16 Ga. 20 | Ga. | 1854
By the Court.
delivering the opinion.
This is an action of trover by Martha Booth against Richmond Terrell, for eight negroes. The plaintiff relies on the following title, namely: that her father, Richard Hodges, intermarried with'Louisa Terrell, the daughter of the defendant5 and by said marriage, acquired the title to Letty, who, together with her children, constitute the property in dispute. That Mrs. Hodges died some short time after her intermarriage with plaintiff’s father; and that thereupon, Richmond Hodges loaned to his mother-in-law, Mrs. Terrell, wife of the defendant, and at her special request, and by the consent and approval of the defendant, the girl Letty, to be held and enjoyed by her as a loan, during her life-time; and at her death, one of the witnesses swears, the negro was to be returned to plaintiff who is the daughter of Richard Hodges by a former wife. The other witness testifies to the same contract, in substance, except that he states the girl was to be retened to Richard Hodges or his heirs. Richard Hodges died in 1824; and by his will, bequeathed Letty to his daughter, the plaintiff m this action.
The Court charged the Jury that the loan of a slave by one person to another, for the life of the borrower, by a parol agreement that the slave should be returned .to the lender or his
This charge is excepted to, and the only question to be determined is, did the Court submit the Law of the case correctly, upon the facts proven ?
Counsel for the defendant below and in error, insist that the charge of the Court is sustained by the decision of this Court in Bryan vs. Duncan (11 Ga. R. 67.) And also by the doctrine ruled first by this Court in Kirkpatrick vs. Davidson (2 Kelly’s R. 301,) and repeatedly recognized since, that a remainder in slaves cannot be created by parol.
And in the case in Hill, Judge O’Neall says: “ the term. lend, when used in a lequest, is generally equivalent to give. In some special cases, it has its appropriate meaning: as in Baker vs. Baker Red, decided by this Court in December, 1831.. But in such cases, there is something which shows that the testator did not intend the legal estate to pass to the legatee. In-the will under consideration, the testator has not ’manifested any such intention; he uses the word to pass from him the entire property in the chattel; and it is worthy of remark, that he uses the word, (lend) not in relation to the life-estate, which he had created, as he supposed, for his daughter, but also to the absolute estate in remainder, which he also supposed he had created in favor of her children.
The cause of the defendant cannot derive much aid from these precedents. First, this is not a will, but a gift, inter vivos; and secondly, so far from the lender’s manifesting any intention to part with the title to this property, it is stipulated, expressly, that it shall be returned to him or his heirs, at the death of Mrs. Terrell.
Chancellor Kent defines a loan to be a bailment of an article for a certain time, to be used by the borrower, without paying for the use. (2 Kent’s Com. Lecture 40, p. 578, 4th Edition.) And this language is copied, almost verbatim, from Sir William Jones. See Treatise on Bailments, pp. 118, 217. Ayliffe says, “it is a grant of something, made in a gratuitous manner, for some certain use and for a certain term of time, expressed or implied, to the end that the same species should be again returned or restored again to us ; and not another species of the same kind or nature, and this in as good plight as it was delivered”. (Pandects, B. 4, tit. 16, p. 516.)
The foregoing propositions, fully warranted as they are by adjudicated cases, demonstrate, so clearly, the nature of this transaction, to-wit: that it is neither a remainder nor a reversion, but a loan, for a definite period, with the express understanding, that at the death of Mrs. Terrell, the woman, and of course her offspring, born during the lifetime of Mrs. Terrell, should be returned to Richard Hodges, if living; or if dead, to his daughter Martha, or his heirs: I say, that this so unmistakably, is. the legal character of this contract, that we are unwilling to' olaborate it further.
I have said that these contracts of gratuitous loans, were subjects of daily occurrence, in the actual business of human life. This record shows that the very defence set up by Richmond Terrell, is founded upon the validity of such contracts. Whether the generous confidence bestowed by either or both of these parties, in the other, has been abused, remains to be seen.