White v. White, 20 N.C. 427, 3 Dev. & Bat. 427 (1839)

Dec. 1839 · Supreme Court of North Carolina

20 N.C. 427, 3 Dev. & Bat. 427

WILLIAM WHITE vs. GEORGE WHITE.

A parol sale and delivery of a slave, made by the tenant for life and remainder man is valid; for the act of 1784, 1 Rev. St. ch. 37, sec. 19, does not prevent a parol conveyance of slaves from being good between the parties thereto; but if it did, the act of 1792, 1 Rev. St. ch. 37, sec. 19, declares bom fide sales of slaves accompanied by delivery, good without a bill of sale, and the act of 1819, 1 Rev. St. ch. 50, sec. 8, to avoid parol contracts for the sale of lands and slaves, does not affect the question, as that act applies to executory contracts only, and not to contracts executed.

Detinue for two slaves, Lucy and Baceus, tried at Ire-dell, on the last circuit, before his honor Judge Dick.

The plaintiff claimed the slaves in question under the will of his father, John White, deceased, who bequeathed the wo-1 man Lucy to his wife for life, and after her death to the plaintiff. For the plaintiff it was proved that Lucy and Bacons were jn the defendant’s possession, and that the action had been brought within less than three years from the death of the testator’s widow; and further, that Baccus was a child of Lucy, born after the defendant had taken her into possession. For the defendant it was then proved that the testator was indebted, in his life-time, to one Robert Simonton; and for the purpose of securing the debt, mortgaged to him the woman Lucy and another girl; and that, after the testator’s death, his widow and the plaintiff, to discharge the said debt, sold and delivered Lucy to Simonton, from whom the defendant afterwards purchased her.

Dec. 1839

His Honor charged the jury that if they believed, from the evidence, that the testator’s widow and the plaintiff together sold and delivered the woman LuCy to Simonton, the title passed to Simonton, although there was no bill of sale; and that the plaintiff was not entitled.to recover. The plaintiff, in submission to this opinion, suffered a nonsuit and appealed.

Badger for the plaintiff.

Bnyden for the defendant.

Gaston, Judge.

We assent entirely to the opinion expressed in the Court below. On common law principles we see no ground upon which the plaintiff can invalidate the sale made by himself and the tenant for life. It is not af-. fected by the act of 1784, 1 Rev. St. ch. 37, sec. 19, because under that act a parol conveyance of slaves is good between the parties thereto. If it were not, the act of 1792. 1 Rev. Stat. ch. 37, sec. 19, declares bona fide sales of slaves, accompanied by delivery, good without a bill of sale. The act of 1819, to avoid parol contracts for the sale of lands and slaves, did not go into operation until the 1st of January, 1821; and if it had been in operation before the sale in question, it would not have applied thereto; for executed contracts are not embraced within its purview. Choat v. Wright, 2 Dev. 289. Mushat v. Brevard, 4 Dev. 73.

Per Curiam. Judgment affirmed.