Opinion
June Term, 1825.
Where A. conveyed a slave to B., and on the same day B. by writing declared that he "put the said slave into the possession of A., and did give and grant the services of the said slave to A. during her natural life, free from any charge or claim for such services during her natural life," it was Held, that this did not operate to convey the title to the negro to A., but parted with the possession only, without compensation for his services.
DETINUE for negro slave Tom. The plaintiff claimed title to the said slave under a deed of gift made to his testator by Mary Buckhart on 11 May, 1816, duly proved and registered.
J. Martin for appellant.
Ruffin contra.
The defendant pleaded the general issue, and rested his defense upon a deed executed by plaintiff's testator to Mary Buckhart, on the same day, 11 May, 1816, which deed is in the following words, viz.:
(561) I, Peter W. Smith, in consequence of a deed of gift made to me 11 May, 1816, by Mary Buckhart, for a negro boy slave named Tom, do hereby put the said negro boy named Tom into the possession of the said Mary Buckhart, and give and grant the services of the said negro boy named Tom to the said Mary Buckhart during her natural life, free from any charge, claim or demand for his services during the term of the natural life of the said Mary Buckhart, her natural life. In witness whereof I have hereunto set my hand and seal this 11 May, 1816. PETER W. SMITH. [L. S.]
This deed was proved on 18 October, 1824, and thereupon registered.
On the trial below it appeared in evidence that on 11 May, 1816, when the deeds were executed, Mary Buckhart made a formal delivery of the slave Tom to Peter W. Smith at the same time that she delivered the deed of gift, and that immediately thereafter Peter W. Smith delivered to her the slave Tom. Mary Buckhart has since died, and the defendant claimed under her will.
The jury found a verdict for the plaintiff, subject to the opinion of the court upon the question whether the deed made by Smith to Buckhart vested in her the absolute estate in the slave Tom. The court, holding that it did, gave judgment for the defendant, and the plaintiff appealed to this Court.
The operative words in the deed from the plaintiff's (562) intestate to Mary Buckhart are very different from those which are generally used in conveying title to property of this description. They are that he puts the said negro boy named Tom into the possession of the said Mary, and gives and grants the services of the said negro boy to the said Mary during her life, clear of any demand for his services during the time of the natural life of the said Mary. Nothing is said respecting the title of the said negro, and I (563) think the grantor intended to part with the possession only of said negro, and exempt Mary Buckhart from all accountability for the services of said negro during her life; and if it were allowable to look into the other facts set forth in this case this opinion would appear to me more strongly fortified, for it appears that Mary Buckhart, who was the owner of this slave, had conveyed her title to plaintiff's testator on the same day that the conveyance was made to her as before expressed. Now, it is not likely that she would have made that conveyance if she had intended that the same interests should be reconveyed to her on the same day. I think that judgment should be entered for the plaintiff.
The rest of the Court concurring in this opinion,
PER CURIAM. Reversed.
Cited: Smith v. Davis, 30 N.C. 510.