Thompson, Trustee, v. Bryan, Adm'r.

ACTION of Detinue for a slave, tried before his Honor Judge ELLIS, at the Spring Term, 1854, of Wayne Superior Court. The plaintiff claimed title under one Gard Thompson, who was called as a witness, and testified that, on

day of

A. D., one Tilghman Gardner and his wife joined in a conveyance to him of certain monies, then in the clerk's office, the proceeds of the wife's real estate: one of the stipulations of this conveyance was, that the witness, in consideration of $125 of the said monies, should convey the slave in question to the plaintiff, in trust, for the separate use of said Gardner's wife; that, soon after the execution of this deed, but before the actual receipt of the money from the clerk's office, he, the witness, who was the owner of the slave, placed it in the possession of the plaintiff, that it might be with its mother. Soon after this, he went to plaintiff's house, where the slave was, and told him to keep it for the use of the said Tilghman's wife, according to the terms of the said deed; that he told the plaintiff he then delivered to him the slave for this purpose; that the plaintiff agreed thus to receive and hold the slave; that it was his, (witness's,) intention thereby to convey the negro for the purpose above state 1, and thus to confer upon him the legal title, and that it was so understood by them both at the time; that the slave was not present at this time, but was on the plaintiff's plantation, subject to the control and direction of him, (the witness); that he never took back the said slave, but left him with the plaintiff.

Upon a cross-examination, the witness said, that after the occurrence above narrated, he had executed a bill of sale, in writing, to the plaintiff, declaring the trust theretofore stipulated, which bill of sale, he was advised, was void, for the want of a subscribing witness. This bill of sale was then offered in evidence. The same witness further stated, that, at a still later period, he had executed another bill of sale for the same slave, with the requisite legal formalities, which it was admitted conveyed nothing, as the slave had then been levied on, and was at

Thompson, Trustee, v. Bryan, Adm'r.

the time, in the adverse possession of a constable. This bill of sale was also read in evidence.

The defendant claimed as a purchaser, under an execution against Tilghman Gardner, and showed judgment, execution, a sale and purchase, in due form.

It was contended by the defendant, that the plaintiff could not recover, because there never had been any sale of the negro by Gard Thompson to the plaintiff; that there was no evidence of an actual delivery, as required by the statute, and that the subsequent attempt to convey by deed, was evidence that the parties never intended any other mode of con

veyance.

The Court left the evidence to the jury to determine, as a question of fact, whether there had been a sale and delivery of the slave by Gard Thompson to the plaintiff, with instructions, that there must have been a sale and an actual delivery, to pass the title; that a manual delivery was not essential, but that an actual delivery was; that if it was the intention of Thompson, at the time relied on, to sell and deliver the slave to the plaintiff, and then to invest him with the absolute title and possession, he having control of the slave at that time, and the plaintiff thus received him; that this understanding would be sufficient in law to pass the title, though the slave was not actually present at the time, but in possession of the plaintiff.

There was a verdict for the plaintiff. Rule for a new trial; rule discharged; judgment and appeal to the Supreme Court.

Dortch and Person for the plaintiff.

No counsel for the defendant.

BATTLE, J. There is no doubt of the plaintiff's right to retain his verdict and judgment. The only difficulty is, as to the true ground upon which that right should be placed. The case of EPPES V. MCELMORE, 3 Dev. Rep. 345 is a strong authority in favor of the Judge's charge as to the sale and delivery of the slave from Gard Thompson to the plaintiff, independently

Thompson, Trustee, v. Bryan, Adm'r.

of the bill of sale. But that case is supposed to be weakened by the decision of the Court on the subsequent one, of ADAMS v. HAYS, 2d Ired. Rep., 361, in which it was held, that to a parol gift of slaves, an actual delivery was necessary, and that the circumstance that the slaves were in the possession of the donee was not sufficient, if they were not present at the time of gift.

The unattested bill of sale would have been undoubtedly good between the parties prior to the revision of the statutes in 1836. CUTLER V. SPILLER, 2 Hay. Rep. 61. Whether that had not been altered by the ommission of the preamble in the Revised Statutes, (1 Rev. Stat. ch. 37, Sec. 19) has been made a question in STATE V. FULLER, 5 Ired. Rep. 26, and BENTON V. SAUNDERS, Bus. Rep. 360.

