Rhodes v. Holmes, 9 N.C. 193, 2 Hawks 193 (1822)

Dec. 1822 · Supreme Court of North Carolina

9 N.C. 193, 2 Hawks 193

Rhodes v. Holmes, surviving executor of Spiller.

From Robeson.

:?nles cf slaves by parol are valid as between the parties to such sale? and where neither purchasers or creditors are affected.

ri»e act of 17"84, ch. 22S, sec. 7, was made for the benefit of creditor? only.

When a bill of sale is not necessary, if one be given, the vendor therein ..ball not set up want of registration against the vendee’s title.

\n unregistered bill of sale for a slave, as between vendor and vendee, may be used as evidence of title, and the execution thereof may be proved on the. trial according to the rules of evidence in other cases of deeds.

This was an action of covenant. The Defendant’s ientaior, in his life-time, had sold and delivered to the Plaintiff, certain negroes, and in the bill of sale for said negroes he covenanted ia the following words, viz. “ And íf Í hereby promise for myself, my heirs, executors, and “ administrators, to warrant and defend the said negroes Ji as before named, unto the said Rhodes, his heirs and u assigns forever, against the claim of all persons what- “ soever.” The bill of sale was duly proven by the oath of the subscribing witness, and ordered to be registered 30th October, 1798 ; and the following endorsements were made thereon, viz. “ The 39th November, 1798, “ then was the within bill of sale registered in the Re-t4 g,isj-el,)s 0fgce 0f Robeson county — registered in Book “ H. folio the 274th.” — (Signed) “ Wia. Regan, Ass’t.” “ Registered in the Register’s office of Robeson county— “ Book JEL page 274.” — (Signed) “ Neill Buie, Regis- “ ter.” It was admitted that this latter endorsement was made after-the trial of tiie suit below.

The Defendant below objected to the introduction of this bill of sale in evidence, because it appeared from the certificate of Wm. Regan that he was only an assistant? and he signed his name as such — and because the certificate of Neill Buie, the Register, was without a date — and therefore that the bill of sale had never been duly registered. This objection was sustained by the Court, and the evidence rejected. The Plaintiff then offered to prove the execution of the bill of sale by introducing testimony of the hand-writing of the subscribing witness, who was dead, which also was refused him by the Court, am he was nonsuited. A rule was then obtained to shew cause why the nonsuit should not be set aside and a new trial granted, aiid on argument the rule was discharged, and judgment accordingly 5 from which judgment the Plaintiff appealed to this Court.

Searwell for the Plaintiff.

The registry acts were intended for the benefit of third persons, not of the parties to the instrument. The act of 1784 deciares the sale shall be in writing, and that the bill of sale shall be void if not recorded. The sale was good and effectual at first. The true question in the case was not whether the paper conveyed a title, but it was this, had the grantor any title ? ■ This covenant does not follow a transfer of the property into the hands of an assignee, but is a mere naked engagement, not dependant on any estate passed, and on it alone is this action brought. As between vendor and vendee, this Court has said there is no occasion for any writing, a fortiori, there is no need of recording.

But if recording be necessary, there was here sufficient evidence of it. The register is a ministerial officer, and may make a deputy — {Com. Big. Officer, V.) A deputy deriving his authority from a principal, may do all that 11k* principal can, and may act in his own name — Barker v. Rett, (l Id. Haym. 659.) The acts of an officer de, facto who comes into office by colour of title, as it concerns the public or third persons, are valid — (7 Johns. Hep. 549 — 9 Ibid. 135.)

Reputation is sufficient proof of a deputy officer — (3 Johns. Hep. 431.) When all the requisites have been performed which authorise a recording officer to record an instrument, and an order for that purpose has been given, the instrument in law is considered as recorded, though the manual labour be not done — Marbnnj v. Madison, (1 Crunch, 161.)

Taylor, Chief-Justice.

That sales and gifts of slaves by parol were valid under the act of 1784, as between the parties, and when there were neither purchasers nor creditors to be affected, is a construction of that act which was probably coeval with its passage, in a case decided in 1796, it was admitted by the Court and Bar, to have prevailed anterior to that period, and it has not since been departed from — (Knight and wife v. Thomas, 1 Hayw. 289.) Now if a sale by parol, and according to the Common Law, was available between the parties, the reason is stronger wherefore a bill of sale shall be so, since the evidence of the contract does not so much depend upon the memory of witnesses. The want of formal bills of sale, and the want of a law for perpetuating them, are the mischiefs pointed at by the Legislature, as producing injury to others by secret sales and gifts. Where a bill of sale was necessary, it was essential to the title that it should be recorded, for ihe purpose of giving fall notice to purchasers and creditors. But where a bill of sale was not necessary, but merely made by the parties from abundant caution, there can be no reason why the ven(jor gjlouj(] set Up the want of registration against his vendee’s title for he does not want any notice of the contract, and no other person can suffer injury from the omission to register.

