Opinion
(December Term, 1855.)
Parol evidence of the contents of a deed conveying a slave, is not admissible, if it was not proved and registered, although full proof has been made of the loss or destruction of the instrument, and proper notice given of the intention to offer secondary proof of its contents.
ACTION of TROVER, tried before PERSON, Judge, at the last Fall Term of Hyde Superior Court.
Donnell, for plaintiff.
Rodman, for defendant.
The plaintiff declared as the administrator of Elisha Tooley, also in the name of William B. Tooley, an infant, for the conversion of a female slave named Jane. It was proved that for fifteen years, or thereabouts, the said girl had been the property of William B. Tooley, the elder, in his own right. In that year, it was proved by one Harris, that he (W. B. Tooley, sen'r.) executed a bill of sale to Nathaniel Creedle, conveying to him the slave in question, with others, for a valuable consideration, and that he, Harris, attested the deed as a subscribing witness. It was further proved that, since the death of Nathaniel Creedle, this deed had been seen in the possession of either W. B. Creedle, or in that of defendant, witness could not, with certainty, say which. This witness was the administrator de bonis non of Nathaniel Creedle, and admitted that he had been notified, as such, to produce the instrument referred to above, but stated that he did not have the possession of that paper; never had seen it, and did not know where it was. It did not appear that this deed had ever been proved or registered.
Defendant's counsel opposed the admission of this evidence to prove the contents of the conveyance; but the objection was overruled, and the evidence admitted. Defendant excepted.
Verdict for the plaintiff. Judgment and appeal.
The only question presented by this case is, as to the competency of the testimony offered by the plaintiff, to prove the bill of sale from Tooley to Creedle. The defendant objected to the evidence, upon the ground, that it did not appear that the deed ever had been proved and recorded. To the legislative department of the government, belongs the power to enact laws, by which the people are to be governed, and to the judiciary, the right to expound them. While acting within the scope of their legitimate authority, their will is to be obeyed; none have a right to disobey it. Where the language of an Act is plain and perspicuous, the Act must speak for itself, unless its enactment transcends the power of the legislature. In this case the legislature has left no doubt upon the question presented to us. "All sales of slaves shall be in writing, attested by at least one credible witness, or otherwise shall not be deemed valid; and all bills of sale of slaves shall, within twelve months after the making thereof, be proved in due form, and recorded; and all bills of sale, and deeds of gift, not authenticated and perpetuated in manner by this Act directed, shall be void and of no force whatever. " Rev. Stat. ch. 37, sec. 19. I need not refer to the proviso in that section. In the succeeding section, provision is made for the registration of such conveyances. Here, there is no ambiguity; no room for construction. If not authenticated and perpetuated as directed, that is, duly proved and recorded as directed, the conveyance is declared not to be deemed valid, but to be void and of no effect. So important is this enactment, that from session to session of the Legislature, it is an invariable practice to pass a law enlarging the time for proving all such conveyances. If a hiatus occurs in the link of this chain of Acts, and a subsequent Act should be passed, the deed may be proved and authenticated under the latter, but when so proved and authenticated, it has no relation back; so that an execution against the bargainor may be levied upon the property contained in it. Scales v. Fewell, 3 Hawks. Rep. 18. We are not unapprised of the decision of the Court in the cases of Hancock v. Hovey, Tayl. Rep. 104, and Rhodes v. Holmes, 2 Hawks. Rep. 193, but we do not think they govern this. Our decision turns upon a different state of the law since they were made. When they were pronounced, it was under the Statute of 1784, in which the preamble to the enactment was made. A preamble is no part of the law, though it is a guide to direct the Courts, as to the intention of the Legislature. We are governed by the Act of 1836, in which the preamble is omitted, and in which there is nothing to govern the construction of the general words, but the words themselves; and we do not feel at liberty to depart from them; and that, whether the preamble was omitted from inadvertence or design. That it was not this inadvertence, we are justified in concluding, from the fact, that "the Revised Code" which was passed at the session of the Legislature in 1854, ch. 37, sec. 19, enacts "that all written sales and conveyances of slaves shall, within two years after the making thereof, be proved in due form and registered, or otherwise shall be void." It is true, this latter Act did not go into operation until the first of January in the present year, and it is only brought into notice here, to fortify the position we have taken in this case. See Lambert v. Lambert, 11 Ire. Rep. 162. Carrier v. Hampton, Ibid 307. The first of these cases was in relation to a conveyance of land, and we see in the Act little difference between conveyances of land and of slaves, as to the authentication of conveyances; and the latter was upon the sufficiency of the authentication of a conveyance of land and slaves.
The evidence offered by the plaintiff, to show the contents of the deed from Tooley to Creedle, was incompetent, and improperly received by the Court. For this error, the judgment must be reversed, and a venire de novo awarded.
PER CURIAM. Judgment reversed.