Wicks v. Chew , 4 H. & J. 543 ( 1819 )

Buchanan, J.

delivered the opinion of the court. This case comes up. on an appeal from a decree of the chancellor, ordering a paper executed by Richard Darnall, purporting to be a deed of manumission to the petitioners, to be recorded. By the act of 1796, ch. 67, s. 29, deeds of manumission are required to be recorded “within six months after the date,” without which thejr are of no validity in law. The instrument of writing which is sought to be recorded, bears date the 10th of May, in the year 1805, and was recorded on the 19th of May 1814, something more than nine years affer the date, and can have no effect or operation without the interposition of chancery, By the act of 1785, ch. 72, s. 11, “for enlarging the power of the high court of chancery,” it is provided, “that in case any deed hath been or shall hereafter be executed, to the validity of which recording is necessary by law, and such deed hath not been, or shall not be recorded agreeably to law, without any fraudulent design or intention of the party claiming under such deed, that the chancellor shall nave full power and authority, upon application of the party claiming under such deed, and summoning and hearing the party making such deed, his heir, devisee, executor or administrator, as the case may require, and being satisfied that the party claiming under such deed has a fair and equitable claim to the premises therein mentioned, to order and decree that such deed shall be recorded; and when such deed is recorded, it shall, in pursuance of such decree, be taken and considered in all courts of law and e-quily against the party making such deed, his heirs, devi-sees, executors and administrators, in the same state, and. to have the same effects and consequences, to all intents and purposes, as if such deed had been recorded within the .time prescribed bylaw; but such deed shall not destroy, or in any manner affect the title of any purchaser of the same thing or premises,” &c. And by the supplement of 1792, ch. 41, s. 8, directing the mode of proceeding against nonresidents, it is enacted, “that in case any deed hath been, or hereafter shall be executed, to the validity of which deed recording is necessary, and such deed hath not been, or shall not be recorded agreeably to law, without any fraudulent intention of the party claimiug under the same, the chancellor, upon petition of the party to whom the said deed was executed, or of his, her, or their legal representatives, or of any of them, claiming the land, or other thing conveyed, or intended to he conveyed, by such deed, and without the appearance or hearing of the defendant or defendants, shall have power to decree the recording of the said deed,” &c. iJpon these acts of assembly the proceedings in this case are founded; and the chancellor, in his decree, supposes his authority to order the paper in question to be recorded, to be derived from them. And the question now to be decided is, whether the chancellor has the power to order such a paper to be recorded? The acts of assembly referred to are not intended to give relief in cases which were before "without remedy, but to give an additional remedy, by enabling a party acquiring equitable rights, under a deed not operative in law for want of recording, to perfect those rights, by applying to the chancellor to order the original instrument to be recorded, and thus to give it the effect which by law it would have had, if recorded in due time, instead of going into chancery to enforce a specific performance, or compel a conveyance. They are intended (o give an accumulative remedy to persons able to contract, and who by deed acquire rights which equity will protect, with the power to prosecute those rights. But by the laws of this state, a negro, so long as he is a slave, can have no lights adverse to those of his master; he can neither sue, nor be sued, nor can he make any contract, or acquire any rights under a deed, which either a court of law or of equity can enforce. And as it is the recording of a deed of manumission within the time prescribed by law, which entitles him to his freedom, he continues a slave, and can acquire no rights under such an instrument, until it is so recorded, and consequently cannot go' either into a court of law or equity for relief of any kind. And as the acts of assembly only authorise the recording of a deed, on the application of the party claiming under it, and oil the chancellor being satisfied that such party has a fair and equitable claim to the premises therein mentioned, they must be understood to relate alone to deeds creating claims, and to persons capable of acquiring and of prosecuting such claims, and cannot be construed to embrace the case of a deed of manumission, by which no right or claim can be created until it is recorded, and the object of which, while be continues iii a state of slavery, is incapable of suing ei-tlier in a court of law or equity. A master may execute and acknowledge ¿ deed of manumission-, and afterwards ..destroy it, or'keep it, and refuse to have it recorded, and the slave remains a slave without redress. Besides, the original act of 1785 speaks of the thing or premises mentioned in; the deed, and the language of the supplement of 1792, is “the land nr thing conveyed or intended to be conveyed,” by which it is obvious that they only contemplate deeds having relation to properly.

It is therefore the opinion of this court, that the chancellor has erred in his construction of the acts of assembly.

DECREE REVERSED.