Opinion
(December Term, 1846.)
1. Where the question is whether an instrument of writing is a testamentary paper or a deed, it becomes a fact to be proved by all kinds of evidence, by which, in law, any other fact may be established. The evidence which arises from the face of the instrument may be aided or opposed by evidence aliunde.
2. Therefore where A and B, by an instrument of writing, "gave and bequeathed" to C certain slaves "to have and to keep the aforesaid property at our death," and it was proved that the donors intended this as a deed of gift, and so signed, sealed and delivered it: Held, that this was a deed of gift and not a testamentary paper.
3. The plaintiff having recovered one thousand dollars as damages for the detention of the slaves, whereas the damages laid in the write and declaration were only two hundred dollars: Held, that the plaintiff might, in the Supreme Court, amend his writ and declaration so as to state the damages at one thousand dollars, he paying all the costs of the suit.
APPEAL from WASHINGTON Fall Term, 1846; Pearson, J.
Detinue, brought to recover the three negro slaves mentioned in the suit. The plaintiff proved that Patsey and Sally Liverman were formerly the owners of said slaves. He then offered in evidence the instrument annexed, made part hereof, and marked A; he introduced Charles McClees, a subscribing witness thereto, who proved that Nancy McClees, the other subscribing witness, was dead; that Patsey (93) and Sally Liverman, the signers of said instrument, sent for him and told him they wished him to write a deed of gift of the slaves and property in said instrument to the plaintiff, they being at that time the owners and in the possession of said slaves and property; that he drew said instrument, and read it over, including the attestation clause, "Signed, sealed, and delivered in presence of"; that they then signed and sealed it, and he and said Nancy, at their request, witnessed it; that all this was done in the presence of the plaintiff and said Patsey and Sally; he further stated that he did not recollect whether the instrument was left on the table or whether it was handed to the plaintiff or to said Patsey and Sally. The plaintiff then introduced other evidence of the delivery of the instrument as the act and deed of the said Patsey and Sally. The plaintiff was then permitted to read the instrument, whereupon the defendant objected that the instrument was not a deed, but was testamentary in its character. The testimony proceeded, his Honor, Judge Pearson, reserving this question. The plaintiff then proved the value of the slaves, that the defendant had taken possession of them, and had them in his possession at the bringing of this action; he also proved the value of their hires for the time they had been detained, and that the action was brought within a month or two after the detainer, the detainer having been since Patsey's and Sally's death. His Honor, Judge Pearson, after explaining to the jury the requisites of a deed, left it to the jury to say whether the said instrument had ever been delivered by the signers to the plaintiff as their act and deed; if so, the jury were instructed to find for the plaintiff; if not, for the defendant. Under these instructions the jury found for the plaintiff. Upon the question reserved, his Honor was of opinion that as the instrument contained words which, if in a deed, were sufficient to convey the slaves and property therein to the plaintiff, (94) and the jury having found the execution of the instrument as the act and deed of the signers thereto, it was and had the force and effect of a deed, and did convey the slaves and property in it mentioned to the plaintiff. A judgment was rendered for the plaintiff, and the defendant appealed.
(A.) (Instrument referred to.)
Know all men by these presents, that I, Patsey Liverman and Sarah Liverman, do, for the good-will and divers good causes which we have not mentioned, have given and bequeathed to Edward Clayton the following articles, to wit: First, we give and bequeath 50 acres of land, which we purchased of Uriah Spruill; also one negro woman by the name of Phillis, one girl Grinny, and one boy by the name of Robert, to have and to keep the aforesaid property, at our death, free and clear from any enthrallments whatever.
In testimony whereof we have hereunto set our hands and seals, this 28 July, 1828. (Signed by the donors.)
Signed, sealed and delivered in the presence of (Signed by two witnesses.)
Heath for plaintiff.
A. Moore for defendant.
First, the judge decided that the instrument of writing under which the plaintiff claimed the three slaves was not a testamentary paper. We concur in the opinion delivered by his Honor. When, as to the extent of estates, or the particular limitation of estates in a deed or will, the intention of a testator, or the intention of the maker of a deed, is to be ascertained, the Court must decide the question only upon the face of the instrument itself. But when the question is whether an instrument of writing is a testamentary paper or a deed, it becomes a fact to be proved by all kinds of evidence by which, in law, any other fact may be established. The evidence which arises from the face of the instrument may be aided or opposed by evidence aliunde. (95) The language of this writing, except the word "bequeathed," and all the incidental circumstances in making it, are those which really belong to a deed. The three slaves to pass by the instrument to the plaintiff, on the death of the donors, is a circumstance (since our statute) applicable either to a deed for slaves or to a last will. But the subscribing witness deposed that the donors told him that they wished him to write a deed of gift to the plaintiff for the property mentioned in this instrument; he wrote it, and then read it over to them, and they signed and sealed it, and he witnessed it at their request. And then there was express evidence, from other witnesses, that Sally and Patsey Liverman delivered the instrument as their deed. The whole of the evidence is, in our opinion, quite satisfactory that the donors intended to execute a deed, and not a will. And although this Court has heretofore decided that the donors could not make a joint will, yet there is no dispute but that they might make a joint deed of gift, and that the separate interest of each of the donors in and to the said slaves would pass by the deed to the donee, by force of the statute, on the death of the donors. That the instrument cannot in law operate as a will is another strong reason why it should be regarded as a deed and as having been intended by the parties to operate as a deed, passing vested interests and operating immediately.
Secondly, the law upon the question of a delivery of the deed was correctly stated by the judge to the jury. With out repeating his charge on this point, it seems to us to be right, according to the principles laid down by this Court in Moore v. Collins, 15 N.C. 384. The damages assessed for the detention of the slaves amount to $1,000, while those laid in the writ and declaration are only $200; and the counsel for the plaintiff have moved for leave to amend by enlarging the sum laid. The cases are that he may do so; but he must pay for the privilege all the costs of the suit in this and the other courts. Grist (96) v. Hodges, 14 N.C. 198. Upon the record as amended the judgment will then be affirmed, except as to the costs.
PER CURIAM. Affirmed at costs of plaintiff.
Cited: Outlaw v. Hurdle, 46 N.C. 167; Parsons v. McBride, 49 N.C. 100; Bond v. Coke, 71 N.C. 99; Davis v. King, 89 N.C. 446; Egerton v. Carr, 94 N.C. 653.