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. 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 devisee in remainder or reversion, the particular estate not having expired, though he may in his life time sell her interest in them for 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.; cannot deto which he vise slaves is entitle his wife When a valuable consideration. The same principle was settled in Wallace and Wife v. Taliaferro, 3 Call. 447. And Tucker, J., observed, 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. Held by the court, that grand children might claim under a degrand chil- vise of slaves by the description of children; but the claim will only dren may 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 slaves do the question was, whether these after-purchased slaves passed by not pass by the will. After-purchased the will, unless it appears to be the intent of the testator. 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. 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. fers the title to the devi 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 without the assent of the executor, and he may recover them by suit without giving a refunding boud. 5. WALTON'S HEIRS V. WALTON'S EX'RS. Nov. T. 1831. 7 J. J. see. And the will, will speak from e death tetator. Held by the court, Robertson, Ch. J., after refering to Mason v. Mason's Ex'rs, 3 Bibb's Rep. 448., that notwithstanding 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. 6. WALTON'S HEIRS V. WALTON'S EX'RS. Nov. T. 1831. 7 J. J. The court, Robertson, Ch. J., held, that since the act of 1800, tike under the will, in the first instance, just as a devisee of land would take and hold land devised. (C.) BY PAROL CONTRACT. 1. STRAWBRIDGE v. WARFIELD. April T. 1832. 4 Louisiana that will not pass real And a will estate, is in effectual to pass slaves. The parol V. sale of a slave is not void; the first in party sued But we may waive his right to exclude pa rol proof. Per Cur. Porter, J. The judge of the court of the stance, considered the verbal sale of the slave was null. differ with him on this point. On the provisions of the old code, 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 tion.* deed, and *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, 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 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 gift of slaves be fore the act of 1785 was absolutely void in Vir ginia. It was held by the court, that after the passage of the act of A parol 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. 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. |