Palmer v. Popelston, 8 N.C. 307, 1 Hawks 307 (1821)

June 1821 · Supreme Court of North Carolina

8 N.C. 307, 1 Hawks 307

Palmer v. Popelston.

From Martin.

Under the act of 1792, a sheriff’s bill of sale for a slave is like the bill of sale of any other person; and when the purchaser takes the actual possession of the slave, the conveyance must be recorded in the county where such purchaser resides.

Detinue for two negro slaves. The Plaintiff in support of his title, proved by the subscribing witness, a bill of sale from the sheriff of Washington county, for the slaves in suit. At the time of the execution and registration of this bill of sale, the vendee lived in Martin county ; the bill of sale had been registered in Washington county. It was objected by Defendant, that as the paper produced, had not been registered in the county in which the vendee lived, it could not be read in evidence, and the Court sustained the objection. Plaintiff then submitted to a non-suit, and made a motion for a new trial, grounding his application on an affidavit stating that the bill of sale had been recorded in the county in which the vendor, and the individual against whom the process under which the slaves were sold, had issued, both lived. That he was ignorant of the laws relative tqf registration, and supposed in this case the bill of sale had been regularly and properly recorded, particularly as he had submitted it to counsel, and had recovered another negro by a former suit, on the trial of which, this bill of sale was read in evidence without objection. The motion a new trial was refused, and judgment rendered against the Plaintiff for costs, whereupon he appealed.

Gaston for appellant.

The act of 1784 requires sales of slaves to. be in writing and recorded. The act of 1789 preso'ibes the time of recording, but neither points out the place of registration. The act of 1792 points out the place, but it is believed does not apply to a judicial sale. The 2d section applies only to the case of a private contract of sale where the vendor might retain possession under special agreement,'and cannot apply to the Sheriff, who, as stick, can retain no possession at all. The policy of the law requires judicial sales to be rendered notorious in the places where the sale takes place, and consequently that the registration ought to be where th.e sale is made. A sale made before the Master is not within the stat. of frauds — [Sug. Ven. 78.)

Drew, contra.

The words of the act embrace this case, a sheriff’s sale and conveyance is still a sale and conveyance. The policy of the act requires that the bill of sale should appear of record in the county where the possession is, to prevent fraud. A sale before the Master, is supported by the Court, because it is the act of the Court.

Tayxor, Chief-Justice,

delivered the opinion of the Court:

The act of 1792 requires all written transfers or conveyances of slaves to be registered in the county where the purchaser resides, provided he be in the actual possession of the slave. It makes no distinction between a Sheriff’s bill of sale and any other; and therefore, where the title is set up under such an one, there can be no doubt that the requisites of the law must be complied with. Hence the nonsuit was properly awarded: but as the objection was not taken on the former trial, the Plaintiff was surprised by it. The justice of the case, therefore, renders it fit that a new trial should be awarded, and this is done upon payment of the costs of tills and the Superior Court.