Gordon v. Wilson, 49 N.C. 64, 4 Jones 64 (1856)

Dec. 1856 · Supreme Court of North Carolina

49 N.C. 64, 4 Jones 64

GEORGE W. GORDON vs. WILLIAM G. WILSON.

A deed conveying slaves as a gift, but reserving “ enough of the hire of the said slaves comfortably to support” the donor, is not a deed in trust, but a deed of gift, and is not required to be registered within six months. The Act oT 1854, oh, 19, extending the time for registering deeds of gift to two years, applies to one executed April 8th, 1853, a year not having expired from its date to the time of that act’s going into operation.

A deed of gift, expressed to be for natural love and affection towards a bastard child, is good at common law, though there is no .delivery of the thing given at the time of its execution.

AotioN OK detinue, tried before Bailey, J., at the last Eall Term of Currituck Superior Court.

Upon the trial below, it was admitted that the slaves in question belonged to one Mary Wilson, who, in July, 1855, intermarried with the plaintiff, and that he was entitled to them, unless the title had been divested by a deed of gift' to Willis C. Wilson, who was an illegitimate son of the said Mary Wilson, and for whom the defendant held the slaves as guardian. The following is a copy of this deed of gift:

, “ To all people to whom these presents shall come, I, Mary Wilson, of the County aforesaid, send greeting: Know ye that I, the said Mary Wilson, for and in consideration of the natural love and affection which I have and bear unto my beloved son, Willis C. Wilson, of the County of Camden, and State of North Carolina, and for divers other causes and considerations me hereunto moving, have given and granted, and by these presents do give and grant, unto the said Willis C. Wilson, all and singular, the following negroes, (naming them) to have and to hold, with their increase, with a reserve of enough of the hire of the said negroes to comfortably support me while I live. * * To have and to hold, all and singular, the aforesaid negroes to the said Willis C. Wilson, his adm’r. and ex’r. and assigns forever.” (With a clause of general warranty.) Dated April 8th, 1853. Proven before Camden County Court, at Oct. Term, 1855, and registered on the 31st of the same month.

It was objected,

1. That the said writing not haying been proved within twelve months was void.

2. That being a conveyance in trust, it was void for not having been registered within six months.

3. That the said writing was not within the act of 1854, giving further time for registration.

4. That the consideration expressed in the deed, being love and affection for an illegitimate child, was insufficient to raise a use and transfer the slaves without actual delivery.

Ilis Honor, being of opinion against the plaintiff on these several points, admitted the deed'to be read ; for which plaintiff’s counsel excepted.

Yerdict and judgment for defendant, and appeal.

Smith, for plaintiff.

Heath and Pool, for defendant.

Battle, J.

The instrument of writing under which the defendant held the slaves in controversy, is neither a mortgage nor a deed in trust, but simply a deed of gift, with a reservation to the donor of a support for life out of the hires of the slaves.

Whatever effect this reservation may have in fixing a charge upon the slaves in the hands of the donee, it cannot alter the nature of the instrument with respect to the operation upon it of the registry law. As a deed of gift of slaves, the 17 th section of 37th chapter of the Revised Statutes, (which rvas the law in force when it was executed) required it to be registered within one year after its execution; but before the year had expired, the act of 1854, ch. 19, extended the time two years longer, within which period it was, in fact, regularly proved and registered. This is a full and complete answer to all the objections founded upon' a want of a proper registration.

The only remaining objection is equally untenable. Being a deed of gift of personalty, it operates ywjw’io wycre-at common law by its delivery, to convey tlie title, and does not depend upon tbe effect of the statute of uses, as in the case of lands, to transfer the seisin to a use raised upon a sufficient consideration. If an authority were necessary for this proposition, the case of Irons v. Smallpiece, 2 Barn. and Ald. 551 (4 Eng. Com. Law Rep. 635,) is directly in point. There, Abbot, C. J., says, that “ by the law of England, in order to transfer property by gift, there must be either a deed or other instrument of writing, or there must be an actual delivery of the thing to the donee.” This clearly implies that a deed of gift is equivalent to an actual delivery of the thing, and such, we believe, has always been understood to be the law of this State.

Pee Curiam. ' Judgment affirmed.