2 Ala. 648 | Ala. | 1841
— Although the paper by which James Peek proposed to transfer the slave Lucy to the intestate, recites a valuable consideration, yet it is competent for a creditor or purchaser to show, that the transfer was not induced by money, or any thing of value ; but that the true consideration was, the natural love and affection which the father cherished for his son; and as the proof shows such to have been the character of the transaction, we will consider it upon the hypothesis, that it was intended as a gift.
By the second section of the statute of frauds, it is enacted,, that if “ any conveyance of goods or chattels, and be not on consideration, deemed valuable in law, it shall be taken to be fraudulent within this act; unless the same be by will, duly proved and recorded, or by deed in writing, acknowledged and proved,” &c., “ within twelve months after the execution thereof; or unless possession shall really and bona fide remain with the donee.” ' It is not pretended, that the deed of gift in question, Avas acknowledged or proved and recorded ,* for the bill of exceptions explicitly informs us, that no such proof was adduced. It does not appear, that the slave was ever delivered to the donee, or that the donor, for a single moment, relinquished the possession — the bill of exceptions merely reciting, that it was proved she was left with the donor, on account of her tender years, &c. The deed not being recorded as required by the act. it was insufficient in itself to pass the title; but could only “ be regarded as equivalent to a par-ol declaration of the donor’s wishes;” and in order to effectuate the object proposed, it is necessary to show, that the subject of the gift was actually delivered. [Seawell v. Glidden, 1 Ala. Rep. N. S. 52. is an authority very full to this point.]
Assuming the transaction between James Peek and the intestate, to have been intended as a gift, if the intention was. never consummated the right of property remained unchang-' ed, and the contract by which the father agreed to carry the slave to Missouri, was a mere gratuitous undertaking, imposing no legal obligation and conferring no legal right.
Let it however, be supposed, that the intestate acquired the slave by a purchase for a valuable consideration, or that all the constituents of a gift inter vivos were shown, and we will con
But although, such was the character of the bailment at the time it was made, yet the bailee cannot be considered a man-' (datory, as against his creditors and purchasers after the expiration of such a length of time as would warrant the inference, that James R. Peek, was advised of the abandonment of his intention to remove to Missouri. After that time, if no demand was made, or effort to recover the slave, the possession of the father would be regarded as permissive, and though, there was no contract for a loan, yet the law would consider him as a depository, holding for the benefit of the son, authorized to employ the slave in ordinary service, and bound to deliver her up when required. It may be well questioned whether James Peek incurred a legal obligation, to perform his engagement ; for it lias been repeatedly held, that where one party entrusts the performance of ,a business to another, who undertakes to do it gratuitously, but wholly omits it, no action will lie for the nonfeasance ; but if he enters upon its execution, and does it amiss, through the want of due care, by which damages ensue to the other, an action lies for the misfeasance. [Thorne et al., v. Deas, 4 Johns. Rep. 44; Rutgers v. Lucet, 2 Johns, cases, 92; Else v. Gatward, 5 T. Rep. 143.]
Taking it then, that the possession of Janies Peek, in a reasonable time after he declined removing, ivas tacitly, if not expressly permitted, especially in the absence of proof showing it to have been tortious, or in any manner objected to, we think the law will regard it as a loan, within .the last member of the
The provision which we have cited, does not form a part of the 29 Chas. 2, but is to be found in the statute of frauds, as enacted in Virginia, Kentucky and Tennessee; the only material difference being a limitation of five, instead of three years, as in this State. Several decisions have been made in the two former States, touching this part of the statute, which as they .may serve to aid us in its construction, we will briefly notice.
In Beasly v. Owen, 3 H. & M. Rep. 456, Judge Tucker thought, that the object of the statute of frauds and perjuries was to shut out all questions respecting property held in possession by a debtor or vendor, for the space of five years, as between a creditor of, or apurchaser from the person in whom suchyjossmiore had remained without demand for that length of time, and the person claiming such property as his own, by virtue of any loan, reservation, or limitation of a use thereof, or property therein, unless such loan, &e., were declared by will or deed in writing, proved and recorded, as by that act is required. The learned Judge was consequently, much inclined to doubt, whether parol evidence of the loan of a slave, or
In Baylor v. Smither’s heirs, 1 Litt. Rep. 112, it appears, that an agreement was made between Shirley and the ancestor of the defendants, for the purchase and sale of a negro girl. By the agreement. Shirley was to pay four hundred dollars for the girl, part of which, was to be paid down, and the residue to be paid at some future period; but it was agreed, that if the residue, so thereafter to be paid, should, in fact, not be paid, the girl was to be returned to the ancestor, and the amount received by him refunded to Shirley. The Court said, “ if Shirley had remained in possession of the girl for five years, before the commencement of this suit, it is conceded, that as to his creditors and purchasers, the condition would have been void and inoperative; for, after the conditional sale to him, the right of Smithers was in the nature of a reservation, dependent on the performance of the condition by Shirley; and there is a provision in the statute of frauds, in this country, expressly declaring fraudulent, all such reservations, where the possession remains with another for the space of five years, without demand made and pursued by due process of law, unless the reservation, &c., be declared by will or deed in writing, regularly proved and recorded.”