But however these questions may be settled, whenever it shall become necessary to decide them, it is clear that the plaintiff, as the bailee of Gard Thompson, had a right to recover in this action, his possession of the slave from the defendant. 1 Roll's Abr. Title Detinue C., page 636; 1 Chit. Plead. 139; 4 Bing. Rep. 111; 1 Saund., P. and E. 435. The defendant's intestate claimed as a purchaser under an execution against Tilghman Gardner, who, it is evident, never had any title to the slave in question, and the intestate who purchased his interest, and stands in his place, is therefore to be regarded as a mere wrongdoer. The only pretence of title which the debtor could set up was derived from the conveyance to his wife's trustee, and that the defendant contends, passed nothing. The plaintiff then, as bailee, has no obstacle in his way to prevent a recovery.

The judgment is affirmed.

Lawrencev. Pitt.

JAMES LAWRENCE v. FRANKLIN G, PITT.

Where, by the death of her grand-father, (the person last seized,) a child is entitled to a reversion in land, expectant on the termination of a life estate, and such child dies before the expiration of the life estate: HELD, that the inheri tance does not vest for life in the parent of the deceased child, under the 6th Canon of Descents, on the expiration of the life estate. The person entitled to take must make himself heir to the person last seized.

THIS was an action of Ejectment, tried before his Honor Judge CALDWELL, at the Spring Term 1854, of Edgecombe Superior Court.

The plaintiff claimed the right to enter upon an undivided fifth part of the tract of land set forth in the declaration, and the following facts are submitted as a case agreed:

"Noah Little died intestate, in the year 1824, seized of a tract of land, leaving Mary E. Little his widow, and the following children, who were his only heirs at law, to wit: Joseph J. Little, Cullen Little, Wm. G. Little, Elisha Little, Patsy Howard and Amariah Little. At the November Term, 1824, of Edgecombe County Court, the widow, Mary E. Little, filed her petition for dower, in the said land, which was assigned, and she took possessien thereof, and continued in possession until her death in 1852. At August Term, 1826, of said Court, a petition for partition of the land was filed by the heirs, and under it a partition was had, and the share assigned to Amariah Little was covered by the dower of the widow and is the tract of land described in the declaration. Amariah Little died in 1842, intestate, and without issue. Patsey Howard died intestate, before 1842, leaving a child her only heir, by the name of Martha, who intermarried with the lessor of the plaintiff. Martha, the wife of the lessor, died in 1844, leaving a child (Joseph) her only heirthe issue of the marriage between her and the lessor of the plaintiff. Joseph, the child, died intestate and without issue in 1850. The defendant was in adverse possession, at the time of the demise, in the declaration.

Lawrence v. Pitt.

If the Court should be of opinion that the plaintiff is entitled to recover, judgment is to be entered in his favor for six-pence and costs, with an order to issue a writ of possession. If the Court should be of opinion that the plaintiff is not entitled to recover, judgment of non-suit is to be entered."

His Honor being of opinion with the plaintiff, gave judgment accordingly, from which the defendant appealed.

Biggs, for plaintiff.

Howard, for defendant, argued as follows:

The plaintiff claims under the proviso to the 6th Rule, in chapter 38, on Descents, of the Revised Statutes. The wording of the Statute is, "that in all cases where the person last seized shall have left no issue, nor brother, nor sister, nor the issue of such, the inheritance shall vest for life only in the parents of the intestate, or in either of them," &c. It is admitted by the defendant, that the child of the plaintiff died, leaving no brothers, sisters or issue, and the only question is, whether reversions are within the purview of the statute, or whether the child had such seizin as will support the plaintiff's claim. The word "seized" is a "word which is well ascertained at common law," and it has been decided by this Court in KITCHEN V. TYSON, 3 Murphy, 314, that when such is the case, it must "be understood in the statute in the same sense in which it is understood at common law." The certainty and security attained by this mode of construction, was judicially considered and approved in ROBERTS V. CANNON, 4 Dev. and Bat. 256. And in 1 Jones 84, RIVES v. GUTHRIE, the Court say, that we are bound to give to words, when used in a statute, the meaning attached to them at common law." What, then, is the common law meaning of the word "seized."

Seizin was of two kinds, "actual and legal." Actual, when the possession was held either by the party himself or his tenant for years; and legal, when he had a present right of entry, either by deed or descent, without having taken possession.