Whitaker v. Whitaker, 12 N.C. 310, 1 Dev. 310 (1827)

Dec. 1827 · Supreme Court of North Carolina

12 N.C. 310, 1 Dev. 310

Matthew Whitaker, adm’r of Levi H. McLean, v. Carey Whitaker, ex’r of William Taylor.

From Halifax.

A slave hired out, is a chose in the possession of the owner. There, fore, when the slave of a feme sole was, before her marriage, hired for a year, and the husband died during the term, the property does not survive to the wife, but vests in the personal representative of her husband.

Detinue for a negro, and on the trial, the Jury found specially, the following facts. The slave in question was the. property of Elizabeth Whitaker, and was hy her hired out for the year 1825» she being of full age and unmarried. During the term, Elizabeth inlmnar-ried with the Defendant’s testator, who died before its expiration. At the end of the year 1825, the slave came into the possession of the widow, the former owner, who agr eed with the Defendant to pay hire for it, if in law it belonged to him. Elizabeth) the widow, was in possession of the slave under this agreement, until she intermarried with the Plaintiff’s intestate, «ho continued if until his death, when'the Defendant took the slave into his possession, claiming as executor of Taylor.

Upon this verdict, his honor Judge Daniki gave judgment for the Plaintiff, and the Defendant appealed.

No Counsel appeared for either party in this Court,

Hendkrsox, Judge.

The case depends upon the effect which a contract of hieing has upon the possession. If it divests the owner of the possession, and places it in the person hiring, the thing hired ceases to he a chose in possession, and becomes a chose in action, and therefore, does not pass absolutely, but sub modo only, from the wife to ihe husband, upon their intermarriage.

A contract of hiring, is not a sale of the thing for the period of hiring; the property remains as it did before, —it is a contract for the use of the thing hired. The hirer is a mere bailee, or locum tenens for the owner, and only .bolds the property for him. The general property draws to it the. possession, as lone; as the occupant, or qualified owner, retains the occupancy. At any rate, the possession of the hirer is not a possession fo*1 himself; for nothing is more common than the maxim, that the possession of the bailee, is that of the bailor, and hiring is a species of bailment. If the hirer possessed for himself, he could not possess for another, whose possession has continuance, and is exclusive of his. He is called the qualified owner, not to express his ownership, or that l¡e has any part of (he property, but. for want of a proper term to express his interest in it.

I therefore think the owner’s possession is not disturbed by the hiring; that the. occupancy of the hirer is perfect >y consistent with it, and then fore docs not digest it; that the owner has such a possession, that he may either sell or give the property. Oí course, in the pro. sent case, the marriage was a complete gift of the slave in question, to the first husband. For an inability to give, sell or transfer, is the reason why (he marriage is not a perfect gift e? the wife’s dioses in action to the husband, they being incapable of a complete transfer — not for the reason generally given, that if is selling a right of going to law, and thereby stirring up lawsuits, but because such things are not property, and property only is the subject of transfer.

Per Curiam. — Judgment reversed, and judgment far the Defendant.