Hill v. Duke , 6 Ala. 259 ( 1844 )

GOLDTH WAITE, J.

We think the charge of the circuit court, so far as it asserts that the possession of the slaves by Adams, in Georgia, had nothing to do with the case, cannot be sustained.

Independent of our statute of frauds, the question before the jury was, whether Duke parted with the possession of the slave sent home with his daughter after her marriage, as a loan, or as a gift. In this aspect, there could be few facts of more weight than the long continued possession of the husband. It is certainly correct, that the presumption which arises when a father sends slaves home with a daughter upon or after her marriage, may be rebutted or explained; but this must be done by clear and satisfactory proof that it was notoriously and expressly understood not to be a gift at the time. [Carter’s Ex’rs v. Rutland, 1 Hayw. 97; Killingsworth v. Zollicoffer, 2 ib. 72; Robinson’s adm’r v. Devore, 2 ib. 154.] It is not very material in the investigation of such a question, what the transaction is called by the parties, as it becomes a loan or a gift according as there is, or is not, an intention on the part of the father to resume the possession at some future time. It is indeed very difficult to draw a distinction between a loan for an indefinite period of time, by a father to a child, when no definite object is to be accomplished by the loan, and an absolute gift. But when such a loan is extended over a period of ten years, and no period is fixed for its determination, it is not too much to say, in a contest between a creditor and the donor, that a strong presumption to infer a subsequent absolute gift is well warranted, even if the bailment was originally designated as a loan between the parties themselves.

We forbear to express any opinion upon the charge requested, further than that it seems to have considered the case as a question of law upon the facts proved, when it was only one as to the intention of the supposed donor at the time when he parted with the slave, or at some subsequent time.

Judgment reversed, and cause remanded.