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case, is a consideration of this sort. Such a consideration, when coupled in a deed, was, at common law, held sufficient to create a trust in real estate, which would be decreed in a court of equity; and under the statute of uses is sufficient to transfer the use into possession, and thus complete the legal title in cestui que use; and much more ought such a consideration be deemed sufficient to support a deed alienating the personal estate.

3.

GAUNT V. BROCKMAN. Spring T. 1808.

Hardin's Rep. 331.;

TURNER V. TURNER, 1 Wash. Rep. 139.

pa

as

It was held by the court, that after the passage of the act of Virginia, 1758, and before the operation of the act of 1785, a rol gift of slaves was void as between donor and donee, as well against creditors. But now a parol gift of slaves is valid. See Lucy v. Wilson, 4 Munf. Rep. 313.; Fitzhugh v. Anderson et al., 2 Hen. & Munf. 289.; Moore's Adm'r. v. Dawney, 3 Hen. & Munf. 127.; Boutright v. Meggs, 4 Munf. Rep. 145.; Johnson v. Hendley, 5 Munf. Rep. 219. In most of the states the statute of frauds has been considered as made to protect creditors and purchasers, and a parol contract for the sale of goods and chattels, and sales and gifts of slaves, have been held valid as between the partics themselves, and are only void when creditors are hindered or delayed, or the rights of third persons affected. See the cases Abridged, and Goodwin v. Morgan, 1 Stewart's Rep. 278.; 1 Hayw. Rep. 289.

A parol gift of slaves be

fore the act of 1785 was absolutely

void in Vir

ginia.

that a subsequent delivery will make it valid against all subsequent creditors and purchasers. In New York it is the impression at the bar, that the English rule recognized in Sturtevant v. Ballard, 9 Johns. Rep. 337., that where possession does not accompany an unconditional sale of goods, it is evidence of fraud per se, is overruled by the cases of Ludlow v. Hurd, 19 Johns' Rep. 221., and Bissel v. Hopkins, 3 Cowen's Rep. 166. And the same principle was recognised in Brooks v. Powers, 15 Mass. Rep. 244. But admitting the rule to be as laid down in Bissel v. Hopkins, that the possession remaining in the vendor or donor is only prima facie evidence of fraud, still, if the party is unable to show that the possession is bona fide, and the transaction fair and honest, it becomes conclusive evidence of fraud, and the jury must find accordingly. In Talcott v. Wilcox, 7 Conn. Rep. 134. 140, Bissel, J., observed, that it is undoubtedly, as has been contended, the settled law of this state, that if the vendor of personal property be permitted after the sale to retain the actual and visible possession, it is, unexplained, conclusive evidence of fraud.

So in North

4.

FARRELL V. PERRY, Oct. T. 1790. 1 Haywood's Rep. 2.

Per Cur. Williams, J. If a father at the time of his daughter's Carolina. marriage puts a negro or other chattel in the possession of the sonin-law, it is in law a gift, unless the contrary can be proven. The same principle was settled in Carter's Ex'r v. Rutland, ibid. p. 97. And again, Parker & Wife v. Philips, p. 451.; Pearson v. Fisher, 1 Car. Law Rep. 460.; M'Ree v. Houston, 3 Murphy's Rep. 429.; Lynch Ex'rs v. Ashe, 1 Hawks' Rep. 338. act of 1806 it is stated in a note, Farrel v. Perry, by the editor, that no parol gift of slaves is good in any case in North Carolina, and that a written transfer is in all cases necessary, even between the parties. Colten v. Powell, 2 Car. Law Rep. 432.; Barrow v. Pender, 3 Murphy's Rep. 483.

Under the act of 1784,

the transfer

5.

By the

THE EXECUTOR OF LYNCH V. ASHE. June T. 1821. 1 HAWKS'
North Carolina Rep. 338.; MADRY V. YOUNG, Louisiana
Rep. vol. 3. p. 162.

