Pagina-afbeeldingen
PDF
ePub

result from the provision in the code, which declares, that things moveable may be prescribed for in three years, unless they have been stolen ; and even if they have been stolen, the owner cannot recover them without paying the possessor the price which they cost him, provided he bought them at a public market, fair, or at a public auction. Civil Code, 488., art. 74, 75. Slaves, by the laws of this country, are considered as immoveable, not moveable ; therefore, the above rule does not apply to them. The reason upon which that rule was established, also excludes the idea of its having any application to this kind of property. It does not pass by delivery, but by writing, and the purchaser should look to title, and not to possession, as evidence of ownership. It is therefore ordered, adjudged, and decreed, that the judgment of the district court be annulled, avoided, and reversed ; and it is further ordered, adjudged, and decreed, that the plaintiff recover of the defendant the slave claimed in the petition, with costs in both courts.

14. DUPREE V. HARRINGTON. Nov. T. 1824. 1 Harper's Rep. 391.

Where a

Trover for a horse. Where the plaintiff agreed to sell, and vendor of personal

actually delivered a horse, with a stipulation in the written conproperty tract that the right of property should remain in him, and not pass conveys to the vendee to the vendee until half the consideration should be paid, the upon condition of court held, that until the payment according to the contract, the payment and right of property in the horse remained in the plaintiff

. time, with Per. Cur. Gantt, J. The possession of a chattel is in law a stipulation that the prima facie evidence that it is accompanied with the right to property; right of

but the presumption may be rebutted by higher and better evidence. property is to remain I hold it to be a correct and well established principle, that the in the rendor till owner of a chattel may make a qualified contract respecting it, payment; a sale of

and in parting with the possession, still retain his right of property. the proper. It is the case in bailments, where the possessor has only a qualificd ty by the vendee, right, the absolute right being in the bailor. So, a sale may be without perform absolute or qualified, and the seller may secure himself by taking ing the sti

a mortgage of the thing sold, and the lien will attach on the pulation, conveys no mortgaged goods into whose hands soever they may come. The title.

vendee has no right of property in the horse until payment; his sale, therefore, to Harrington, the defendant, with notice of the non payment, passed no title, and the plaintiff must recover.

(D.) BY GIFT TO CHILDREN IN CONSIDERATION OF MARRIAGE ;

and see tit. “PosseSSION.”

1. MOORE'S ADM'R y. DAWNEY et al.

Munf. 127.

Oct. 1808.

3 Hen. &

The plaintiff's intestate, intermarried with the daughter of Zacha- When they riah Burnly, Dec. 1795, who was a man of large fortune; and held as gift immediately after the marriage, Burnly sent the slaves in the de- in conside

ration of claration mentioned to his son-in-law, in whose possession they marriage. remained until his death, in April, 1795; and afterwards they were seized upon execution, as the property of Zachariah Burnly.

The court held, that where a sather, possessed of a large fortune, sent his slaves immediately after marriage of one of his daughters to her husband, where they remained until the husband's death, which happened two years and four months after, they would presume the slaves were a gist in consideration of marriage.

Per Tucker, J. It appears to me that the delivery of the negroes to the husband immediately after the marriage, may well be presumed to have been in consideration of marriage.

circum

an

2. TAYLOR v. EUBANKS. Spring T. 1821. 3 Marshall's Rep. 239.

Detinue for a slave. It appeared that George G. Taylor, on The mere the marriage of his son, the appellant, made a parol gist of the

stance of a slave in question to him, and in about one year the slave was taken parent be: out of his possession upon an execution issued against the father, who ed at the

time he was indebted to the execution creditor in a considerable sum at makes the time of the gift. The court instructed the jury, that if they advance

his believed, from the evidence, that the father was indebted at the child, does

not, of it time of the parol gift of the slave to the son, the gift as to the exe- self'

, render cution creditor was void in law. Verdict for defendant; and void; it is Taylor appealed.

the intent

to defraud, Per Cur. Owsley, J. If by the instruction given it was intended that vitiby the court to decide, that under the statute against fraudulent gift. conveyances generally, the mere circumstance of a father being indebted at the time of making the conveyance, does, within itself, as matter of law, render a gift made to the son, in consideration of natural love and affection, void as to creditors, we entertain no doubt the instruction cannot be sustained. The statute of this

ates the

country, which was taken from, and contains, in substance, the
provisions of the 13 and 27 Elisabeth, no doubt makes void all
conveyances made with an intention to hinder, delay, or defraud
creditors; but it is the fraudulent intent with which the conveyance
is made, and not the circumstance of the alienor being at the time
indebted, that makes the conveyance void.

From his being indebted, an intent to defraud may be presumed;
but it is a presumption which may be repelled by other evidence,
and which should be made by the jury, and not the court. There
may be cases where, from particular facts, it would be proper for
the court to infer a fraudulent intent; but those are cases where,
from the facts, the law itself implies the intent, and allows the in-
troduction of no evidence to repel the implication. But the cir-
cumstance of being indebted is not such a fact from which the law
implies an intention in the person conveying, in consideration of
natural love and affection to defraud his creditors.

3.
TAYLOR, Ex'R OF ROWLEY, V. WALLACE AND WIFE. Nov.

T. 1786. 4 Call's Rep. 92.

When within the statute.

