Opinion
(December Term, 1844.)
1. A vendor of a personal chattel is an incompetent witness to prove title in his vendee, because in every sale there is an implied warranty of title, if there be no contract to the contrary. But he becomes competent upon receiving from the vendee a release of his liability.
2. A seal of a court is essential to the validity of a commission to take testimony, directed to persons out of the county, from the court at which it issues.
3. A mortgagee, for a valuable consideration, is to be considered a purchaser under our statute against fraudulent conveyances.
APPEAL from FRANKLIN Fall Term, 1842; Caldwell, J.
(94) G. W. Haywood for plaintiff.
Saunders and Badger for defendant.
Detinue, brought to recover the possession of five slaves. The plaintiff, in support of his title, produced and duly proved a deed of mortgage for the said slaves (or their maternal ancestors) from William Green, dated 16 August, 1820, and duly registered, by which the slaves were conveyed for the consideration of $784.46 to the plaintiff, on condition, nevertheless, "that if the said William Green should pay to the plaintiff the sum of $784.46 on or before 25 December next, with lawful interest for the same for redemption of the said slaves, then this bill of sale is void; otherwise, to remain in full force and virtue." He also proved the possession of the slaves by the defendant previous to the issuing of the writ. The defendant claimed title under a purchase from James Green, and alleged that the negro woman from whom these slaves had since descended was given to the said James Green by his father, the said William, by parol, prior to the act of 1806 prohibiting parol gift of slaves. To prove this allegation he offered the said James Green, whom he had released from all liability to him, as a (92) witness. The testimony of the plaintiff was objected to by the counsel for the plaintiff on the ground that, though released, he could not be a witness to prove a parol gift to himself. This objection was overruled. This witness proved that prior to 1806 his father, William Green, the maker of the deed of mortgage above mentioned, gave him the slave Hannah, from whom the slaves claimed by the plaintiff are descended, and he took possession of Hannah; that about 1805 he left that part of the State, resided in Randolph and Montgomery counties, leaving Hannah in the possession of his father, and did not return until 1818; that he then lived on a plantation near his father, and resumed the possession of Hannah. He further stated that in 1818 or 1819, he sold one of Hannah's children in Georgia, in the presence of his father; that they both lived there a short time, and then returned to the county of Franklin, where he sold another of Hannah's children with his father's knowledge, and that he had since sold the negroes sued for to the defendant. The defendant then proved by several witnesses that in 1806, and up to 1810, they heard the said William Green say the negro woman Hannah was the property of the said James Green, and that he had given her to James when she was a small girl. The plaintiff then proved by his mother that he was born on 4 November, 1819, and that the said negro Hannah and her children, after the execution of the deed to the plaintiff, came into the possession of the father of the plaintiff, where he resided, and remained in his possession about one year, and that they were then taken off by some persons unknown to her. The defendant then offered in evidence the deposition of Nathaniel Hunt, a nonresident, which was shown to have been taken under commission signed by the clerk, but without the seal of the court affixed. The plaintiff objected to the reading of the deposition because the seal of the court was not affixed to the commission. The court overruled the objection and decided that, although there was no seal to the commission, and the deposition was taken in another State, yet it might be read. It was proven by the deposition that William Green (93) admitted to the deponent that he had given the said negro Hannah to his son James Green when a small girl, and said that James was a very imprudent man, and that many efforts had been made to sell her by his creditors, on which occasions he had interposed his own claims, and thus prevented a sale. The plaintiff offered no evidence of the payment of any part of the consideration money mentioned in his deed, nor of any debt owing by William Green to him, or to any one for his use; but the subscribing witness swore that William Green said, at the time of executing the paper, he intended it as a gift to his grandson, the present plaintiff.
It was insisted on the part of the plaintiff that the parol gift before 1806, if any was made to James Green by his father, was not sufficiently proven as a gift at common law, because there was no proof, in the manner and form requisite at common law, of an actual gift and delivery of the negro Hannah. Secondly, it was contended that, even admitting the parol gift to have been sufficiently proven, the plaintiff was still entitled to recover, because by the deed from William Green to him he was a purchaser, and, as against him, the parol gift was inoperative and void. His Honor declined to give these instructions, but charged the jury that a mortgagee was not such a purchaser as would avoid a parol gift of slaves made prior to 1806; that a mortgagee was in point of law, so far as this case was concerned, not a purchaser, but an encumbrancer, and the question at law was whether a valid gift had been made by William Green to James Green prior to the passage of the act of 1806; that if such gift was made prior to that time, the defendant was entitled to a verdict; if no such gift had been made, the plaintiff was entitled to a verdict.
The plaintiff thereupon submitted to nonsuit and moved for a new trial, which was refused and judgment entered for the defendant for his costs, etc. The plaintiff then appealed to the Supreme Court.
