Durett v. Sewall , 2 Ala. 669 ( 1841 )

COLLIER, C. J.

— It has been often said, that a gift is not good, unless it be by deed, or unless the subject of the gift be actually delivered to the donee. [Sewall v. Glidden, 1 Ala. Rep. N. S. 52 ; Sims by guardian v. Sims, adm’r. at last term; Chitty on Con. 4 Am. Ed. 44, and cases cited.] Although a deed was executed by the father, professing to give the slave in question to the plaintiff, yet that deed cannot so operate as to convey the title; because it was not registered as required by the second section of the statute of frauds. [Sewall v. Glidden.] The question then is, was the gift ever consummated by a delivery of the subject? It is not pretended, that Lewis Sewall, the father ever delivered the slave to his son, but that the delivery was made to Dr. Stewart for him. That the subject of a gift may be delivered to the agent of the intended donee, would seem unquestionable; but the defendant in error was an infant at the time the gift was attempted to be made, and could not depute an agent to act for him; nor does the proof show, that anything of the kind was in fact done. (Story on Agency, 3.)

The relation of principal and agent takes place wherever one person authorizes another to do acts, or make engagements in his name. (Paley on Agency, 1.) Dr. Stewart cannot be regarded as the agent of the defendant, for he neither did, nor could authorize him to represent him in receiving the donor’s bounty; but he was designated by the donor himself. Now is it competent for a father, who desires to give property to an infant child, to appoint some person as a depositary for the intended donee? We will not say, that a deposit of property in the hands of a third person, if allowed to remain there, would not authorize the donee to recover it, upon the ground, that the donor had relinquished all claim to it in his favor. But such is not the present case. The father pro forma, delivers the possession of the slave to a friend, for the purpose of effecting a gift to an absent infant son, but all this was done without relinquishing for an instant, the dominion or property;, for it is shown by the record, that the possession of the donor continued uninterruptedly for five or six years, and until he sold the slave.

. If Dr. Stewart can be -regarded as an agent of any person, it must be as the agent -of the father. Thus considering him, the gift was never consummated ; for the father, as by law he might do, reclaimed the slave, while it was yet in the possession of his agent. It is well settled, that an authority not coupled with, an interest may be revoked by the principal, at his own mere pleasure. (Story’s Ageney, 485, et post, and cases cited.) The act of revocation, need not be direct and express —it may be indirect, and the result of other acts; thus, in the present case, the withdrawal of the slave from the agent’s possession, before the dominion of the intended donee had attached, put an end io his authority, and annulled everything that had been done towards perfecting a gift.

The record shows that, the father intended to make the son the object of his bounty, and doubtless thought that he had done so; but he failed to execute his intention in a very essential particular, viz : in parting with the dominion of the slave, by delivering her to the son. (See Chitty on Con. 45, to 48, 4 Am. Ed.) We do not undertake to say, that a gift may not ,be made to an infant, without placing his hand upon the thing given; or that a delivery may not be made to some person for him in his presence; a delivery under such circumstances, should perhaps be considered as actually made to the intended donee. But we maintain, that a mere formal delivery made to a person of the donor’s choice, in the absence of him to whom it is proposed to make the gift, does not without a change of possesion, invest the latter with the title of the former. The case of Sewall v. Glidden is unlike the present. The questions of law in that case, arose upon a special verdict; this Court thought it did not sufficiently appear from the finding, when, and to whom the delivery of the subject of the gift was made; and consequently remanded the cause, that a venire facias de novo might be awarded.

This cause must be considered as if the father himself was resisting a recovery by the son, for the plaintiff in error deduces title from the father, and has all the right which he had. If the gift was incomplete, as the evidence would indicate, it is entirely immaterial whether the purchaser from the father-knew, what he had donetowards giving the property to the defendant. Other questions are raised, but the one examined, is decisive of the cause, unless other evidence shall be adduced, than that contained in the bill of exceptions, and we consequently decline considering them.

Injustice would often result, if principles the reverse of those we have laid down, were allowed to prevail; but the law, as we have ascertained it, will operate beneficially — if the intended donee be not present to receive the subject of the gift, a deed may be executed, which, if afterwards duly registered, will be efficient to pass title.

For the refusal of the Circuit Court, to instruct the jury con-formably to this opinion, its judgment is reversed, and the cause remanded.