Opinion
May Term, 1819.
From Mecklenburg.
Alexander, upon the marriage of his daughter with M'Cree, made a parol gift to him of a slave. M'Cree kept the slave in his possession for seven years, and being about to remove out of the State, he made a parol gift of the same slave to his son, an infant of four years old, who, with the slave, remained with Alexander. Two years afterwards, Alexander sold the slave for a valuable consideration to Houston, who knew of the gift to M'Cree's son. This sale to Houston is good as against M'Cree's son, under Laws 1784, ch. 10.
This act makes all plural gifts of slaves void, as to creditors and purchasers, with or without notice.
Gift of slaves, not void as to the creditors of the donor and purchasers from him, must be in writing, attested and registered, and made bona fide.
This Court adopts Lord Mansfield's construction of the statute of 27 Elizabeth, and will support voluntary conveyances made bona fide, and founded upon a meritorious consideration, against purchasers for a valuable consideration.
This was an action of detinue for sundry negro slaves, Maria and her children; and the case was, that William Alexander, sen. was the owner of the negro slave Maria, and upon the marriage of his daughter Mary with William M'Cree, father of the Plaintiff, in 1789, he made a parol gift of Maria to his son in law, who kept her in possession until 1796; when, being about to remove to the state of Tennessee, he made a parol gift of Maria to his son Richard M'Cree, the Plaintiff, then an infant about three or four years old; and left the Plaintiff and the slave Maria with William Alexander, the grandfather of the Plaintiff. Afterwards, in 1798, William Alexander, for a valuable consideration to him paid, sold the slave Maria to the Defendant William Houston, who, at the time of the purchase, was fully apprised of the Plaintiff's claim to the slave. All the other slaves named in the declaration were the children of Maria, and the Plaintiff brought this suit within three (430) years after his arrival to full age. The Jury, under the direction of the Court, found a verdict for the Defendant; and a rule for a new trial being obtained, on the ground of misdirection by the Court, the case was sent to this Court.
Mordecai and Gaston, for the Plaintiff.
A. Henderson, for the Defendant.
There can be no doubt but that the Plaintiff would be entitled to recover on Common Law principles. The slave Maria was given by Alexander to his son in law, M'Cree, who had notorious possession of her for six or seven years. He then gave her to the Plaintiff, his son, who was an infant, and remained with Alexander, his grandfather, after his fathers' removal. Some time afterwards, Alexander sold the slave to the Defendant. It is not pretended that these gifts were not bona fide made: and, therefore whether if the first gift had been made in secret, and the father in law had retained possession of the slave so given, and had afterwards sold her to a purchaser for a valuable consideration without notice, it would have amounted to one of those cases of fraud, which Lord Mansfield says, the Common Law would have reached without the aid of any statute (Cowp. 434); or whether a right was thereby created in the donee, although fraudulent, which could not be divested by him who afterwards acquired a right without fraud (3 Co. 83. Cro. Eliz. 445), it is not necessary now to decide.
But it is necessary to consider, 1st. Whether the statute of 27 Eliz. ch. 4, interposes any obstacle to the Plaintiff's recovery? and if not, 2d. Whether he is prevented therefrom (448) by our act of 1784, ch. 10, sec. 7?
I think the statute of the 27 Eliz. does not extend to this case; because the subject in controversy is a personal chattel, and that statute in express terms extends only to real property and leases for years. It declares that all covinous and fraudulent conveyances of lands, tenements and hereditaments, shall be void as to subsequent purchasers for valuable consideration. No words are used which comprehend personal property. If the rule be applied, "that statutes made in suppression of fraud should receive a liberal construction" (3 Co. 82.a.), the statute does not embrace the present case. The statute of 13 Eliz. in favor of creditors, speaks not only of lands, c. but also of goods and chattels; and if it had been intended that the statute of 27 Eliz. should extend to goods and chattels, it would have been so expressed. It may be further observed, that the statute of 13 Eliz. in the third section, declares that the parties to such fraudulent conveyances, as it is made to avoid, shall incur the penalty of one year's value of the land, and the whole value of the goods and chattels; but the statute of 27 Eliz. which inflicts the same penalty as to the lands, c. is altogether silent as to the personal property.
