McCullough v. Walker , 20 Ala. 389 ( 1852 )

LIGrON, -J.

Tbe case made by tbe bill, answers, and proof, does not authorize tbe relief sought. It can be only regarded, so far as tbe first part of tbe bill is concerned, as an attempt to establish a parol gift of a slave, made in tbe State of North Carolina, after the passage of tbe act of 1806, wbicb, in express terms, declares sucb gifts null and yoid, both in law and equity. It is true, the bill does not set up that the slave was given absolutely to Mrs. Williams or her husband, but it describes the transaction in such terms as to show that Hayes, the donor, intended that the whole estate in the slave should pass out of himself, and is thus equivalent to an absolute gift,

The courts of North Carolina have repeatedly construed this act, and have declared parol gifts of slaves to be void, in much stronger cases in favor of their establishment than the one we are now considering. In the case of Bennett v. Flowers, (1 Dev. & Bat. 467) a father-in-law made a parol gift of slaves to his son-in-law, who, dying, bequeathed them to the donor’s grand-children, with his consent, and by his directions; yet, under the act of 1806 above quoted, the Supreme Court of that State held, that the title was still in the father-in-law, and that he might resume the possession of the slave at any time. To the same effect is the case of Hamlin v. Alston, 1 Dev. & Battle, 479.

The deed of gift referred to in the bill, as made by Samuel Hayes to Mrs. Walker in 1848, does not strengthen the claim of the defendants in error to relief in equity. If that deed is operative for any purpose, it vests the entire legal estate in the slaves in Mrs. Walker, and she should have asserted her rights under it in a court of law, and not in equity, unless the bill contained other allegations than are found in this one. Baker v. Rowan, 2 S. & P. 361.

The demurrer having been overruled by the Chancellor, and his action in this respect not being assigned as error, we deem it unnecessary to consider that part of the case.

The decree of the Chancellor must be reversed, and the bill be here dismissed, without prejudice, the defendants in error paying the costs of this court, and the court of chancery.