Opinion
(December Term, 1844.)
1. A sale of a chattel at the common law vested a title in the purchaser without a delivery.
2. So it was as to the sale of a slave, as between the parties, under our acts of 1784 and 1792, Revised Code, ch. 225, sec. 7, and ch. 363. They only affected the rights of creditors.
3. Whether our act of 1836 (Rev. Statutes, ch. 37, sec. 19), embodying these acts and omitting the preambles, may alter their construction, quaere.
APPEAL from CASWELL Fall Term, 1844; Pearson, J.
J. T. Morehead and E. G. Reade for plaintiff.
J. H. Bryan and Norwood for defendant.
Debt upon the administration bond of the defendant as administrator of his father, Moses Fuller, deceased. The relators were some of the next of kin of the said Moses, and alleged, as a breach of the conditions of the said bond, that the defendant had not accounted to them for a negro woman Judy and her children, part of the estate of the intestate. The defendant claimed the said negroes as his own property by virtue of a sale and delivery to himself from his father. In support of this claim he introduced the evidence of Dr. William F. Smith, who stated that he practiced medicine in the neighborhood of the said intestate from 1818 to the latter part of 1822, and was called in to his family whenever a physician was needed; that at some period during that time a girl between 6 and 12 years old, the property of the intestate, was badly diseased with white swelling in one of her legs, so as to exhibit very alarming symptoms; that the intestate despaired altogether of her recovery, and declined employing a physician to attend her, but told the defendant, his son (who was then grown and living at his father's, except when occasionally absent) that if he, the defendant, would employ (27) a physician for the said girl at his own expense and could have her cured, he might have her as his own property; that the defendant then made a conditional contract with the witness to attend the said slave and cure her if he could; that the witness succeeded in effecting a cure, and that the defendant out of his own means paid to the witness the sum of $25 therefor; that the witness remained in that neighborhood a considerable time thereafter, and heard the intestate speak of the said slave as having become the property of the defendant by reason of the facts already stated; that if the said slave had been well she would have been worth, at the period referred to, $250 or $300, but in her diseased condition she was not worth more than $100; that the symptoms exhibited a worse state of the case than the witness found it on treatment; that the charge for his medical attendance was quite low. The defendant also proved by another witness two conversations with the intestate about six or seven years before his death, which took place in 1840, at times when some of his negroes were sick or dying, in which the intestate stated that he had been unlucky with his slaves; that the woman Judy had when a girl been diseased in one of her legs; that he and his wife had done all they could for her, and thought she would die, and that he told his son William if he would employ a physician and pay him he should have her; that William did employ Dr. Smith to attend her; that she got well; that William paid the doctor and she was now William's. It was shown that the defendant had always lived with his father until the death of the latter, and superintended his business; that he married six or eight years ago and then began to cultivate a plantation 4 miles from home; that the negroes as well of the father as of the defendant worked sometimes at one plantation and sometimes at the other; that Judy sometimes worked out and sometimes did house service, but it was not shown that Judy ever worked at the defendant's plantation. The judge charged the jury that the defendant could not set up a title in Judy without (28) a written bill of sale, unless there had been a sale accompanied by an actual delivery from his father to him, and that in this case there was no evidence from which they could infer a sale accompanied by actual delivery.
The instruction, as we think, is certainly erroneous in the point that the defendant acquired no property in the slave by the sale because there was no actual delivery. A delivery is essential to the parol gift of a chattel, but a sale is good without it at common law. "As soon as the bargain is struck the property of the goods is transferred to the vendee and that of the price to the vendor; but the vendee cannot take the goods until he tenders the price. But if he tenders the money to the vendor, and he refuses it, the vendee may seize the goods or have an action against the vendor for obtaining them." 2 Bl. Com., 448. The rule is correctly and intelligibly laid down in several cases to be that when the bargain has been agreed on, and everything that the vendor has to do with the goods is complete, the sale is absolute, without actual payment or delivery, so that the property is in the vendee and the goods are at his risk. Farling v. Baxter, 6 Barn. and Cres., 360; Hinde v. Whitehouse, 7 East, 571. It is true that the vendee is not entitled to the possession until he pays or tenders the price or gets day for the payment; but, as Mr. Blackstone says, the property is absolutely vested by a regular sale, without delivery.
Thus it was at common law as between the parties to the contract and all other persons and in reference to all personal chattels. Acts of 1784 and 1792, ch. 225, sec. 7, and ch. 363, altered the rule of the common law respecting the sales of slaves, where creditors or purchasers from the vendor are concerned. Whether the construction of those acts must be changed by reason of the form in which they are combined in the Revised Statutes, ch. 37, sec. 19, in which the preambles and recitals are omitted, it is not incumbent on us now to determine, inasmuch as this (29) transaction occurred in 1822 or before. As the acts then stood, it was in many cases decided that they had no operation between the parties, but were intended for the benefit of creditors and purchasers alone. Knight v. Thomas, 2 N.C. 289. Hence, where there is a bill of sale it is good between the parties, though it be unattested and unregistered, Cutlar v. Spiller, 3 N.C. 61; and there need be no writing at all, but the contract may be by parol, Rhodes v. Holmes, 9 N.C. 193. And in Bateman v. Bateman, 6 N.C. 97, and Cotton v. Powell, 4 N.C. 313, it was held that a sale of a slave was good by parol as between the parties, without delivery, as it was at common law. Those cases are in point, and the evidence, if believed, established the payment of the money by the defendant according to his contract. This point being decisive of the case, we need not consider whether there was not evidence on which the jury might have found the possession of the slave to have been in the son after the contract with the father and while they were residing together. However that might be, the negro vested in the defendant by the contract of sale, without a delivery; and it does not appear that the father ever disputed it or set up any adverse possession or claim, but, on the contrary, he continued, as long as he lived, to acknowledge the son's title.
PER CURIAM. Venire de novo.
Cited: Buie v. Kelly, post, 174; Thompson v. Bryan, 46 N.C. 373; Reeves v. Edwards, 47 N.C. 464; Richardson v. Ins. Co., 136 N.C. 315.
(30)