If the second section of the act of 1789, ch. 315, were a separate and unconnected statute, I admit that its effect would be to render “ void and. of no force whatever” this bill of sale, for want of registration within twelve months after the making thereof. But it was not only made in pari materia with the act of 1784, but with the express and only view of allowing a further time for the recording bills of sale and deeds of gift where it was neglected before that period, and permanently enlarging the time within which future bills of sale and deeds of gift should be recorded. In other words, where bills of sale and deeds of gift are necessary, under the act of 1784, they may and must be recorded according to the act of 1789. But where they are not required to be made by the first act, they need not be recorded by the latter. The same remarks apply to the act of 1792, ch. 363.

Hall, Judge.

In the year 1796, it was decided in the case of Knight and wife v. Thomas, 1 Hayw. 289, that a parol sale of slaves was good as between the parties thereto ; and that the act of 1784, ch. 225, sec. 7, which declares that all sales of slaves shall be in writing, and attested by one credible witness, and registered within nine months, was made for the benefit of creditors only.

In the present case it appears, that, the negroes, for the value of which this suit was brought, were delivered to the purchaser, and if there had been no bill of sale, the sale would be valid as between the parties, according to the case of Knight and wife v. Thomas. But the ques?tion is, Is the purchaser in a worse situation than if a bill of sale, not registered, had not been executed ? if tlio act of 1784 was made for the benefit of third persons, I cannot think he is ; for if that act will dispense with a hill of sale altogether, I am at a loss to see why it will not dispense with a registration of one, for that too was required for the benefit of third persons. Í cannot but think that an unregistered deed as between vendor and vendee, may be used as evidence of title, as equal, at least, to parol evidence.

it may be thought that the act of 1784, in this respect is like the act of 173 5, ch. 7, sect. 1 : that act declares “ that no conveyance or bill of sale for lands, in what “ manner or form soever drawn, shall lie good or av&il-6i able in law unless the same shall be acknowledged by “ the vendor or proved by one or more evidences, &c. " and registered by the publick Register within twelve “ months.” It is to be observed that tille to persiana! property of any kind passed at Common Law by parol contract or by deed, as completely as slaves now pass by registered deeds, and as between the parties, the title to slaves may still be conveyed as at Common Law! But as to lands, at Common Law, title to them could only he conveyed by livery of sdsiw — it could not be conveyed like personal property. But the stat. of uses, 27 lieu» 8, ch. 10, has given use to other modes of conveying real estate, in which livery of seisin is dispensed with : and it is of those kinds of conveyances that the act of 1715 speaks. Before the stat. of uses a deed of bargain and sale did not convey the legal title to land ; but by virtue of the stat. it has that effect, provided it shall be registered, for without registration it conveys no title. So' that an unregistered deed of bargain and sale of lands, and an unregistered bill of sale for slaves, are different in this respect, that the first convey s no title at Common Law, the latter does j hence before the deed of bargain and sale for lands is registered, nothing passes; 1 mean jf it is not registered in tbe time limited by law, nothing passes — if it is, the title by relation passed by the delivery. The stat. of uses, ch. 16, declares that no lands, tenements, &c. shall pass from one to another, &c. except by writing indented, sealed, and enrolled at one of the Courts of Westminster, or else within the county or counties where the lands are situated.

But it was not practicable to register conveyances in this State according to the directions of the statute, of uses. Hence it became necessary that the Legislature should point cut the mode in which registration should be made; and they have done so by the act of 1715, and it is indispensable that conveyances under the stat. of uses should be registered according to that act, or they are void: — and if as before observed they are void under the act, they cannot at Common Law (as an unregistered bill of sale for slaves would do) convey any title. Therefore, (without giving any opinion on the other point made in the case) I think the rule for a new trial should be made absolute, and that the Plaintiff be at liberty to prove the bill of sale according to the rules of evidence as in other cases of deeds.

Henderson, Judge, concurred,