Opinion
May Term, 1819.
From Halifax.
Upon a marriage of his daughter in 1805, her father put into her possession a slave. In 1807, he purchased a tract of land for his son in law and family to reside on (the son in law having become nearly insolvent), and sold the slave to pay for the land. The son in law died, and in 1809 the father sold the land. His daughter complained: he answered that he would build her a house, and let her have another slave. He put into her possession another slave, and she married, and her husband sold the slave. The purchaser is not entitled to the slave as against the father; for
The daughter must be considered either as a donee or a purchaser. If she claimed under a gift, it not being in writing, is void by the act of 1806. She could not claim as a purchaser, because the first slave sold by her father, and by her consent, to pay for the land, was the slave of her first husband. She paid nothing to her father for the second slave.
She could not claim upon the ground of a compromise of a doubtful right, for there was no subsisting right in her or her father. In the cases of compromise of doubtful rights, there is a distinct and intelligible right in one of the parties, and the effect of the compromise is to end a dispute which must otherwise terminate in litigation.
This was an action of detinue for negro slaves; and the leading facts of the case were as follows: The Defendant had a daughter, who married one Williamson. He was a man of bad character, and insolvent; and having gone to Tarborough to follow his trade, his wife went to live with him at that place in 1805, taking with her a negro slave be longing to her father. Williamson remained in possession of the negro till some time in 1807, when he and his wife left Tarborough, and went to reside near the Defendant; when the Defendant purchased a tract of land to settle them on, and, to pay for this land, he sold the negro. Williamson died, and his widow continued to reside on the land till 1809, when the Defendant sold it. At the time of the sale, Mrs. Williamson reproached the Defendant, her father, with injustice towards her: said to him that he had taken (484) away the negro that he let her have, and sold it for the land, and the deed was taken in his name to prevent its being liable for Williamson's debts. To these reproaches, the Defendant replied, that a negro would suit her better than the land; that she could not cultivate the land herself, and she had no one to labor for her; that he would give or let her have the slave (naming her), who was the mother of those in question, and to remove her to his own house, and have a house built for her. Soon afterwards Mrs. Williamson was removed to a house in the Defendant's yard, and had the possession and use of the slave. She then married Waller, and on the morning following the marriage, the Defendant called up the slave, and in presence of witnesses declared that Waller might take her home upon loan, subject to the demand of himself or his representatives. At this time no claim was set up by Waller or his wife, both being present. Waller continued in possession of the slave for several years, and becoming indebted to divers people, he was sued, judgments had against him, and executions issued, which were levied on the slave and her children, and at the sale the Plaintiff became the purchaser. Some time before the sale, Waller executed a bill of sale to the Plaintiff for the slaves, in consideration of money which the Plaintiff either had paid or was bound to pay for him. The Defendant gave notice to the Plaintiff before his purchase under the executions, that Waller held the slaves only upon loan. Waller lived with the Plaintiff, and sometimes one and sometimes the other had possession of the slaves for more than three years.
For the Plaintiff it was insisted, that Mrs. Williamson was to be regarded as a purchaser of the slave, (the mother of those in question.) That she had a claim to the land in part purchased with the negro slave first put into her possession after her marriage with Williamson; that at that time (previous to the act of 1806) the law regarded this putting of the slave into her possession as a gift; that she asserted her claim to the land when the Defendant (485) was about to sell it, and had agreed to abandon her claim in consideration of the promise of the Defendant to let her have the slave, the mother of those in question; that the Defendant let her have the slave in pursuance of this promise; and the Court was requested to instruct the jury, that if they were of opinion, from the evidence that this was the history of the transaction, and that the slave was given in satisfaction of what Mrs. Williamson thought herself entitled to, and with a view of making peace in the family, they should find for the Plaintiff. The Court declined giving such instructions to the jury, who found a verdict for the Defendant; and a rule for a new trial being obtained, the Court discharged the rule, and the Plaintiff appealed.
From the circumstances of this case, the Plaintiff can make out a right to the slaves in dispute, only by establishing such a transfer from Pender to his daughter as would be valid since the act of 1806. Unquestionably it cannot prevail as a gift, because it was not in writing, as that act requires. It is alleged, however, by the Plaintiff, that Pender passed the slave to his daughter as a compensation for a tract of land sold by him, on which she lived, and which land had been purchased with a slave that he had formerly given to her, but had taken away to pay for the land; that the slave now in question was given to the daughter in satisfaction of what she might think herself entitled to, and with a view of making peace in the family; and that the compromise of a doubtful right is a sufficient foundation on which to decree the specific execution of an agreement. But the act of 1806 must bear on this transaction, unless it can be shown that the slave was sold to the daughter. A sale implies a valuable consideration, as money or the like: it cannot exist without a valuable consideration; though the law established free gifts without the same. Noy's Maxims, 87. Hob. (486) 230. A consideration ought to be matter of profit and benefit to him to whom it is done, by reason of the charge or trouble of him who doth it. Cro. Car. 8. What profit or benefit could the father derive from the agreement of the daughter?
Assuming as a fact that this slave was transferred in the manner alleged by the daughter in the conversation with her father, still the first negro was given to her, if given at all, while she was the wife of Williamson, in whose possession the slave was, while he was at Tarborough. Upon his death, therefore, the right devolved upon his administrator, and his wife had no claim except under the statute of distribution, from the surrender of which to the father he could derive no benefit since it could not repel the right of Williamson's representatives.
The compromise of a doubtful right recognizes a subsisting right in one or the other of the contracting parties. Here it was in neither. The gift of the father, if ever made, divested him of the right, and the same act placed it in Williamson. In the cases of compromise of doubtful rights, there is a distinct and intelligible right in one of the parties, and the effect of the compromise is to end a dispute, which must otherwise have terminated in litigation. In every view of the subject, the Court is of opinion that the Jury were properly instructed, and the rule for a new trial must be discharged. (487)