25 Tenn. 75 | Tenn. | 1845
delivered the opinion of the court.
This is a bill to recover a number of negro slaves. The complainants claim by virtue of a deed of gift from Charles Sallard, dated in 1841. The complainants have prosecuted
Although the former suit was between the same parties, and for the same property, yet the title which is set up in the present suit did not then exist and was not adjudicated. The question is therefore open to the investigation of Charles Sal-lard’s title to those slaves. For the complainants can now only claim such title as Charles Sallard had in 1841, and which he conveyed to them.
2. It appears from this record that in 1814, the defendant, Wm. McKissick, married the daughter of Gharles Sallard of Person county, North Carolina. Soon after this marriage, Sallard put three negro slaves (from whom all the others for which this suit is brought descended) into the possession of his son-in-law, McKissick, without any express contract as to the character in which they were to be holden, and without any writing. Mrs. McKissick died in a year or two, leaving the complainant Eleanor an infant, her only child. Shortly after the death of Mrs. McKissick, Mr. Sallard and Wm. McKissick, the defendant, had a conversation about the negroes, in which Sallard said, he wished his grand-daughter, Eleanor, the daughter of defendant, to have the negroes, and if she died without heirs, McKissick should have them. Mc-Kissick said he was willing it should be so. After this conversation, Sallard says he has set up no claim to these ne-groes. In 1832, McKissick moved from North Carolina to Tennessee, where he has held and possessed these slaves until this time. There are many depositions as to the character of the defendant’s possession, and the knowledge of Sal
This bill was filed in 1832. Upon these facts the question is, whether after a possession, which had continued, twenty-eight years, under these circumstances, Charles Sallard, the original owner of these negroes, would be entitled to assert his right and recover them from McKissick. For the complainants have no other ground of recovery than that derivable from-Sallard’s deed of 1841.
1. It is assumed in the first place that as the transactions in relation to these slaves occurred in North .Carolina, the rights of the parties, when McKissick brought the negroes to Tennessee, were such as by the statutes and adjudications of North Carolina they would have been regarded. The correctness of this principle is not controverted. A right is to be determined according to the law of the country where the contract was made; but the remedies for its enforcement are to be applied according to the law of the forum.
2. It is next assumed that by the statute of North Carolina of 1806, a gift of slaves is void, unless it be made in wri-ing, and that by the judicial determinations in that State the donee of a slave by a verbal gift is only a bailee for the donor and does not hold the slave adversely to the title of the donor, and that when McKissick brought the slaves to Tennessee they were in his possession as Sallard’s bailee. That a verbal gift of a slave is void by the North Carolina act of 1806, is true, and it is also true that the courts of that State have held that the donee does not hold possession adversely to the title of the donor. Such gift becomes by operation of law a bailment and can be determined only as bailments by contract are determinable. As the result of these decisions the
The decree must be reversed, and the bill dismissed with costs.