Gordon v. Wilson.

GEORGE W. GORDON vs. WILLIAM G. WILSON.

A deed conveying slaves as a gift, but reserving "enough of the hire of the said slaves comfortably to support" the donor, is not a deed in trust, but a deed of gift, and is not required to be registered within six months. The Act of 1854, ch, 19, extending the time for registering deeds of gift to two years, applies to one executed April 8th, 1853, a year not having expired from its date to the time of that act's going into operation.

A deed of gift, expressed to be for natural love and affection towards a bastard child, is good at common law, though there is no delivery of the thing given at the time of its execution.

ACTION OF DETINUE, tried before BAILEY, J., at the last Fall Term of Currituck Superior Court.

Upon the trial below, it was admitted that the slaves in question belonged to one Mary Wilson, who, in July, 1855, intermarried with the plaintiff, and that he was entitled to them, unless the title had been divested by a deed of gift to Willis C. Wilson, who was an illegitimate son of the said Mary Wilson, and for whom the defendant held the slaves as guardian. The following is a copy of this deed of gift:

"To all people to whom these presents shall come, I, Mary Wilson, of the County aforesaid, send greeting: Know ye that I, the said Mary Wilson, for and in consideration of the natural love and affection which I have and bear unto my beloved son, Willis C. Wilson, of the County of Camden, and State of North Carolina, and for divers other causes and considerations me hereunto moving, have given and granted, and by these presents do give and grant, unto the said Willis C. Wilson, all and singular, the following negroes, (naming them) to have and to hold, with their increase, with a reserve of enough of the hire of the said negroes to comfortably support me while I live. **To have and to hold, all and singular, the aforesaid negroes to the said Willis C. Wilson, his adm'r. and ex'r. and assigns forever." (With a clause of general warranty.) Dated April 8th, 1853. Proven before Camden

Gordon v. Wilson.

County Court, at Oct. Term, 1855, and registered on the 31st of the same month.

It was objected,

1. That the said writing not having been proved within twelve months was void.

2. That being a conveyance in trust, it was void for not having been registered within six months.

3. That the said writing was not within the act of 1854, giving further time for registration.

4. That the consideration expressed in the deed, being love and affection for an illegitimate child, was insufficient to raise a use and transfer the slaves without actual delivery.

His Honor, being of opinion against the plaintiff on these several points, admitted the deed to be read; for which plaintiff's counsel excepted.

Verdict and judgment for defendant, and appeal.

Smith, for plaintiff.

Heath and Pool, for defendant.

BATTLE, J. The instrument of writing under which the defendant held the slaves in controversy, is neither a mortgage nor a deed in trust, but simply a deed of gift, with a reservation to the donor of a support for life out of the hires of the slaves.

Whatever effect this reservation may have in fixing a charge upon the slaves in the hands of the donee, it cannot alter the nature of the instrument with respect to the operation upon it of the registry law. As a deed of gift of slaves, the 17th section of 37th chapter of the Revised Statutes, (which was the law in force when it was executed) required it to be registered within one year after its execution; but before the year had expired, the act of 1854, ch. 19, extended the time two years longer, within which period it was, in fact, regularly proved and registered. This is a full and complete answer to all the objections founded upon a want of a proper registration.

Green v. Kornegay.

The only remaining objection is equally untenable. Being a deed of gift of personalty, it operates proprio vigore at common law by its delivery, to convey the title, and does not depend upon the effect of the statute of uses, as in the case of lands, to transfer the seisin to a use raised upon a sufficient consideration. If an authority were necessary for this proposition, the case of Irons v. Smallpiece, 2 Barn. and Ald. 551 (4 Eng. Com. Law Rep. 635,) is directly in point. There, ABBOT, C. J., says, that "by the law of England, in order to transfer property by gift, there must be either a deed or other instrument of writing, or there must be an actual delivery of the thing to the donee." This clearly implies that a deed of gift is equivalent to an actual delivery of the thing, and such, we believe, has always been understood to be the law of this State.

PER CURIAM.

Judgment affirmed.

J, K. GREEN AND WM. K. LANE, ADMR'S., vs. JOHN A. KORNEGAY.

