Opinion
(June Term, 1830.)
1. Executed contracts are not within the act of 1819, relating to contracts for the sale of lands and slaves. (Rev., ch. 1016.)
2. A sale of a slave accompanied by a delivery is valid, and transfers the title, notwithstanding no bill of sale is executed, nor any memorandum of the contract signed by the parties thereto.
TROVER for a slave, and on the trial before DANIEL, J., the defendant, under the general issue, gave in evidence that an execution against one Isham Choat, came to his hands as sheriff of Surry, under which he seized the slave, and the only question was whether the defendant in that execution had a title to the slave.
No counsel for the plaintiff.
Devereux, for the defendant.
FROM SURRY.
On the evidence it appeared that the slave had been the property of one Sybert Choat, and was by the plaintiff, as his executrix, set up at public auction, and stricken off to Isham Choat at $600; that the slave was delivered to the vendee, but no bill of sale, nor any memorandum of the sale in writing, was executed by the plaintiff.
His Honor charged the jury that the sale of a slave, accompanied with delivery of possession, passed the title, notwithstanding the act of 1819 (Rev., ch. 1016). A verdict was returned for the defendant and the plaintiff appealed.
We should lend a ready ear to any plausible argument tending to prove that this case is within the statute of frauds. Laws 1819, Rev., ch. 1016. For we feel that all the mischiefs are as apt to arise out of executed as executory contracts. But the words are too strong and plain to be get over. We think it extremely probable that the draughtsman considered, when he put lands and slaves on the same footing, that he required all contracts respecting each to (290) be in writing. If he did, it was a great mistake. However, the words of the act might be construed, if applied to slaves alone; they cannot embrace executed contracts, when applied to both. The act says that "all contracts to sell or convey lands or slaves shall be void and of no effect unless such contract, or some memorandum or note thereof, be put in writing, and signed by the party charged, except contracts for leases not exceeding three years." The question is, what sort of contracts is here meant? Certainly only such a contract, respecting slaves, is within the act as would also be within it if it respected land; for the two subjects are placed side by side. It is perfectly clear that executory contracts alone can be meant when land is the subject. For before that time a conveyance of freehold land could be by deed only, and it is absurd to talk about "a note or memorandum in writing" as a thing that can pass such lands. In relation, therefore, to realty, not only the words of the act, "a contract to sell," but the state of law before restrains the statute to executory contracts. This ties us down, against our wills, to the same construction as regards slaves. Therefore a sale of slaves by parol, that would have been good before the statute, is still good.
We are aware of the great inconveniences that will arise from this construction; and that has made us very reluctant to adopt it. For the same fraud and perjury will be practiced in the dispute, whether the contract was one "to sell" or "of sale" as in ascertaining the particular terms of a contract to sell; and thus all the benefits intended by the legislature be defeated. But the framing of the act compels us to pronounce the judgment we do.
PER CURIAM. No Error.
Cited: Epps v. McLemore, 14 N.C. 347; Mushat v. Brevard, 15 N.C. 77; Tate v. Greenlee, Ib., 154; White v. White, 20 N.C. 564; Massey v. Holland, 25 N.C. 198; Rice v. Carter, 33 N.C. 300; Gwynn v. Setzer, 48 N.C. 383; Smith v. Arthur, 110 N.C. 402; Hall v. Fisher, 126 N.C. 208; McManus v. Tarleton, Ib., 792; Brinkley v. Brinkley, 128 N.C. 506; Brown v. Hobbs, 15 N.C. 547; Herndon v. R. R., 161 N.C. 654.
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