Picot v. Sanderson, 12 N.C. 309, 1 Dev. 309 (1827)

Dec. 1827 · Supreme Court of North Carolina

12 N.C. 309, 1 Dev. 309

Peter O. Picot, adm’r of Luke Legget, v. Thomas Sanderson,

From Washington.

A divery is essential to a gift. Where the obligee gives the obli-gor an order on.his agent for the delivery of the bond, which was not obeyed — it was held, that the gift being incomplete, might be revolted- — ¡and that resuming the possession and 'bringing suit, was a revocation.

Debt, upon the single bond of the Defendant, payable to the Plaintiff’s intestate. On the trial, before Marxist Judge, the Jury returned a verdict for the Plaintiff, subject to the opinion of the Court upon the following facts. After the bond became due, the Plaintiff’s intestate voluntarily, and without consideration, drew a» order on his agent, in whose, hands the bond was placed for collection, directing him to deliver it up to the Defendant. This direction-was not obeyed by the ..gent, who, upon the obligee’s death, banded it to the Plaintiff, by whom this action was brought.

His Honor, thinking that these facts.formed no harto the action,'judgment was entered up for the Plaintiff — : from which the Defendant appealed.

1Jevereux, for tiie Defendant, submitted the case without argument. No Counsel appeared for the Plaintiff.

HenbessoN, Judge.

-The order for the delivery o£„ the bond is clearly not good, as a payment or satisfaction of the debt, it resembles more the gift of the bond itself; but this it.cannot be, for want of a delivery, which is essential, to a gift. Without a delivery, the transaction is a mere contract or agreement to give, which, being without consideration, cannot be enforced-If the person on whom the order was drawn, had delivered tiie bond, in pursuance of the order, before it was countermanded, the gift would have been complete.— But the owner, or bis representative, might countermand it. which was done in the present case.

The only authority I have seen, which in any measure supports a gift without delivery, is taken from Brooke’s Abridg. (Trespass, pl. 303) there it is said, if A, in London, the owner of goods which are in York, give them to B, and before B has obtained the actual possession, a stranger take them, B may maintain trespass for them. If this be law, it is on the ground, that the action is brought against a stranger, without any revocation on the part of the donor.

The executor, by resuming the actual possession, and bringing the present action, has clearly revoked the gift-» (Withers v. Lys, 3 Ser. Low. 9.)

Per Curiam. — Judgment affirmed.