A deed in trust was made to one who had no knowledge of its execution at the time, but shortly afterwards, on being informed of the fact by the draftsman of the deed, he assented to it, agreed to act as trustee, and appointed an agent to get possession of the property, who had the deed registered, and proceeded, as agent, to demand and sue for the property; Held, that this was a sufficient delivery of the deed, though it had never actually been in the hands of the bargainee.

A deed in trust to secure a separate use in property to a wife, is not required to be proved and registered within six months, or be void as to creditors

and purchasers.

A voluntary conveyance of personal property passes the legal title as to subsequent purchasers, though void as to creditors.

A creditor can only take advantage of a voluntary and fraudulent conveyance by reducing his claim to a judgment, and seizing the property under an execution.

An action accruing to a lunatic can only be brought in his name.

Green v. Kornegay.

THIS was an ACTION of DETINUE, tried before SAUNDERS, J., at a Special Term, December, 1856, of Wayne Superior Court. The plaintiffs claimed title to a negro slave named Martin, by virtue of a deed in trust, executed in September, 1852, by one Henry Roberts to John A. Green, the plaintiffs' intestate. The consideration expressed in this deed was one dollar, and the trust was for the sole and separate use of Nancy P. Roberts, the wife of the said Henry, during her life, and after her death to be reconveyed to the said Henry. The subscribing witness, who was a member of the bar, proved that Roberts came to his office on the day of the date of the deed, which was the 11th of September, 1852, and requested him to draw this deed and another, by which he, said Roberts, conveyed to a trustee, for the benefit of his wife, a house and lot near Goldsboro'. He drew the deeds as requested, and that for the slave had been in his possession ever since its execution up to the trial of this suit, except when it was in the hands of the public register for registration. He stated that it never had been in the hands of John A. Green, but that some days after its execution he made the transaction known to him, when he agreed to act as trustee and gave witness authority to act as his attorney in any matter necessary to secure the possession of the slave Martin. Witness, by virtue of this authority, demanded the slave from the defendant, which he refused to deliver, and a few days thereafter brought this suit. This witness also proved that the bargainee, John A. Green, after the execution of the deed, to wit, in the winter of 1853 and 1854, was insane, and that, in March following, he died in a lunatic asylum, and that, some year or two before the bringing of this suit, Green had had occasional attacks of insanity. The writ in this suit was issued 21st of Feb., 1854. The deed was registered April 8th, 1853.

The defendant then offered in evidence a deed from Roberts to him for the slave, Martin, bearing date 11th October, 1852, and registered within the next month, and proved a full price and the bona fide payment of the consideration, in money, and in money's worth. He also proved, that after

Green v. Kornegay.

Roberts had made this conveyance to the defendant, he said that he had made a deed for Martin, and for the house and lot near Goldsboro', but that the deed was good for nothing.

There was evidence introduced in behalf of the defendant, tending to show that, at the time of the deed from Roberts to Green, the bargainor was largely indebted, and nearly, if not quite, insolvent; and that he was, at that time, indebted to the defendant in the sum of $360; and there were, also, other circumstances tending to show that the deed 'to Green was voluntary aud fraudulent.

It was also proved that, in Nov., 1852, Green told witness that he never had seen the deed which Roberts had made to him; that he should not act as trustee, and should bring no suit for the recovery of the slave Martin.

The defendant contended,

1. That the deed under which the plaintiffs claimed was never delivered, and the said John A. Green had never accepted the trust.

2. That the deed in trust had not been registered according

to law.

3. That the deed, being voluntary, was fraudulent, and void as to the defendant; first, because he was a purchaser for a full and fair consideration without notice, and secondly, because he was a creditor.

4. That the insanity of Green, after appointing his agent, was a revocation of the authority to demand the slave and bring this suit.

His Honor decided these several points against the defendant, and instructed the jury accordingly; upon each of which defendant excepted.

Verdict and judgment for plaintiffs. Appeal by defendant.

Bryan, for plaintiffs.

W. A. Wright, for defendant.

BATTLE, J. Neither of the objections urged against the