The defendant claims the negroes in dispute by purchase from James Green. In order to make out his title he offered James Green as a witness, having previously released him from all claims in consequence of the sale. The introduction of the witness was opposed upon the ground that, although released, he was incompetent to prove a gift to himself. The objection was correctly overruled by the court. Upon his examination Green proved that prior to 1806, his father, William Green, from whom also the plaintiff claimed title, had given him a negro woman named Hannah, whom he had taken into possession, and that from her the negroes now in dispute had since descended, and that he had sold them to the defendant. A vendor is, in general, an incompetent witness to support the title of his vendee, for the reason that he is directly interested in so doing. In every sale of a personal chattel the law implies a warranty of title, unless it is agreed to the contrary by the parties in the contract or there is an express warranty of some other kind. Upon a defect of title, therefore, if his vendee for that cause loses the chattel, he is bound to make compensation in damages. His interest, therefore, is direct and positive, and he is incompetent as a witness for the defendant to support the title; but his (95) incompetency lasts no longer than his interest endures, and a release removes his interest. The relation in which this witness stood to the case, and his importance to the plaintiff, rendered it necessary for the plaintiff to sustain and prop his testimony. With that view the deposition of one Nathaniel Hunt was offered in evidence. Its introduction was opposed by the plaintiff on the ground that the commission was not under the seal of the court from which it was issued, and that it was to be executed in another State. The objection was overruled by the court, and the deposition was read. In his opinion of his Honor we think there was error. By the common law the seal of the court is a necessary and essential part of every writ. In England the original is a mandatory letter from the King in parchment, issuing out of chancery and sealed with the great seal, and directed to the sheriff of the county wherein the injury was committed or supposed to be. 3 Bl. Com., 273. That the seal has ever been considered a necessary part of the writ in the State is evident from the act of 1797. By that act it is provided, "that in all cases where the clerk of a county or Superior court issue process to the county of which he is clerk it shall not be necessary for him to affix the seal of his office thereto." Rev. Stat., ch. 31, sec. 125. From the phraseology of this act it is evident the law was at that time considered settled that the seal of the court was deemed necessary to any process issued by the clerk. The only effect the act had or was intended to have was to make the writ valid when to be executed within the county from the court of which it issued. The Legislature might well suppose it unnecessary to require the writ to be authenticated by the seal in the latter instance, as the officers of the court would be known officially to the citizens of the county; when beyond its limits they would not, and their official acts could be recognized only when evidenced by the seal of the court whose officers they were. Every writ, therefore, issuing from a court of record which is to be executed without or beyond the limits of the county in which it issued, in order to its validity, must be evidenced by the seal of the Court. Goodman v. Armistead, 11 N.C. 19; Seawell v. Bank, 14 N.C. 279, and Finley v. Smith, 15 N.C. 96. Otherwise (96) it confers no power to act, upon any one. A dedimus potestatum is within the words of the act of '97, and within the equity of it. See Duncan v. Hill, 19 N.C. 293. The witness Hunt, if he had sworn falsely, could not have been convicted of perjury, because the deposition was not to be taken within the county of Franklin, and not being under seal, it conferred no authority on any one to act under it. The judge, therefore, erred in suffering the deposition to be read in evidence. It might have been very material to the support of the defendant's case if it had gone to the jury, in propping and sustaining the evidence of James Green, his material witness; for, though there were other witnesses who testified to similar declarations of William Green, they may not have been as well known to the jury as Mr. Hunt, or, being known, were not entitled to equal weight with him. We cannot tell. There was error in the opinion, and there must be a new trial.
The plaintiff claimed the negroes in dispute by virtue of a conveyance from William Green to him subsequent to the alleged gift to James Green. The deed to him was a mortgage of the negroes for value expressed in the face thereof. The judge was requested to charge the jury that the plaintiff was a purchaser, and, therefore, entitled to hold the negroes against a prior gift. The judge refused so to charge, but told the jury that a mortgage in point of law, so far as this case was concerned, was not a purchase. We do not concur with his Honor in this opinion. A mortgage is a purchase under the statute of 27 Elizabeth. Chapman v. Emery, Cowper, 279; and in Roe v. Hutton, 2 Wilson, 356, the court declared that under that statute those are considered purchasers who take under instruments made for a valuable consideration. Whether the plaintiff was in this case a purchaser for valuable consideration or not is not now under our consideration.
(97) We concur with his Honor that the facts disclosed in the case constituted a gift to James Green, if true. For the error in the admission of the deposition of Nathaniel Hunt there must be a
PER CURIAM. New trial.
Cited: Moore v. Ragland, 74 N.C. 347; Taylor v. Taylor, 83 N.C. 118; Brem v. Lockhart, 93 N.C. 194; McArter v. Rhea, 122 N.C. 615.