The question was, whether a verbal gist of slaves to an unmarried woman, to whose husband the slaves upon his marriage were delivered, and in whose possession the same remained until his death, four years afterwards, be within the statute for preventing fraudulent gifts of slaves.

The court of appeals certified their opinion to be, that the said gift was void, and within the statutes for presenting fraudulent gists of slaves.

slave home

4.
BYRD v. WARD. June T. 1827. 4 M Cord's Rep. 228.
Sending a Trover for a slave. Allen married the daughter of Mr. Ryrd,
with a mar- and when about moving her to his own house, Mrs. Byrd told two
ried daugh-
ter, and negro women to go home with Mrs. Allen, and assist her; one of
permitting the negro women returned soon after, and the other remained
main there four years in Allen's family, and was considered by the neighbor-
is a gift of hood as the property of Allen. Allen becoming embarrassed,
the slave to Mr. Byrd executed a deed of trust to the plaintiff of the ne-
band.

groes, for the use of his daughter, Mrs. Allen. The negroes were
sold by an execution creditor of Allen. Verdict for plaintiff, and
motion for a new trial.

[ocr errors]

Per Cur. Nott, J. Permitting negroes to go home with a daughter, on her marriage, has always been considered as prima facie evidence of an unconditional gift ; and the only question now for our consideration is, whether this case is an exception to the general rule. One of the slaves remained four years in Allen's family. Such a length of possession would give a statutory right, and would be conclusive evidence of the intention of the

parent. And after that period the father of Mrs. Allen could not, by a voluntary settlement, defeat the rights of creditors. The inference from the facts is, that the property must be considered as belonging to Allen, and subject to the payment of his debts. I am of opinion, that the verdict in this case is contrary both to law and evidence, and that a new trial ought to be granted.

goes with

ter,

or

IS

5, Clung v. LOCKART. June T. 1827. 4 M.Cord's Rep. 251

Trover for a slave. The plaintif proved the defendant sent his And it is slave to plaintiff's house about a year after he had married the de- whether fendant's daughter, where the slave remained until the death of the the slave daughter, when the defendant took the slave

away.

the daughThe court charged the jury that the rule of law was, that where afterwards a parent suffered property to go with a child upon marriage, a gist was implied ; but it did not extend to this case. Here the property went into the possession of the son-in-law a year after marriage. Verdict for defendant, and the plaintiff appealed. The court, Colcock, J., held, that the charge of the court was wrong, and a new trial must be granted.

sent..

6. MAHAN V. JAMES. Spring T. 1810. 2 Bibb's Rep. 32. Held by the court, Clark, J., that a gift of a slave, accompanied A valid gift

is irrevocaby possession, is valid, and cannot be invalidated by a subsequent ble. devise of the donor. A gift of a slave, accompanied with actual possession, vests in the donee an absolute property, unless it be done with an intention to defraud.

10

[blocks in formation]

yet, where

1. HARDESON V. Hays. March T. 1833. 4 Yerger's Rep. 507. Although,

This was an action of detinue, brought by Samuel Hays against by the sta- the plaintiff in error, Hardeson, to recover two slaves, Rachel and North Ca. her child, which Hays claimed as his property. It appeared from rolina, a

the evidence, that the plaintiff below was the original owner of gift of slaves must the slaves; that William Hays, under whom the defendant below, or writing, Hardeson, claimed, married the daughter of the plaintiff, Samuel or the same is absolute- Hays, in North Carolina, in 1811 ; that between that year and ly void ; 1818, several slaves had been sent by Samuel Hays to William the gift was Hays, which were returned ; that in January, 1818, the girl Raby parol, and the do- chel was sent in exchange for one previously sent; that from 1818, nee had possession,

until William Hays moved to Tennessee, in 1826, Rachel remainclaiming ed in his possession, except a few wecks, now and then, when she the property as his

was at Samuel Hays’; that William Hays claimed her as his own, tue of the and exercised acts of ownership over her; that when he removed gift more to Tennessee he carried Rachel with him ; that she continued in years, it

his possession until he sold her to Hardeson, which was nearly five that the 'ri- years ; but Hardeson did not have her in possession three years tle was thereby

before this suit was brought against him. Hardeson gave William vested in Hays three hundred and thirty dollars for Rachel, her child not him by the act of limi- then being born. The laws of North Carolina, which were read tations, and

in evidence, required that the gift should be in writing, or it was absoquently lutely void to all intents. The jury, under the charge of the court, vested in a purchaser returned a verdict for the plaintiff. Such parts of the charge as from him.

the court deemed material or necessary to notice, are contained in the opinion delivered by Judge Green.

than three

conse

* The statutes of limitations, in reference to this species of property, are various in the different states where such property exists. In some of the states the limitation is three years, in others it is five. But in all of them the general principles applicable to the possession of chattels, prevail. An adverse possession under the statute for the time limited, gives the possessor a valid title, which he may avail himself of, in an action against him to recover the possession by a plea; or, if disposessed, may recover the slave on the strength of the title gained by force of the statute. And where the possession is not adverse, and consequently the statute does not apply, a possession of twenty years as loanee or mortgagee will give a title. The court will consider the absolute right to the property is in the possessor, by force of the length of possession.

« VorigeDoorgaan »