But admitting that the statute extends to goods and chattels, and that the gift to the Plaintiff was legal and not affected by our act of 1784, it would be with difficulty that I could bring my mind to adopt such a construction of it as would prevent a parent from acting in obedience to one of the most sacred duties imposed upon him by the laws of nature, that is, making suitable provision for his children. When a child marries, and separates from his or her parent, the first thing that occurs to the mind of the parent is, what part of his property, in justice to himself and perhaps to other children, ought he to give by way of advancement. Perhaps, as in the present case, he can spare a negro girl to assist (449) his daughter; when he has done this, he thinks he has only done his duty, and the world thinks so too. Keeping out of view adjudications on the subject, let us see whether the Parliament of England thought otherwise when they passed the statute of 27 Eliz. In the preamble, as well as, in the body of the statute, fraudulent conveyances are complained of, and declared void in favor of purchasers for money or other good consideration. In the proviso contained in the fourth section, it is declared that the statute shall not extent to purchasers upon or for good consideration and bona fide. The result seems to be, that as the conveyances sought to be set aside were made upon a good consideration and bona fide, they were not fraudulent, and therefore not within the statute. And in this sense are the same words used in the statute of 13 Eliz. But it has been decided, that although in the preamble and body of the act, the conveyances there spoken of are set aside in favor of subsequent purchasers for money or other good consideration, that the words "good consideration" means valuable consideration. 3 Co. 83. The necessity of the case required this construction; because, if it had been held that conveyances should be set aside in favor of subsequent purchasers for a good consideration, this dilemma must have been encountered, that conveyances for a good consideration and bona fide, spoken of in the proviso, must be set aside in favor of subsequent purchasers for good consideration; which would be absurd. It was therefore unavoidable that the words "or other good consideration," in the body of the act, should be construed to mean valuable consideration.
But it has also been decided, that as the words "good consideration," in the body of the act, means valuable consideration, the same words in the proviso in the fourth section means the same thing. Surely they ought, if there be the same necessity for it. We have seen, in the case first put, that there is a necessity for it. In the case last put, that necessity is not so obvious; and, if not, why shall (450) we not be governed by the plain import of the words? By doing so, the child would retain what justice required the father to give it, and what he had given bona fide; and not be dispossessed whenever the whim and caprice of the parent might cause him to sell it to a purchaser for valuable consideration, whether he had notice or not of the gift to the child. But, says Newland, in his Essay on Contracts (Newl. 408), after reciting the arguments on both sides of the question, "although these arguments may shew that a different construction, with respect to voluntary conveyances founded on a meritorious consideration, ought at first to have been put on this statute, it is now too late to dispute this point; it having been settled by several solemn decisions, that such conveyances, notwithstanding the merit of their consideration, are, with respect to purchasers for valuable consideration, fraudulent and void."
Be this as it may, the Law was understood differently in 1777 (Cowp. 710) shortly after we separated from the mother country. And if the Law, as then declared by Lord Mansfield, meets with our approbation, it would be wrong to sacrifice our opinions to decisions which may have taken place since; more particularly, as I think, the construction then put upon the statute is more suitable to the nature of personal property in this State than a contrary one.
I am aware that some decisions have taken place in this State, which indicate that those who made them thought differently. But it may be observed, that the question we are now considering was not made. In Ingles v. Donaldson, 3 N.C. 57, which was an action brought for a slave, it is to be regretted that the question was not made; as we could have had the opinion of Judge Haywood on it. No one holds his judicial opinions in higher estimation than I do. But it will be readily seen in that case, that the Court took it for granted that the statute applied to the case, and its (451) mind was only occupied in the proper application of the principles of the statute. The cases referred to in Ingles v. Donaldson prove this. Buller Ni. Pri. 260. 5 Co. 60. They were cases of real property, and prove nothing against what I now contend for.
