less in wri ting, attested by a subscrib statute of for the protec possession by the plaintiff; that this possession continued until the slaves unyear 1825, when the plaintiff received the slave again, and hired him out for a part of the years 1825 and 1826. After which the slave was again permitted to go into the possession of the defend- ing witness and regisant. There was proof that the plaintiff sent to the defendant a tered, is a writing respecting the negro, but whether it was a letter or a bill of frauds sale, the witness did not know. There was also proof of the loss made of this instrument, and it never had been registered. His honor, the judge, charged the jury, that the plaintiff having shown a title in himself, that it was incumbent on the defendant to show that it was devested; and as the latter claimed under a gift, since the act of 1806, he ought to satisfy them that the gift was in writing, signed by the donor, and attested by a witness subscribing it; and further, that in law a circumstance not made to appear was taken as not existing. A verdict was returned for the plaintiff, and the defendant appealed. Per Cur. Hall, J. The act of 1806, Rev. ch. 701., "declaring what gifts of slaves shall be valid," was made, as it emphatically declares, "for the prevention of frauds," and may be fitly called a statute of frauds. It declares, that no gift of slaves hereafter to be made, shall be good or available in law or in equity, unless the same be made in writing, signed by the donor, attested by at least one subscribing witness, and shall be proved or acknowledged as conveyances of land, and registered within one year. This act was made, not only for the benefit of creditors and purchasers, but also for that of donors. It must be well remembered what a fruitful source of litigation parol gifts, and pretended parol gifts, were before the passage of this act; and that, too, in many cases where creditors and purchasers were not concerned. To remedy that mischief the law was passed for the benefit of donors. And in proportion as any of the requisites of the acts are dispensed with, so in proportion will the mischief be left without remedy. In the present case, between the donor and donee, if there had been a deed of gift, and that deed had been registered, although the deed were lost, there would be no difficulty in procuring a copy of it, If deeds of gift have been bona fide executed, injury is done to no one by registering them. Mischief may be done by concealing them until after the death of the donors. But the act is positive, that such deeds shall be registered as conveyances of land. This clears the question of doubt; because nothing passes by convey tion of dounder it a nors, and deed is inoperative against the less duly donor, un attested and regis, tered. An absolute deed of slaves after the execution and reco is fraudu ances of land, or shall be good and available in law, unless the same shall be acknowledged, or proved, and registered. I am, therefore, of opinion, after full reflection, that the instructions given by the judge to the jury, on the trial in the court below, were correct. It is true, that what I said in Justice v. Cobbs, 1 Dev. Rep. 469., on the question of adverse possession, was extra judicial. The question involved in the decision of that case did not require it. That was the case of a possession where there was no parol gift proved. But it is a warning lesson not to speculate on supposed cases. Judgment affirmed. 7. THOMAS V. SOPER. Feb. T. 1816. 5 Munf. Rep. 28. ALEX- Detinue for slaves. The plaintiff offered in evidence an absolute deed from James Thomas, sen., of whose estate the defendwhere the ant was administrator. The defendant offered evidence to imgrantor reznains in peach the deed as fraudulent, and that James Thomas held the possession slaves from the time of executing the deed to the time of his death; and that the defendant, qualified as administrator of Thovery of it, mas, and that the negroes came to his possession as administrator, and that nulla bona had been returned to an execution against the creditors estate of Thomas. The court rejected the evidence, and instructand subse- ed the jury, that although in the case of an absolute deed for chasers, negroes where the vendor remains in possession after the execution, not be im and recording the same, such deed as to creditors and subsequent peached by purchasers is to be regarded as fraudulent and void; yet, between the parties or their re- the vendor and vendee, and their immediate representatives, it was presentaLives. lent and void as to quent pur yet it can obligatory, and could not be impeached by the testimony offered by the defendant as administrator of the grantor, which defendant was not himself a creditor. To this opinion of the court a bill of exceptions was filed, and a verdict being found, and judgment rendered for the plaintiff, the defendant appealed to this court, which affirmed the judgment. And see Thomas v. Soper, 5 Munf. Rep. 58.; where the court say, that, although in case of an absolute deed of slaves where the grantor remains in possession after the execution of the deed, it is fraudulent and void as to subsequent purchasers and creditors; yet the same is obligatory, and cannot be impeached, as between the grantor and grantee and their representatives. 8. RAGAN V. Kennedy. Nov. T. 1804. 1 Overton's Rep. 91. the posses with the Harrison, by a bill of sale transferred a negro to the plaintiff, And where and a lot. Harrison being married to the plaintiff's daughter in April, sion is in1798. A judgment was obtained against Harrison, and another consistent in March T. 1801, and a fi. fa. issued returnable to March T. 1802. bill of sale, The sheriff sold the negro, as the property of Harrison, to Kennedy, the defendant, and this action of detinue was brought against him to recover the slave. The court held, that a bill of sale of slaves made by a person indebted, who retains possession after the execution of the bill of sale, is void against creditors, although a valuable consideration may have been received. The court say, in conveyances of personal property the law supposes a transfer of possession. In subjects of this nature, two views present themselves: one as between the parties themselves, and those claiming directly under them; the other, as it respects such individuals as may stand in a relation to be affected by the transaction. In the first, delivery of possession may not be necessary; in the latter, it is usually otherwise. 