30 Miss. 59 | Miss. | 1855
delivered the opinion of the court.
This was an action brought by the defendant in error, in the Circuit Court of Monroe county, to recover certain slaves in the possession of the plaintiff in error.
The main facts are as follows: Macon Murphy and wife, the defendant in error, executed a deed of trust on the 6th of May, 1854, to the plaintiff, on certain slaves belonging to the wife, and held by her under the provisions of the act of 1846. The deed was executed at Bladen Springs, in the state of Alabama, in the presence of two witnesses, according to the laws of that state, but the slaves were at the time at the town of Aberdeen, county of Monroe, in which, according to the recital or statement of the deed, all the parties at the time resided. ■ It also appears by the deed, that if default should be made in the payment of the debt therein secured, the trustee was authorized, upon giving certain notice, to sell the property at the town of Aberdeen. Murphy, the husband, a short time after the execution of the deed, died, and this action was brought by his widow, insisting that the deed, not having been executed according to the forms of the laws of this state, it is, as to her, void.
The single question presented by this statement of the case, is whether, admitting the deed to have been executed, so far as its
As a general rule, when a contract is to be performed at a particular place, it must be made according to the laws of that place, otherwise it will be inoperative, as the parties are presumed to contract with reference to such laws. The contract, as evidenced by this deed, was to be performed at the town of Aberdeen, in this state; and the question therefore is, when tested by our laws, was the deed binding upon the wife ? The law is so well understood by the profession, as applicable to this class of cases, that it is unnecessary to state its requirements. The deed, when tested by the laws of this state, is absolutely void. But it is said, that it was made according to the requirements of the Alabama law, and if valid according to that law, it is equally so everywhere. If the subject-matter of the contract were there, and the place of performance in that state, there might be force in the position assumed by counsel. But it is manifest that the deed can have no other operation, that such as is given to it by our laws. A feme covert, can only contract with reference to her slaves held under the statute, in the mode which the statute itself has prescribed. It is not like a restraining statute, which takes away previous rights, but it is an enabling statute, removing certain disabilities, and giving the feme covert power to contract, by observing certain forms and ceremonies, without the observance of which the power does not exist. A particular mode having been prescribed by the statute, by which the contract is to be concluded, must be regarded as a negative upon all other modes for doing the same thing. The contract, to be binding upon the wife, must bear upon its face the evidence of her free and voluntary consent thereto. The law has prescribed the mode in which this consent * shall be manifested. She must declare before the proper officer, that the deed is her free and voluntary act; and he must make his certificate of the fact before the deed, as to her, can be said to be complete. This is the mode in which the statute declares the contract shall be concluded; and to say that the statute should not
We are therefore of opinion, that the court below committed no error, in refusing the instructions asked by the defendant below, as his evidence did not even create a presumption of title in him.
Judgment affirmed.