Tucker v. Magee, 18 Ala. 99

Tucker v. Magee

18 Ala. 99

| Ala. | 1850

PARSONS, J.

The defendant’s counsel does not contend that the writing, which in the bill of exceptions is called a deed of gift, was an escrow, and we are entirely satisfied it was not. Hence, in this opinion, we will treat it, not as a writing delivered to a third person as an escrow, but as a deed. But the counsel contends, nevertheless, that Elizabeth C. Acre, now Mrs. Tucker, had not a present right of possession of the slave, and consequently could not maintain an action of trover. The question therefore, is, whether or not she had a present right,. *103and this leads us into the circumstances of the case. And it is to be observed in the first place, that Samuel Acre reserved nothing whatsoever to himself. The entire title and property passed from him by the indenture and deed of gift, both of which were executed at one and the same time. We will consider the deed of gift first, for the present leaving the indenture out of view. The deed was delivered by the donor to Mr. James, to be by him delivered to Elizabeth C. Acre, the donor’s niece, (who was then and at the time of the trial below a minor,) at the expiration of the term of five years specified in the indenture. This deed, we think, took effect from the delivery to James, and that a further delivery by James to Elizabeth was not necessary for the purpose of vesting the property in her. There is a very well considered case, in which the court in speaking of a deed, and not of an escrow, observed, “if a grantor deliver any writing as his iced to a third person, to be delivered over by him to the grantee, on some future event, it is the grantor’s deed presently, and the third person is trustee of it for the grantee. And if the grantee obtain'the writing from the trustee before the event happen, it is the deed of the grantor, and he cannot avoid it by the plea of non est factum, either generally or specially pleaded.” — Wheelwright et al. v. Wheelwright, 2 Mass. R. 452. —see also, McCutchen v. McCutchen, 9 Port. 650; 4 Kent’s Com. 454. Then it is clear that the deed, considered by itself, took effect and vested the property and right of possession in Elizabeth from the time of the delivery of the deed to James. The donor thereby conveyed the title and property to Elizabeth, presently and absolutely, without any condition or reservation. But at the same time he bound the slave, by the indenture, to James for the term of five years, to be by the latter fed and clothed and taught, a trade, and then delivered to Elizabeth. Thus James had, for these purposes, a right of possession of the slave for the term of five years. The special property was in him for this term and for these purposes. To every other intent and purpose, and against every other person, the title and property were in Elizabeth. In this state of things, James, during the term and for a consideration to himself, surrendered his claim to the slave, together with the deed of gift and the indenture, to the defendant, to be sold as part of the estate of the donor, and the defendant sold him accordingly, well knowing all the facts. It. *104•was after this that the present suit was brought. The contract of apprenticeship is one of personal trust, as well where a slave is bound as a white person. The skill, habits, character and place of business of the person, to whom a child, or even a slave, is bound, to be instructed in a mechanic art, are, or ought to be first carefully considered by a parent or master wishing to bind his child or his slave. “■ A personal trust which one man reposes in another cannot be assigned over, however able such assignee may be to execute it.” — Bacon's Ab. Tit. Grants. An apprentice is not assignable.-v-8 Mass. R. 299; 19 Pick. 556. Every indenture of this kind is, we think, on the implied condition that the slave or child, as the case may be, is to be employed according to the nature and objects of the contract. This •principle may, indeed, extend to bailments of a different and less delicate character. — In Whitlock v. Heard, 13 Ala. 176, •the language of the Chief Justice was : “ It is very clear that if a factor, or other bailee, having a lien on goods, sell them or convert them to his own use, &c., the owner may bring trover for them immediately, without regard to the lien.” And this court held, in Rasco & Brently v. Willis, 5 Ala. 38, that in the hiring of slaves, there is an implied stipulation that the slave :is to be employed in some honest pursuit; and if the hirer should incite or compel the slave to steal, or become the receiver of stolen goods, the owner-would have the right to rescind the contract .and resume the possession of the slave. In every apprenticeship or hiring of slaves, when the spirit of the contract is grossly violated, in respect of the use or disposition that is made of the slave, this principle must apply with peculiar force. And if it could not be supported upon the principles of-the common law, with regard to bailments of ordinary property, we should be disposed to maintain it, as necessarily resulting from the peculiar nature of slave property ; for there must be some distinctions between slaves and other property. However, it is, perhaps, unnecessary now to allude to such distinctions. It was held in Vermont that, -where the owner of cattle leased them for a term of years, under an agreement that, at the expiration of the term, the lessee might either return the cattle or pay a stipulated price for them, and the lessee sold the cattle before the term had expired, such sale determined the lessee’s right of possession, and that -the owner might maintain trover for th§ *105cattle against both seller and purchaser.-^-Grant v. King et al. 14 Vt. R. 367. In the present case, James renounced and abandoned his trust and with it his special property in the slave, and consequently we think, Elizabeth became entitled to the ^immediate possession and might bring trover for the conversion. The opinion of the court below was contrary to the principles pf this opinion. Wherefore the judgment is reversed and the pause remanded.