Cowan v. Green, 7 N.C. 569, 3 Mur. 569 (1819)

Nov. 1819 · Supreme Court of North Carolina

7 N.C. 569, 3 Mur. 569

James Cowan v. Moses Green.

. From Mecklenburg.

A case being- sent to this Court upon a particular point, and this Court, upon looking into the record discovering that there were other material points arising in the case and connected with its merits, declined deciding the point sent up, and awarded a new trial, that all the circumstances relating to the points discovered by this Court, might be examined in the Court below.

In an action of detinue for a slave, brought by a mortgagee against a purchaser from the mortgagor, a single question was submitted to this Court, to wit, whether the mortgagor’s possession of the slave, after the mortgage deed was executed, was fraudulent per se against subsequent purchasers. — The mortgage deed and the bill of sale to the Defendant, a purchaser, formed part of the case, and the mortg-age deed appeared not to have been registered within fifty days from the time it rvas made, nor until after the registration of the bill of sale to the Defendant. A new trial awarded, because the merits of the case were not disclosed by the statement sent up.

This was an action of detinue for a negro slave named Letty. Pica, general issue. The facts of the case were, that McBrydc being the owner of the negro slave Letty, conveyed her with others to the Plaintiff Cowan, in mortgage, to secure a debt which ho owed to the Plaintiff. The. conveyance was made on the 1st day of August, 1814, and McBrydc continued in the possession of the slaves, using them as his own, for a few months, when lie sold three of them, for the purpose of raising money to discharge part of the debt due to the Plaintiff. This sale was made with the knowledge and. consent of the Plaintiff, who, to that end, was consulted both by the purchaser and McBrydc. The other slaves remained in McBrydo’s possession until the year 1815, when he sold and conveyed Letty to the Defendant, for a full and valuable consideration paid to him. It was contended on behalf of the Defendant, that the possession of tiie slaves by McBrydc after his conveyance to the Plaintiff (it not being set forth in the conveyance that McBrydc was to continue in possession) was fraudulent in law as to a subsequent purchaser, and therefore the convey-anee to the Plaintiff was void as against the Defendant. It was further contended that if such conveyance was not fraudulent per se, yet the Jury ought to find it to be fraudulent, because the Plaintiff had suffered McBryde not only to continue in possession of the slaves, but also to use and dispose of them as his own. The presiding Judge reserved the first point, and left the second to the Jury, who found for the Plaintiff, subject to the opinion of the Court upon the first point.

Upon this statement of facts, the case was sent to this Court, and the mortgage deed to the Plaintiff and the bill of sale to the Defendant, formed part of the case. Upon looking into the case here, it was observed that the mortgage deed to Cowan, the Plaintiff, had not been registered within fifty days after its execution, nor until after the registration of the deed to the Defendant. And this Court, being of opinion that these facts, and the circumstances connected with them, ought to have been taken into consideration in deciding the case, awarded a new trial.

Tavuor, Chief-Justice,

delivered the opinion of the Court:

The case sent up refers to the Court a single question, whether McBryde’s possession of the slaves makes the deed fraudulent and void ? If it be decided that it docs not, judgment is to be entered for the Plaintiff. But upon looking into the deeds transmitted with the case, it will appear that there is a still more important enquiry $ for the mortgage, deed to Cowan was not registered within fifty days from the time it was made, nor until after the registration of the deed 1o the Defendant. If, by this, the Plaintiff has lost his priority, the title of the slave is not in him. So, that the merits of the case are not disclosed by tbe statement. It is therefore proper that there should be a new trial, for the purpose of bringing forward those other circumstances which relate to the title.