This was an action of detinue for certain slaves. The defendant relative to pleaded non detinet, the act of limitation. It appeared on the trial, that the father of the plaintiff's testator died in March, 1781, transfer by and shortly after, the mother of the testator made a parol gift to him parol is good as be- of the negro woman, for whom and whose increase the action was

of slaves, a

tween the

is

creditors

chasers are

original brought. The plaintiff's testator took the negro woman into his parties and possession, but afterwards loaned her to his mother. In the year under 1793, his mother intermarried with one Hargrove, an old servant them, and void on in the family of Major Strudwick. The mother, during her wily where dowhood, always stated the slave and her children to be the property and pur- of her son, plaintiff's testator, as did also Hargrove after his marconcerned. riage; and at one period Hargrove sent them home to Lynch; but soon after they were sent back. In the year 1804, Hargrove and his wife separated; he removed to a tract of land which he obtained from Mrs. Strudwick, carrying the slaves in dispute with him. On the 10th of August, 1805, Hargrove gave Mrs. Strudwick a bill of sale for the slaves, and at the same time Strudwick conveyed to Hargrove an estate for life in a tract of land by deed, in which it was mentioned, that Hargrove was to retain possession of the slaves during his life. In October, 1805, Hargrove re-conveyed his interest in the land to Strudwick. It was proved that Strudwick

had paid some small debts for Hargrove, and expressed a wish to have the use of the slaves while Hargrove lived, saying, that at his death they should go to the rightful owner. In March, 1815, Hargrove died, and plaintiff's testator obtained possession of the slaves, and kept them about a month, when Strudwick again obtained possession of them. The defendant claimed as distributee under Strudwick. Lynch died, and his executor brought this action within three years next after Strudwick got the slaves out of the possession of Lynch.

The court instructed the jury, that (without deciding whether the purchaser intended to be protected by the act of 1784, was one from the donor, or might be from any person claiming under the donor,) it was at least necessary to show that Strudwick was a bona fide purchaser for a valuable consideration; that a colorable consideration would not destroy the plaintiff's title; that if they believed from the evidence, that Hargrove's possession was not an adverse possession, it availed the defendant nothing; and thus the act of 1806 did not merge, or destroy the plaintiff's title, although Hargrove or Strudwick had the negroes in adverse possession upwards of three years after that act went into operation; because Thomas Lynch, the plaintiff's testator, had regained the possession in 1815, and kept them in his undisturbed possession for one month, or thereabouts, at which time the title and possession were united in Lynch. And as this was in three years next before the commencement of the action, the act of limitation did not protect the defendant. The jury found a verdict for the plaintiff. A motion for a new trial was moved for, on the ground of misdirection as to the law. The motion was overruled, and from the judgment rendered defendant appealed.

Henderson, J. I am of opinion that the law was correctly laid down by the presiding judge, in his charge to the jury for, however much we may now regret that the act of 1784 was not construed as a statute of frauds, avoiding all parol gifts of slaves, as well between the parties, as where creditors and purchasers were concerned, it is now too firmly settled, by a uniform train of decisions, to be even questioned, that as between the parties, and volunteers under them, the transfer is good, and that it is void only where creditors and purchasers are concerned; nor can we adopt the expedient pressed upon us from the bar, that we would in this case give to the act what we consider to be its true construction, as there has been no decision that a fraudulent or color,

A sale of a slave ac

able purchaser was not within the prohibition of the act. This would, to our understanding, be something like a subterfuge; the protection of the act is afforded to a purchaser on account of his merits, not his demerits. We cannot perceive the situation of a fraudulent and colorable purchaser to be better than that of the person from whom he purchased. Can title be strengthened by adding a fraudulent link to the chain? It appears to me, that if either is to be preferred, it is the original party; if Strudwick therefore was a fraudulent or colorable purchaser, (and this fact was properly left to the Jury,) he and his voluntary representatives stand in the situation of the husband, Hargrove, from whom he purchased; and as the parol gift, if made, was binding upon Hargrove, it is binding on the defendant Ashe, who is a volunteer under Strudwick. Judgment for the plaintiff.

