Burt v. Kimbell

5 Port. 137 | Ala. | 1837

HOPKINS J. C.

This was an action of deti-nue for a slave. It was brought by the defendant in error, against the plaintiff. Upon the trial in the Circuit Court of Morgan, it was proved that one Thomas Peyton, deceased, the father of the wife of Kimbell, in eighteen hundred and ten, and in the State of North Carolina, where he then resided, made a deed of gift of the slave in controversy, to KimbelFs wife, then of the age of seventeen, unmarried and a member of the family of her father. The actual possession of the slave was retained by Thomas Peyton, till his death, in this State, in the year eighteen hundred and thirty-three; and Burt is the administrator of the goods and chattels of the donor, with his will annexed. There was no other proof of the delivery of the slave to the donee, than that her father took the hand of the slave and delivered him into the hand of his daughter.

It does not appear that the deed was delivered or attested by a subscribing witness, or that it was ever registered in North Carolina, and it was proved by a witness for Kimbell, that the donor said afterward, he had burned it.

The defendant in the Circuit Court, gave in evidence; a transcript, properly authenticated, of a statute of North Carolina, enacted in December, eighteen hundred and six, and entitled, “an act, declaring what gifts of slaves shall be valid, — for the prevention of frauds.”

Among other instructions given and refused by the Circuit Court, and to which the plaintiff in error excepted, are the following: His counsel moved the Court to instruct the jury, that no title, according to the laws of North Carolina, passed by the alleged gift, unless a deed of gift were executed, attested by a subscribing witness and recorded; the Court refused the instruction, and instructed the jury, that the gift, if proved, though a parol one, was valid.

The assignments of error in this Court, present the question, whether the Circuit Court, erred in refusing or giving the instructions, -which have been mentioned.

The alleged gift was made after the passage of the act of eighteen hundred and six, and if it were intended by that act, that no gift made after its enactment, should be valid, except such as might be made in the mode, and with all the formalities prescribed by the statute, the gift in this case was void. That the validity or invalidity of the gift, depends upon the law of the State, where it was made, no one doubts. The object of every statute > of frauds and perjuries, is to protect third persons against conveyances or contracts, made fraudulently by the parties to them. Such conveyances and' contracts are held to be valid between the parties, whether the statute of frauds of the country, in which they are made, contain or omit an enactment, that they .shall be binding between the parties and their representatives. The legislative power of a country is competent to prescribe that all such contracts, in future, shall be void, as well between the parties as between them and the creditors or subsequent purchasers of the grantor or donor. Without any words for the purpose, the effect of such an act, would be extended to the parties to the contracts, if the intention of the act required it.

The title of the act of eighteen hundred and six, shows clearly, that the legislature which passed it, intended to prescribe the only mode in which a valid gift could be afterward made. Whatever the lex loci requires to make a valid gift, must be done, or the property will not be transfered from one party to the other. By the statute of eighteen hundred and six, it was enacted that no gift of a slave, made after its passage, should be good, either in law or equity, unless the same should be made in writing, signed by the donor, attested by at lest one credible witness, and proved or acknowledged and recorded as the act directs. Another enactment of the same statute, required every person who had a claim to any slave in virtue of any parol gift, made before the passage of the act, to commence his suit for the same, within three years from the passage of the act; or if. such person was then under any of the disabilities mentioned in the act, within three years next after any such disability might cease. The effect of a failure to bring a suit upon such a gift, within the time limited,, was by the terms of the act, to be a bar to the action. It was also provided by the act, lhat where any person shall have put into the actual possession of his child, a slave or slaves, and the said slave or slaves, shall remain in the possession of such child at the time of the death of such person, he dying intestate, such slave or slaves, shall be considered an advancement to such child, and be regulated by the law relating to advancements.

From the act, we think it is obvious, that when the gift in this case is alleged to have been made, no valid gift of a slave could be made by parol, or in any other mode than in writing, signed- by the donor, attested, and proved or acknowledged and recorded, as the statute prescribed. The wife of Kimbell, had not such a possession of the slave in her father’s life time, nor at his death, as to entitle her to the property' as an advancement. Our construction of the act agrees with that which the statute has received from the Supreme Court of North Carolina.^*—Smith et ux vs Tates.^†

We are of opinion the Court below erred in giving and refusing the instructions, which we have noticed.

The judgment is reversed, and the cause remanded.

* 3 Mur. Rep. 135.

† B. & Dev. Rep. 302.