The Court of appeals of Virginia, have decided, that five years uninterrupted possession of slaves, under a loan not evidenced by such a written declaration as the statute requires, vests a title in the loanee, which inures in favor of his creditors, and cannot be divested by his returning the same to the lender, after the expiration of that period. (Garth’s Ex’r. v.
And in Kentucky it has been determined, that where a slave remains in the possession of a person for more than five years, without any evidence in writing, of a reservation, &c., he becomes liable for the debts of such person; and such a consequence will not be avoided, by showing that the possessor acquired the property in trust for another. (Craig v. Payne, 4 Bibb’s Rep. 337.)
In Gay v. Moseley, 2 Munf. Rep. 443, it was decided, that where the loanee of a slave retained possession of her for more than five years, without any written declaration thereof, being made and recorded, as required by the statute of frauds and perjuries, the creditors of, or a purchaser from such loanee, would have a better claim to the slave, than the lender ; although they had notice of the circumstances under which their debtor or vendor held the possession.
The cases cited, serve to show, that in order to bring, a case within the provision of the statute of frauds we are considering, it is not necessary to prove, that the possession of the debtor or seller should be under a contract of bailment, technically called commodatum, or a loan for use. They maintain, that where the owner of persona] property voluntarily parts with the possession to another person, either with or without an express contract, that there must be a “ will or deed,” declaring the “loan, reservation, or limitation of use, or property” proved and recorded as required by the statute ; or else the absolute property shall be taken to be with the possession in favor
The last member of the second section is not restricted to a “ loan” but extends to a case, “ where any reservation or limitation shall be pretended to Have been made, of a use of property, by way of condition, reservation, remainder, or otherwise, in goods and chattels, the possession whereof, shall have remained in another.” These words are of exceedingly extensive meaning, and in order to promote the intention of the legislature, may, with perfect propriety, embrace a “reservation or limitation,” not only expressed and stipulated by the parties, but one which the law implies from a given state of facts. The terms, “ or otherwise,” apply to every conceivable “reservation or limitation,” whether they are to' operate by way of “ condition, reservation, remainder,” or in any other manner known to the law.
The case of Gay v. Mosely, is a direct authority to show, that the limitation prescribed by the statute, vests a complete title in the posssessor, in favor of creditors and purchasers, and that the title of a purchaser from him, cannot be defeated by proof that such purchaser had notice that his possession was merely permitted by another, to whom the absolute property belonged; unless there was a “reservation or limitation,” declared, proved and recorded as the act directs. This decision, we think, is defensible not only upon a just construction of the act, but upon authority also. The. statute, in the particular in which we are ex'aming it, cannot be regarded as an ordinary registry act, intended to give notice of a writing, by authorizing its registration in an office designated for that purpose. It proposes to effect some thing more — it provides the manner in which one person shall retain his right to personal property, which he permits to go into the possession of another, and declares that if the directions of the act are not observed, the claims of creditors of, and purchasers from the possessor,
But we are not unaided in the construction of our statute; many decisions have been made upon a similar enactment, so far as the point before us is concerned, in accordance with the view we have taken. By the statute of the 27 Eliz. Ch. 4, all conveyances of land, &c. made with intent to defraud, &c. are declared tobe void against subsequent purchasers “for money or other good consideration.-” [Dane’s Ab. Ch. 109. Art. 9, Sec. 8; Roberts on Fraud. Con. 5, in note.] Under this statute it has been decided, that it is not material whether a subsequent purchaser has notice or not of a former fraudulent settlement ; for it has been determined at law, and therefore must stand, that a man’s having notice of a former settlement, which was fraudulent, shall not prevent his avoiding the same, as if he had been ignorant of it; because if he knew of the transaction, he knew it was void by law. (Dane’s Ab. Ch. 109, Art. 9, See. 6. and cases there cited; Roberts on Fraud. Con. 16—39—44. 233, and cases there cited; 1 Story’s Eq. 343, et post
But admitting that the defendant had no title to the slave, because he received the mortgage with a knowledge of the intestate’s claim; yet if Abel at the time of his purchase had no notice of it, and practised no fraud on his vendor, his title was good, and the defendant having acquired all Abel’s right, may invoke it in- his defence.
The conclusions we have expressed upon the points considered, are opposed to several of the instructions given by the Circuit Judge to the jury, as will be readily seen by a reference to the statement of the case. Even supposing that the gift from James Peek to his son was complete, so as to vest a title in the latter, the possession of the father for more than three years without a reservation or limitation of use or projierty made, proved, and recorded as the statute prescribes, divests that title in favor of creditors and purchasers. Other questions are' raised upon the record, but those examined, it is supposed, will lead to a decision of the cause upon its merits. Under this impression we have only to say, that the judgment is reversed and the cause remanded.