6.

MARY CHOAT V. JOHN WRIGHT. June T. 1830. 2 Devereaux's North Carolina Rep. 289.; GOODWIN V. MORGAN,; 1 Stewart's Rep. 278.; 1 Haywood's Rep. 289.

Trover for a slave. The defendant, under the general issue, in evidence that an execution against one Isham Choat, came companied gave by a delive- to his hand, as sheriff, under which he seized the slave, and the ry is valid, and trans- only question was, whether the defendant in this execution had a fers the ti- title to the slave. On the evidence it appeared that the slave had

tle, not

nor any

dum of the

thereto.

A

withstand been the property of one Sybert Choat, and was by the plaintiff, ing no bill of sale is as his executrix, set up at public auction, and stricken off to Isham executed, Choat at 600 dollars; that the slave was delivered to the vendee; memoran- but no bill of sale, nor any memorandum of the sale in writing, contract was executed by the plaintiff. His honor charged the jury, that signed by the parties the sale of a slave, accompanied with delivery of possession, passed the title, notwithstanding the act of 1819. Rev. ch. 1016. verdict was returned for the defendant, and the plaintiff appealed. Ruffin, J. We should lend a ready ear to any plausible argument, tending to prove that this case is within the statue of frauds; (Act of 1819. Rev. ch. 1016. ;) for we feel that all the mischiefs are as apt to arise out of executed, as executory contracts. the words are too strong and plain to be got over. We think it extremely probable, that the draftsman considered, when he put lands and slaves on the same footing, that he required all contracts respecting each to be in writing. If he did, it was a great mistake. However the words of the act may be construed, if applied to

But

slaves alone, they cannot embrace executed contracts, when applied to both. The act says, that "all contracts to sell or convey lands or slaves shall be void and of no effect, unless such contract, or some memorandum, or note thereof, be put in writing, and signed by the party charged, except contracts for leases not exceeding three years." The question is, what sort of contracts is here meant? Certainly, only such a contract respecting slaves is within the act as would also be within it if it respected land; for the two subjects are placed side by side. It is perfectly clear, that executory contracts alone can be meant when land is the subject. For before that time, a conveyance of freehold land could be by deed only, and it is absurd to talk about "a note or memorandum in writing," as a thing that can pass such lands. In relation, therefore, to realty, not only the words of the act, "a contract to sell," but the state of the law before, restrains the statute to executory contracts. This ties us down, against our wills, to the same construction as regards slaves. Therefore, a sale of slaves by parol, that would have been good before the statute is still good. We are aware of the great inconveniences that will arise from this construction; and that has made us very reluctant to adopt it. For the same fraud and perjury will be practised in the dispute, whether the contract was one "to sell," or "of sale," as in ascertaining the particular terms of a contract to sell, and thus all the benefits intended by the legislature be defeated. But the framing of the act compels us to pronounce the judgment we do. Judgment affirmed.

7.

MORROW et al. v. WILLIAMS. Dec. T. 1831. 3 Devereaux's

North Carolina Rep. 263.

Detinue for a slave. A verdict was taken for the plaintiff, sub- A gift of

ject to the opinion of the court, upon the following case:

in

slaves, made by an instrument not under

seal, and

unaccom

panied by

void.

Jemima Bradshaw, on the 30th of December, 1820, signed an instrument, of which the following is a copy: "To all people to whom these presents shall come, I, Jemima Bradshaw, for and consideration of the natural love and affection which I have and delivery, is bear to my beloved son-in-law Arthur Morrow, and my daughter Jemima Morrow, and for divers other good considerations me hereunto moving, have given and granted, and by these presents do give and grant, unto the said Arthur and Jemima Morrow, my negro boy Abraham, &c., (mentioning several articles of personal paoperty,) to their use, and to use singularly to them, and the chil

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