Opinion
December Term, 1856.
For the executor of an estate to permit a slave bequeathed to a daughter to remain with her, at the late mansion of the deceased, for ten years, without himself ever assuming any control over the slave, is certainly some evidence of an assent.
There can be no parol agreement that a slave shall stand as a security for money, unless the property is delivered to the pledgee.
ACTION of DETINUE, tried before ELLIS, Judge, at the Spring Term, 1856, of Rowan Superior Court.
The declaration was for the detention of a female slave, named Sarah. The slave in question had been bequeathed to Lunda Roseman by her father, who died in the year 1843. Within that year the will was duly proved, and James C. Roseman, the executor therein named, qualified. At the time of the testator's death, Lunda, who was under age, lived at the family mansion with her mother and her brother, John, who is since dead. The slave, Sarah, never was taken possession of by the executor, but was permitted to remain at the home plantation, and worked in common with the slaves of the mother and brother, John, until the year 1850, when the plantation was sold, as the property of John, the brother, and bought by the defendant. Lunda had lived from the death of her father up to 1850, with her mother and brother John, on the said plantation, and afterwards, up to the year 1854, continued to reside there with the mother and the defendant. In that year she intermarried with the plaintiff, and went with her husband to his residence, taking nothing with her. After a short time, during the same year, she went on a visit to the house of the defendant, where she took sick and died. A demand was made for the slave, which was refused, and this suit was brought in August, 1854.
The defendant set up two grounds of defence,
1st. That there had been no assent to the legacy on the part of the executor.
2nd. That the wife of the plaintiff had pledged the slave as security to the brother for a debt.
To establish these positions, the defendant introduced James C. Roseman, the executor, who swore that he never had assented to the legacy, but that the negro had remained on the plantation, without any claim, on Lunda's part, until her death. In regard to the second ground of defense, he stated that after the death of John, the defendant was unwilling to board his sister Lunda, unless she would either pay, or secure her board to be paid; furthermore, that the defendant had paid two debts for his sister Lunda, amounting in all to about two hundred dollars, and it was agreed between the defendant and Lunda, that the slave, Sarah, should stand as security for the board and this sum of $200.
The Court instructed the jury as to the second ground of defense, that as there was no delivery to the defendant, or possession proved, this ground was not available. Defendant excepted.
As to the first ground of defense, if the jury should be of opinion that there was no assent of the executor they would find for the defendant; and, in making this inquiry, they would consider the long time during which the negro had remained on the plantation with the plaintiff's wife without claim or control on the part of the executor. Defendant excepted.
Verdict and judgment for the plaintiff. Appeal by the defendant.
Osborne and H.C. Jones, for plaintiff.
Boyden and Fleming, for defendant.
The first point to be established by the plaintiff, to make a recovery of the slave sued for, is that the executor had assented to the legacy. There is no controversy as to the legacy. The defendant denies that the executor ever had assented, and the latter who was a witness, swore he never had assented. The father of Lunda Roseman, the deceased wife of the plaintiff, by his will, gave her the negro in question, and died in 1843. After the death of her father, Lunda continued to live with her mother and a brother, and the negro remained on the farm and worked with the other hands for the support of the family. When the brother died, the land on which Lunda and her mother lived was sold, and the defendant purchased it, and removed there, where he and his mother and Lunda continued to live up to the time of her marriage in 1854. After the marriage of the plaintiff and Lunda they removed to his house, and she died the year following. The writ was issued in 1854. The executor never took the slave into his possession, and never exercised any control over her. Upon this part of the case the jury were instructed, that the long time the negro remained in the possession of the legatee, without claim or control of the executor, was evidence of an assent. In this, there is no error. Acquiescence by an executor in a long-continued possession by a legatee, of the property bequeathed, will raise the presumption of an assent to the legacy by the executor. To make an assent by an executor it is not necessary that he should use any words of assent or deliver over the property bequeathed. White v. White, 4 Dev. Rep. 257; S.C., 1 Dev. and Bat. 260. In this case the plaintiff's wife was in possession of the slave for near ten years.
Upon the second point, we agree with his Honor. The legal title is in the plaintiff, and though the plaintiff's wife might have entered into the contract, mentioned in the case, it was in parol and executory, and, therefore, under the statute of frauds, was of no force and void as a sale. It could not operate as a pledge, for the slave never was delivered by the legatee to the defendant. Lunda continued to live on the farm up to the time of her marriage, and the negro continued to work with the other slaves for the joint support of the family. She was, therefore, in her possession. Nor can the fact, that when she and her husband removed to his residence, they did not take the slave with them, weaken this conclusion, for the case states they took with them none of her property.
Nor could the agreement be a mortgage, for, as before stated, it was verbal — not reduced to writing.
There is no error.
PER CURIAM. Judgment affirmed.