Opinion
January Term, 1812.
From Washington.
Construction of the acts of 1784, ch. 10, and 1792, ch. 6, relative to the sale of slaves. The object of these acts was to protect creditors and purchasers. The first required all sales of slaves to be in writing; the second declared valid all sales of slaves where possession accompanied the sale. Neither of these acts apply to a case where the interests of a creditor or purchaser are not concerned. A bill of sale or a delivery is necessary in every case where their rights are affected; but between the parties themselves a bona fide sale according to the rule of the common law transfers the property, and is good without a bill of sale or delivery.
THIS was an action of detinue for a negro slave, and upon the trial the plaintiff proved that some time in 1804 the defendant, in conversation, said that he had settled (98) his dispute with the plaintiff, and that he had let the plaintiff have the negro in question in satisfaction of a debt of $100 which he owed to him; that as the negro was small, he had agreed to keep her until she was able to do service, or was called for by the plaintiff. The defendant had remained in possession of the negro ever since. There was no evidence of a delivery of the negro to the plaintiff. Upon the trial of this cause in Washington Superior Court of Law the judge informed the jury that to pass a title in a slave there must be either a bill of sale or a delivery of the slave. The jury returned a verdict for the defendant, and a rule was obtained by the plaintiff upon the defendant to show cause why a new trial should not be granted, upon the ground of misdirection by the court. The case was sent to this Court upon the rule for a new trial.
The question in this case depends upon the true construction of the act of 1792, ch. 6, to ascertain which it is necessary to consider the act in connection with that of 1784, ch. 10, section 7 of which it is its professed object to amend and explain. The preamble to that section declares that many persons have been injured by secret deeds of gift to children and others and for want of formal bills of sale. The enacting clause provides that all sales of slaves shall be in writing, and that they, as well as deeds of gift, shall be recorded. The exposition of this law, made soon after its passage, and generally acquiesced in since that period, was that the design of the Legislature being to protect the rights of creditors and purchasers, the want of a written transfer could be set up against the validity of a sale only in cases where the rights of those persons were to be affected; that as between the parties (99) to the transaction it was valid and effectual, although made by parol. The act of 1792, having the same object in view, dispenses with the necessity of a bill of sale in every case, manifestly under the impression, in the framers of the law, that the rights of creditors and purchasers might be as effectually guarded by superadding delivery to the common-law mode of selling a chattel as by a written evidence of the sale. The expressions of the act are, "that bona fide sales of slaves, accompanied with delivery," and which would have been good before the passing of the act of 1784, shall be held valid. But a bona fide sale without delivery would have been held good at common law; and if the Legislature designed to alter the common-law mode of transfer, they might have effected that object by a simple repeal of the clause in question. It was believed either that a delivery was necessary to the validity of a common-law sale or the delivery was substituted in lieu of the bill of sale for the sake of creditors and others. The first supposition is inadmissible; and in adopting the latter we must apply to the act the same principles of construction which have governed the decisions of cases arising under the act of 1784. Hence it follows that a delivery is necessary in all cases where the rights of creditors or third persons are affected; but between the parties themselves a bona fide sale according to the rule of the common law effectually transfers the property; and the sale in this case being of the latter description, the rule for a new trial must be made absolute.
Cited: Cotton v. Powell, 4 N.C. 314; Palmer v. Faucette, 13 N.C. 242; S. v. Fuller, 27 N.C. 29; Benton v. Saunders, 44 N.C. 362.
(100)