK'S ADM'R v. MARKSBERRY. Spring T. 1828. 3 LITTLE'S Per Cur. It was urged, that the gift of the slaves was void, slave must there having been no delivery of them to the donees. There is ed, or the no doubt that, to the completion of a parol gift, the delivery of the must be by thing is essential; but we apprehend this principle does not apcontain a ply to a gift by deed, if the deed be founded on a good consideraconsidera- tion. The relation of father and child, which subsisted in this deed, and tion.* * Voluntary gifts and grants are valid between the parties, and are held good when the interests of third persons are not affected. Possession should accompany the gift; or, in other words, a change of possession should take place. It is a controverted question, whether the possession of the goods remaining in the vendor or donor is, or is not, conclusive evidence of fraud; or whether it is only prima facie evidence of it, and therefore a proper subject for the jury to examine into and decide. The distinction probably, in a great measure, is determined by the nature of the conveyance, or transfer of the property. If the instrument of conveyance be absolute and unconditional on its face, it is held, the possession must pass to the vendee or donee, otherwise the transaction will be held fraudulent by the court. This principle was stated and acted upon by Ch. J. Marshall, in Hamilton v. Russel, 1 Cranch's Rep. 309. The chief justice observed, that modern decisions have determined, that an unconditional sale where the possession does not accompany and follow the deed, is, in respect to creditors, by the statute of Eliz., a fraud, and should be so determined by the court. And the principle is sustained by many cases in the courts of the several states. Patton v. Smith, 4 Conn. Rep. 455.; Talcott v. Wilcox, 9 Conn. Rep. 134.; Young v. Pate, 4 Yerger's Rep. 164.; Clow v. Woods, 5 S. & R. 275.; Babb v. Clemson, 10 S. & R. 419. But in the case of Sydney v. Gee, 4 Leigh's Virginia Rep. 525., which was a bill of sale absolute for certain slaves, and a delivery to the vendee, and a redelivery back to the vendor at hire for the price of their board-the court, Tucker, J., observed, that innumerable instances of delivery and re-delivery are unassailable. I buy a horse from a countryman, and the seller immediately borrows him to save himself the fatigue of travelling home on foot. I buy a slave in midsummer which I shall not want till Christmas, and hire him to the vendor for the residue of the year. I invest money in slaves, not to till my land, but to let to hire. I think these are cases of constructive fraud. It is strongly my impression, that the failure to deliver possession, where no real fraud is intended, does not attach fraud to the transaction forever; and |