The charge of the Judge below was correct, and the judgment must he affirmed.
Shelton v. Yancy, 12 N.C. 370, 1 Dev. 370 (1828)
June 1828
·
Supreme Court of North Carolina
12 N.C. 370, 1 Dev. 370
David Shelton v. Charles Yancy.
From Granville.
The purchaser of a slave at auction, where the terms were that bond and surety was to be given before the property passed, obtains a title, although the bond of another person is taken for the purchase money.
This was an action of replevin for a negro, and on the trial it appeared, that one Field being indebted to the Plaintiff, it was agreed between them that Field should purchase at an auction to be held by one Epper-son, the negro in dispute, and the Plaintiff was to take him in discharge of his debt. Field applied to the Defendant to bid off the negro for him, which was done; after the slave was cried off, the Defendant requested he might be charged to Field, But Epperson refused to do this, and directed that he should be charged to the Defendant, who observed that if he was to be held responsible for the negro, he would hold on upon him. The terms of the sale being, that bond and surety should be given for the price of the negro, before the property was changed, Field applied to the Plaintiff to become his surety, who declined. A similar request was then made by Field to the Defendant, who consented, upon condition that he should be discharged at the next County Court, to set within a few days. After Field had given surety, he delivered the negro to the Plaintiff, as his property, in the presence of the Defendant, and received a discharge to the amount of the value of the negro. After this delivery, the Defendant said to the Plaintiff, that the negro was to be his (the Defendant’s) unless he was released from his suretyship for Field, at the next County Court; to which the Plaintiff assented. Field wholly neglected to release or to indemnify the Defendant, whereupon he took the negro in his possession. There was no evidence that the Plaintiff was pre*371sent at t!ie time Field agreed to indemnify the Defendant. Neither was the re any evidence t hat the negio whs de-. livered to the Defendant, or was in his possession before the taking for which the. action was brought.
His Honor, Judge Danieu, charged the Jury that the legal title to the negro vested in the Defendant, upon his bidding him off, and the price being charged to him.'— That if-the Defendant delivered the negro to the Plaintiff, either under an agreement between the Defendant and Field, or the Plaintiff and Defendant, or Field and the Plaintiff, ás the property of tiie Plaintiff, the title thereby vested in the Plaintiff, and he was entitled to a verdict. But if Fancy insisted on retaining the title •to the negro, until lie was indemnified on account of his responsibility for Field, and only delivered the negro to the Plaintiff to keep, until he was indemnified, then the title did not pass to íhé Plaintiff upon the delivery to him, but remained in tiie Defendant, and he had a right to re-take the negro, upon Field's neglecting or refusing to indemify him.. Under this charge, the Jury returned a verdict for the Defendant,- and the Plaintiff appealed.
JYash, for tiie Plaintiff, contended,
that the Judge erred in saying to tfie Jury that the property in the negro vested in the Defendant, upon his bidding him off. He should have instructed them that it vested in him only when he complied with the terms of the sale.
Badger & W. H. Haywood, contra,
insisted that, the charge of the Judge. Was to be taken with reference to the objection made to the Defendant’s title, which was, that as -Fancy had no bili of sale, he. had no title. The instruction to the Jury was that a sale and delivery su-perceded the necessity of a bill of sale, and that such a sale was not within tiie act of 1821.