But if this statute be not in the way of a recovery, we are, secondly, to inquire whether the act of 1784 operates to prevent it.
I am satisfied, for the reasons given in Sherman v. Russell 4 N.C. 79, that the act of 1784 requires that all gifts, as well as sale of slaves, shall be in writing; otherwise, as there expressed, it would follow that parol gifts, although the donee did not remain in possession after the gift, would be good, and a parol sale for a valuable consideration, and accompanied with possession, would be void: a difference between gifts and sales which I think the Legislature never intended. And were we now, for the first time, to fix a construction on the act, I would say, that all parol gifts and sales should be void as between the parties thereto; that no person should be divested of his property in slaves by parol evidence; that a title to slaves should not be conveyed to any person by parol; and that all such titles should be, as the act emphatically expresses it, void. But this question has been put to rest by Knight v. Thomas, 2 N.C. 289, amongst others. In that case it was said, that it had been decided by the Court that a parol conveyance of negroes was good as between the parties, but was void as to creditors; as well creditors after the conveyance as those who were such at the time; and with those decisions the Court in the case agreed. And in Hancock v. Hovey, 1 N.C. 152, it was held by the Court, that as the slave was delivered and the possession kept by the donee's guardian, no deed of gift was necessary, because creditors and purchasers were not concerned. There was certainly another reason, and that created by the act, and that was, that a person should not be compelled (452) to part with his slaves, except a written conveyance for them be produced against him; for, in this respect, he was shielded as by the statute of frauds and perjuries.
The act declares that "Wheras many persons have been injured by secret deeds of gift to children and others, and for want of formal bills of sale for slaves, and a law for perpetuating such gift and sales, for remedy whereof, c. Be it enacted, that all sales of slaves shall be in writing,"c. The remedy was for creditors and purchasers, for none others could be injured; as to them, all gifts and sales of slaves not in writing were void: more particularly as to purchasers; for laws had been enacted before that time for the benefit of creditors. If the law then required that all conveyances of slaves should, as to them, be in writing, it followed that sales and gifts not in writing should be void, and the original owners, as to creditors and purchasers, should still be considered as the legal owners, so that they could convey the property in slaves to subsequent purchasers by deed, whether such purchasers had notice of a former gift of sale without deed or not: for, if they had notice, they thereby knew that such sale or gift, as to them, was void. It would not do to say that the title of such donee or vendee depended upon the fact, whether the subsequent purchaser had notice or not. The act of 1784 declares such gifts and sales to be void, but says nothing about notice. If the act under such circumstances declares the Defendants' title to be good, we have no right to say that it shall not be good, because another circumstance does not appear; namely, that he purchased without notice. This is not the case, where a person has a title made to him, knowing at the same time of another person's equitable title to the same property. In such case the legal title would prevail at Law, but the person obtaining the legal title would, in equity, be considered a trustee for the equitable claimant. So in this case, if the Defendant were to apply to a Court of Equity for a favor, stating that he had notice of the Plaintiff's claim (453) when he purchased, perhaps he would not on that account, meet with redress. But here we can only notice legal rights. In Latham v. Outen, 3 N.C. 66, it was not only decided that upon a gift made by a parent to a child, a deed of gift shall be executed and proved and registered, but that a subsequent purchaser, as Latham was, should be entitled to the property in case there was no deed. No question was then made whether Latham had notice of the gift to the daughter or not; and I take it for granted, that the Court considered that circumstance immaterial, or notice would have been taken of it as weighing something for one party or the other. Upon full consideration of the case, I think the rule for a new trial should be discharged.
HENDERSON, Judge: concurred in opinion with Judge Hall.