9. MADRY V. YOUNG. Oct. T. 1831. 3 Louisiana Rep. 160. it is void as to the inte rest of third persons. vendee suffers the vendor to retain pos and he sells This was a suit instituted by Madry to recover of the defendant Where the a negro slave named Jack. It appeared the defendant was once the owner of Jack, but exchanged him, in the state of Mississippi, with one Dawson for a slave named Aaron. Dawson being unable session, to make a complete title to Aaron, Young refused to make an ab- and delisolute title to Jack. Dawson executed an instrument which was vers the thing sold recorded in Mississippi, where the transaction took place, in which to a second he reconveys Jack to Young; but this conveyance, to be defeasi- the latter ble, if he, Dawson, made Young a good title to Aaron, Dawson remaining in possession of Jack, sells him to one Hunter, who sold him to Madry; each sale being accompanied with delivery. Young now claims Jack, and alleges Dawson had no authority to sell him. Per Cur. Martin, J. Nothing is clearer than that, if the vendee suffers the vendor to retain possession, and he sells and delivers the thing sold to the second vendee, the latter will hold it in preference to the first. In the sale of a slave in a state where the property passes by verbal sale and delivery, if the vendee suffers vendee, will hold in preference to the first. Where the with her fa ther. the vendor to retain possession, and he sells and delivers the thing sold to a second vendee, the latter will hold it in preference to the first. And where the sale is accompanied with delivery and payment of the price, it transfers all the vendor's right and interest. 10. BRAXTON V. GAINES et al. Oct. T. 1809. 4 Hen. and The court held, that where a daughter who was an infant, and purchaser held as purchaser for a valuable consideration of a slave, the fact is an infant, and resides that such child resides in the family of the father, and there keeps the slave, and exercises acts of ownership over it, the creditors of the father cannot disturb the possession of the child, although the father had included the slave in a mortgage to indemnify persons for becoming his sureties. She is considered a purchaser for a valuable consideration, and not a volunteer. "Possession." See post, tit. 11. A deed of gift for slaves is BATTE V. STONE. March T. 1833. Rep. 168. 4 Yerger's Tennessee This was an action of detinue, commenced in the circuit court of Giles county, by the defendant in error, to recover from the plainvoid as to a tiff in error a slave by the name of Mary. From the bill of excepsubsequent tions the following facts appear: The father of the defendant in unless pro- error executed to him a deed of gift for the slave in controversy, ved by two witnesses. to which there were three subscribing witnesses. The deed was purchaser, proved within the time prescribed by law, by one of the subscribing witnesses, and registered. At the time of its execution, defendant in error was a minor, living with his father. Some time in 1827, the father of defendant in error sold the slave to the plaintiff in error, for a valuable consideration. Upon the trial of the cause, the defendant in error offered an office copy of the deed of gift in evidence. The production of the original was waived; but the deed was objected to, because it was only proved by one witness. The court overruled the objection; to which exception was taken, and the defendant in error, having a verdict and judgment, the defendant below appealed in error to this court. Per Cur. Catron, Ch. J. The main question in this cause is, whether the deed of gift, by virtue of which plaintiff claims title to the negro sued for, was properly admitted as evidence to the jury. It was made, in 1824, from the plaintiff's father to him, and purports to have had three witnesses to it. At May term, 1824, it was proved in the Sumner county court, by Edward Elliff, one of the subscribing witnesses, and certified for registration; and on the first of July, 1824, on this probate, registered. An office copy was offered, and objected to, because proved by one witness only, but received. Was the proof of one witness sufficient to authorize the registration? The first act requiring two witnesses to instruments required to be registered, is that of 1805, ch. 16. sec. 2., which applies to the settlement of slaves, or other personal property, in consideration of marriage. The act of 1807, ch. 85. sec. 3., is, in this case, the governing provision. In the mode of proof to authorize registration, there had been no difference in cases of transfers of lands or slaves before 1807, and it is manifest the act of that year did not intend to make any. As to lands, it is clear, two witnesses are required; the deed is to be proven by at least two subscribing witnesses, "and all bills of sale or other instruments of writing for the transfer of personal property, shall be so proven." The seventh section provides for the registration of deeds, theretofore made, on the proof of only one witnesss, because, until 1805, in no case had more than one been required. The proof by one witness did not authorize the registration of the deed; consequently, the copy offered in evidence was incompetent to go to the jury. Judgment reversed. 12. PIERCE V. GRAYS et al. Feb. T. 1818. 5 Martin's Louisiana Rep. 367. a donation slaves de the donee's On the father, is irrevocacable, al Per Cur. Mathews, J. The plaintiff, and appellant, claims two In Spain, slaves from the defendants. On the 17th of August, 1809, he to an inpurchased from Philip A. Gray, father of the defendants, eighteen fant, of slaves, and among them, the two now claimed, as having always livered to remained in the possession of the vendor, or his heirs. next day he executed a deed of gift in favor of Mayo Gray, and Sarah A. Gray, infant children of the vendor, for said slaves. The pro- though he perty remained in this situation till the 17th of September, 1814, formally when the donor seems to have changed his benevolent intention accept the gift. towards the donees, and declared, before the judge of the parish of Feliciana, his will and desire to revoke and annul "the deed of gift executed by him in the year 1809, before Wm. Lewis, syndic of the district of Feliciana, then under the government of Spain." does not |