Opinion
11-13-1828
Moses v. Denigree
Wyndham Robertson, for the Appellant. The Attorney General, and S. Taylor, for the Appellee.
Judgment affirmed.
SYLLABUS
This was an action brought in forma pauperis in the Borough Court of Norfolk, by Moses, a negro man, to recover his freedom of the Appellee, Denigree, by whom he was held and treated as a slave. Judgment was rendered for the Plaintiff in the Court below, and a Supersedeas obtained, to bring the cause before the Superior Court of Norfolk County. The Superior Court reversed the decision of the Court below, and the Defendant, Moses, appealed to this Court.
At the trial of the case in the Borough Court, the parties, by their attorneys, agreed a case in lieu of a special verdict, which sets forth the following facts: Samuel Pretlow of Surry County, being at that time the owner of the Plaintiff, then a little boy, on the 13th day of November, 1781, signed, sealed and acknowledged, in the presence of two witnesses, a writing purporting to be a Deed of Emancipation in favor of the Plaintiff, in the following words: " I, Samuel Pretlow, of Surry County in Virginia, after deliberate consideration, and from the conviction of my own mind, being fully persuaded that freedom is the natural right of all mankind, and that no Law, moral or divine, hath given me a right to, or property in, the persons of my fellow-creatures; and being desirous to fulfill the injunction of our Lord and Saviour Jesus Christ, by doing to others as I would be done by, do therefore declare, that having under my care a negro boy, named Moses, aged about six years, do therefore, for myself, my heirs, executors and administrators, hereby release unto him, the said Moses, all my right, interest and claim, or pretension of claim whatsoever, as to his person, or to any estate he may acquire, after he shall attain to the age of twenty-one years, which will be on the 31st day of the twelfth month in the year 1796, without any interruption from me, or any person claiming for, by, from, or under me. In witness whereof, I have hereunto set my hand and seal, this thirteenth day of the eleventh month in the year of our Lord 1781." The above Deed of Emancipation was recorded on the 26th day of April, 1819, in the County Court of Surry, on proof of the hand-writing of one of the subscribing witnesses, (both of the witnesses being then dead.) On the 14th day of November, 1781, Samuel Pretlow made his Will, which was recorded on 23d of April following, after the death of the said Pretlow. The Testator devised a tract of land to his son, Samuel, in fee, and also the labour of his negro, Robin, and three others, until they " become free, agreeable to the manumissions I have given under my hand and seal," and " bequeathed to his daughter, Mary, to her, and her heirs forever, the labour of four Negroes, viz: Moses, Joe, Tom and Tabb, until they become free." The said writing, purporting to be a Deed of Emancipation, was found among the papers of the acting Executor about fourteen years before the institution of this suit, and was never given to the Appellant, but had been offered by the Executor to the Court many years before, to be recorded, when the Court refused to receive it. Samuel Pretlow remained in possession of the Plaintiff till his death. After that, with the assent of the Executor, the Plaintiff came into possession of Mary Pretlow, the daughter and legatee of the Testator, and so continued until the intermarriage of Mary Pretlow with one Samuel Hart. The Plaintiff was held by said Hart until his death, in about 1800, when he was sold by Hart's Executor to the Defendant, Denigree. The Plaintiff came of age on the 31st of December, 1796.
Wyndham Robertson, for the Appellant.
The Attorney General, and S. Taylor, for the Appellee.
OPINION
JUDGE CARR
On the 13th of November, 1781, Samuel Pretlow, by Deed, emancipated a negro boy of six years old, named Moses, " after he shall attain to the age of twenty-one years." On the next day he made his Will, in which there is the following clause: " I give and bequeath unto my daughter, Mary, to her, and her heirs forever, 1501. in specie, and the labour of four Negroes, viz: Moses, Joe, Tom and Tabb, until they become free." The Will was admitted to record in April, 1782, the Deed in 1819, and then on proof of the hand-writing of one of the subscribing witnesses, it being stated that they were both dead. Moses, on the death of Pretlow, went into the possession of Mary Pretlow, whose husband held him till his death, about 1800, and the husband's Executor sold him to Denigree, the Defendant. This is the substance of the case agreed, and presents this question; is Moses entitled to his freedom? In 1723, it was enacted that no person should emancipate a slave but for meritorious services, and by permission of the Governor and Council. This Act continued in force till May, 1782, when a Law passed, saying, " That it shall hereafter be lawful for any person, by his last Will and Testament, or by any other instrument in writing under his hand and seal, attested and proved in the County Court, by two witnesses, or acknowledged by the party in the Court of the County where he resides to emancipate and set free his slaves, who shall thereupon be entirely and fully discharged from the performance of any contract entered into during servitude, and enjoy as full freedom, as if they had been particularly named, and freed by this Act." Did the Deed and Will either separately or conjointly entitle Moses to his freedom? The Deed was an attempt to do what was expressly forbidden by Law, the Act of 1723 declaring, that " No negro, mulatto or Indian slaves, shall be set free upon any pretence whatsoever, except for some meritorious services, to be adjudged and allowed by the Governor and Council, and a license thereupon first had and obtained." I suppose it need hardly be said that a Deed, made in direct violation of a positive Law, is void. If this Deed had been made after the Law of 1782, it would have been of no avail, for it has never been recorded according to the directions of that Act; and this Court, in Givens v. Manns, 6 Munf. 191, and Lewis v. Fullerton, 1 15, have declared, that unless the Law is pursued in that respect, the Deed is void. By the Deed, then, as a Deed to emancipate, Moses gained nothing. The Will, taken by itself, is merely a bequest to Mary of the labor of Moses and three others, until they become free, and cannot, without violating every rule of construction, be taken to impart any right to Moses. But it is said, that the Will evidently refers to the Deed, and must be taken in connection with it. I have no doubt the Testator had that Deed in his mind when he wrote his Will; but this, so far from showing that he meant by his Will to confer freedom on Moses, is strong proof, (as was well remarked at the Bar,) that he had no such meaning, but considered that as done by the Deed already. This seems still more clear by another part of the Will, where, in the first bequest of the labor of other slaves, he says, " until they become free, agreeable to the manumissions I have given under my hand and seal." It is clear, then, that the Testator did not intend to free Moses by Will, and in the Will merely referred for the term of service, to the Deed by which he supposed he had given freedom, and this reference to a Deed void ab initio, it will hardly be contended, could make it valid. But, suppose the Testator had made the Deed a part of the Will; nay, suppose by the Will itself he had given to Moses his freedom after twenty-one, I say such a Will would have been void, and this even under the decision of Pleasants v. PleasantsCall 319, a case which has surely carried this doctrine as far as it ought to go. There, the Testator did not pretend by his Will to vest a present right to freedom, in violation of the Law, but devised his slaves to his children, with a clause, that whenever the Laws should permit it, they might have their freedom, and created a trust to support that devise. And the Decree in that case states, " If the Testators had devised the slaves, upon condition that the devisees should emancipate them immediately, the condition being unlawful, would have been void, and the property vested; yet the condition, that they should become free when the Law would permit it, was not of that sort." Here, neither the Will nor the Deed looked to the passage of a Law as a condition, but gave freedom upon the sole condition of the negro's living till twenty-one; and this was against Law, and void. I think the Judgment of the Superior Court must be affirmed.
All the other Judges concurred, and the Judgment was affirmed.