Tooley v. Lucas, 48 N.C. 146, 3 Jones 146 (1855)

Dec. 1855 · Supreme Court of North Carolina

48 N.C. 146, 3 Jones 146

WILLIAM B. TOOLEY, ADM’R., vs. HARRY LUCAS, ADM’R.

Parol evidence of the contents of a deed conveying a slave, is not admissible, if it was not proved and registered, although full proof has been made of the loss or destruction of the instrument, and proper notice given of the intention to offer secondary proof of its contents.

Action of trover, tried before Person, Judge, at the last Pall Term of Hyde Superior Court.

The plaintiff declared as the administrator of Elisha Tooley, also in the name of William B. Tooley, an infant, for the conversion' of a female slave named Jane. It was proved that for fifteen years, or thereabouts, the said girl had been the property of William B. Tooley, the elder, in his own right. In that'year, it was proved” by one Harris, that he (W. B. Tooley, sen’r.) executed a bill of sale to Nathaniel Creedle, conveying to him the slave in question, with others, for a valuable consideration, and that he, Harris, attested the deed as a subscribing witness. It was further proved that, since the death of Nathaniel Creedle, this deed had been seen in the possession of either W. B. Creedle, or in that of defendant, witness could not, with certainty, say which. This witness was the administrator de bonis non of Nathaniel Creedle, and admitted that he had been notified, as such,-to produce the instrument referred to above, but stated that he did not have the possession of that paper; never had seen it, and did not know where it was. It did not appear that this deed had ever been proved or registered.

Defendant’s counsel opposed the admission of this evidence to prove the contents of the conveyance ; but tbe objection was overruled, and the evidence admitted. Defendant excepted.

Yerdict for tbe plaintiff. Judgment and appeal.

Donnell, for plaintiff.

Rodman, for defendant.

Nash, C. J.

Tbe only question presented by this case is, as to tbe competency of tbe testimony offered by tbe plaintiff’, to prove tbe bill of sale from Tooley to Creedle. Tbe defend* ant objected to tbe evidence, upon the ground, that it did not appear that tbe deed ever bad been proved and recorded. To tbe legislative department of tbe government, belongs the power to enact laws, by which the people are to be governed, and to tbe judiciary, the right to expound them. While act* •ing within tbe scope. of their legitimate authority, their will is to be obeyed; none have a right to disobey it. Where tbe language of an Act is plain and perspicuous, tbe Act must speak for itself, unless its enactment transcends tbe power of tbe legislature. In tbis case tbe legislature has left no doubt upon tbe question presented to us. “ All sales of slaves shall be in writing, attested by at least one credible witness, or otherwise shall not be deemed valid ; and all bills of sale of slaves shall, within twelve months after the making thereof, be proved in due form, and recorded; and all bills of sale, and deeds of gift, not axuthenticated and perpetuated in manner by tbis Act directed, shall be void and of no force whatever. Rev. Stat. cli. 37, sec. 19. I need not refer to tbe proviso in that section. In tbe succeeding section, provision is made for tbe registration of such conveyances. Here, there is no ambiguity; no room for construction. If not authenticated and perpetuated as directed, that is, duly proved and recorded as directed, tbe conveyance is declared not to be deemed valid, but to be void and of no efect. So important is tbis enactment, that from session' to session of tbe Legislature, it is an invariable practice to pass a law enlarging tbe time fox proving all suclx conveyances. If a hiatus occurs iix tlxe link of this chaixx of Acts, and a subsequexxt Act should be passed, the deed nxay be px’oved and authenticated tinder the latter, but when so proved axxd authenticated, it has no relation back ; so that an execution against the bai’gainor may be levied upon the property coxxtaixxed in it. Scales v. Fewell, 3 Hawks. Rep. 18. We are xxot unapprised of the decision of the Court ixi the cases of Hancock v. Hovey, Tayl. Rep. 104, and Rhodes v. Holmes, 2 Hawks. Rep. 193, but we do xxot think they govern this. Oxxr decisioxx turns upoxx a different state of the law sixxce they were xnade. When they were pronoxxnced, it was under the Statute of 1784, ixx which the preamble to the enactment was xxxade. A preamble is no part of the law, though it is a guide to direct the Courts, as to the intention of the Legislature. We are governed by the Act of 1836, ixx which the preaxnble is omitted, axxd ixi wlxiclx there is nothing to govern the construction of tlxe general words, but the words themselves; and we do ixot feel at liberty to depart from them ; axxd that, whether the preaxnble was omitted from inadvertence or design. That it was not this inadvertence, we are justified in concluding, from the fact, that “ the Revised Code” which was passed at the session of the Legislature in 1854, ch. 37, sec. 19, exxacts “ that all written sales axxd coxxveyances of slaves shall, within two years after tlxe making thereof, be proved in due form and registered, or otherwise shall be voidS It is trxxe, this latter Act did xxot go into operation until the first of January ixx the present year, axxd it is only brought ixxto notice here, to fortify the position we have taken ixx this case. See Lambert v. Lambert, 11 Ire. Rep. 162. Carrier v. Hampton, Ibid 307. The first of these cases was in relatioxx to a coxxveyaixce of land, axxd we see in the Act little difference betweexx conveyances of land and of slaves, as to the authenticatioxx of coxxveyaxxces ; aixd the latter was upon the sxxfficiexxcy of the authexxtication of a coxxveyance of land axxd slaves.

The evidexxce offered by the plaixxtiff, to show the contents of tlxe deed from Tooley to Creedle, was incompetent, and improperly received by the Court. Eor this error, the judgment must be reversed, and a -venire de novo awarded.

Per Curiam.

Judgment reversed.