52 N.C. 424 | N.C. | 1860
The plaintiff offered in evidence, as part of his title, a deed of trust made to John W. Hinton by one Gilbert Harrell. The deed is in the common form, conveying lands and slaves, including the one in question, and other property, to secure certain debts therein enumerated, with power to sell the same on certain specified terms. The deed has no subscribing witness, and it was contended that as to the slaves it was inoperative on that account. His Honor was of that opinion, and in deference thereto plaintiff submitted to a nonsuit and appealed. The case comes up to us upon a single question, the (425) admissibility of a deed dated 17 June, 1856. It is without a *328 subscribing witness. Rev. Code, ch. 50, sec. 13, declares that "All sales and conveyances of slaves shall be in writing, attested by a crediblewitness subscribing thereto, or otherwise shall be void." The point made is whether the deed in question is embraced in the class of instruments designated in The Code; for, I suppose, it is not at all questionable that if the instrument be void, it has no legal entity or validity per se, for any purpose. Is it, then, a conveyance of slaves within the purview of The Code? It is, we think, clearly so. The suggestion that it may be upheld as a power of attorney, and admissible as such, is not sound. The class of instruments called powers of attorney convey no legal estate, but is mere authority to the attorney to sell for and in the name of his principal; and when the executes the power, he does it by making conveyances and acquittances in the name of the principal, and until such execution of the power the estate continues in the principal. That is not the character of the instrument before us. It purports to be a conveyance of the legal estate in the property (land, slaves, and other personalty), with a power to sell at private or public sale and apply to certain objects. It would be, if effectual for any purpose, a transfer of the legal estate, and it is in its tenor and significance not the less a conveyance because it annexes to the estate certain trusts.
This is an attempted conveyance of slaves; a power of attorney to convey is a very different thing. The former is void if without a subscribing witness; the latter would not be. A conveyance of land would not be. Writings to convey slaves are distinguished in the law from other conveyances, and the safeguard of subscribing witnesses made necessary to the former. Why this is so we are uninformed, but thus the law is written.
There is no error in the judgment of the Superior Court excluding the deed.
PER CURIAM. Affirmed.
(426)