Ivey's Adm'r v. Owens
28 Ala. 641
Ala.
1856
Check Treatment
WALKER, J.

Delivery is an indispensable ingredient of a parol gift. When the gift has been perfected, the»subject-matter of the gift passes immediately under the dominion of. the donee. Hence the inquiry, whether the thing given has passed under the dominion of the donee, is applied as a test of the completion of the gift. There is no delivery without a transfer of the property, from the dominion of the donor, to that of the donee. The subsequent possession of the property by the donor is not necessarily incompatible with the investiture of the donee with the dominion over it. One may have the actual possession, while another may have the* dominion which-appertains- to ownership. While, therefore, there must be an actual delivery to the donee, .in order to give dominion over the property, it is not necessary that the actual possession so acquired should afterwards be retained. If a gift has *647been consummated by delivery, the mere fact that the donor afterwards exercises actual control of the property will not divest the title transferred by the gift. Nor is the subsequent possession of the donor conclusive evidence that there has been-no delivery, or that the, dominion over the property has not passed to the donee. That circumstance is susceptible of explanation; and the facts, that the donee is the donor's daughter, lives with him, and composes a part of his family, and that the subject of the gift is a slave, too ^oung to be a source of profit or active service, or to be permanently separated from a family of slaves belonging to the donor, would j, be, prima facie, sufficient explanation of the subsequent control and possession of the donor, notwithstanding the donee might be over the age of twenty-one years. — Hannah v. Sparks, 4 H. & J. 310; Degraffenreid v. Thomas, 14 Ala. 681; Easley v. Dye, ib. 158; Young v. Young, 25 Miss. 38; Stallings v. Finch, 25 Ala. 518; Sewall v. Glidden, 1 Ala. 52; Sims v. Sims, 8 Porter, 449.

If a father place the hand of a slave in the hand of his daughter, and declare that he gives the slave to the daughter; and if the intention exist, by the declaration and accompanying-act, to make a gift, consummated in delivery, the dominion over the gjave passes to the donee, and the gift is complete. The mere placing of the slave's hand in tliat of the donee would not, of itself, amount to a delivery; but, if that act is done with the intention to perfect a gift by delivery, it would have sp^h effect. It is impossible to define in advance with particularity what will constitute a delivery. The question, in every case, must depend upon the nature of the property. “ It must be “secundum subjectam materiam,” and the true and effectual way of obtaining the dominion over the subject.— Smith v. Wiggins, 3 Stew. 221; Smith v. Smith, 2 Strange, 955; Davis and Wife v. Exr’s of Davis, 1 Nott & McCord, 955.

In this case, the subject-matter,of the gift was a slave, the actual dominion and control of which can be appropriately and effectually transferred by placing the hand of the slave in that of the donee, and accompanying that act with words of gift and conveyance, which not only tend to manifest the intention of the act, but inform the slave to whom his future obedience' would be due. There are many conceivable in*648stances in which such an act, with such an accompanying declaration, could not constitute a gift, or evidence a delivery. If a parent, in mere playfulness, or from any other than a motive to really transfer the property, were to go through the ceremonial of a gift to his child, no title would pass. An apprehension is expressed in the case of Reed v. Colcock, 1 Nott & McCord, that transactions in domestic life, never designed to have effect as transfers of property, may, under the law of parol gifts, be converted into conveyances of title. Such a result cannot ensue, if due weight is given to the requisition, that the intention by the act and accompanying declaration to make a gift must appear. It is the intention, characterizing the act and declaration, which must control their effect. — Sims v. Sims, 8 Porter, 449.

The decision in the case of Sims v. Sims, 2 Ala. 117, is not in conflict with the principle laid down in this opinion. In that case, there was no act of delivery whatever by the donor. The slave was not under the dominion of the donee for a single instant. There was not even an intermission in the donor’s possession. The locus penitentice remained to the donor. In the case presented in the charge of the court in this cause, there was what may amount to an actual placing of the property under the dominion of the donee. An act was ^one, and words were spoken, which, characterized by the appropriate intention, were sufficient to pass the title.

The precise language of one of the charges of the court is, “that the subsequent possession of the donor migh^ be explained, by the fact that the home of the donor was also the homo of the donee.” We are not willing to decide that the subsequent possession of the donor would necessarily be explained by the mere/aci that the donor and donee had the same home, where the donee is over the age of twenty-one years. We do not understand the charge to assert such a proposition. The language of the charge is, that the possession of the donor u might be,” not that it would be, explained by that fact. The effect of the charge is, that the particular circumstance may, or may not, have been explained by that fact, according ,tp the other circumstances in the case. This charge was permissible, when construed in reference to the testimony,- that the donee was an unmarried daughter, had *649long been engaged in rendering services for tbe donor and his family, and lived in his family, and that the negro was too young for active or profitable service, or to be separated from th# family to which she belonged. The charge asserts a correct proposition of law; and if'the defendant desired any explanation of it, he should have asked it. — Dave v. The State, 22 Ala. 35.

It is settled by the decisions of this court, that if one sell the personal property of another, and receive the purchase money, the lattei#nay waive the tort, and sue in assumpsit to recover the purchase money. — Firemen’s Insurance Company v. Cochran, 27 Ala. 228; Duncan & Hooper v. Stewart, 25 Ala. 408; Strother v. Butler, 17 Ala. 733; Crow v. Boyd’s Adm’r, 17 Ala. 51; Upchurch v. Nosworthy, 15 Ala. 705. The owner of the property may elect, in such a case, to bring trover, or assumpsit. {The statute of limitations to the action! which he imy elect to bring, will commence running from] the time wnen the cause of action 'accrues.# The action of assumpsit, in this case, was not barred because the plaintiffs’ other remedy in tort may have been. The authorities in support of that proposition are clear, and rest upon sound reason. See Angelí on Limitations, 75, § 5, and authorities cited; and Godsey v. Bason, 8 Iredell’s Rep. 264.

There was no error in the refusal of the court to exclude the testimony objected to.

The judgment of the court below is affirmed.