Cheney v. Duke , 10 G. & J. 11 ( 1838 )

Stephen, Judge,

delivered the opinion of the court.

The decision of the question involved in this case, mainly depends upon the true contruction of the 4th and 5th sections of an act of assembly, passed by the legislature of this state in the year 1817, ch. 112, entitled, “an act to prevent the unlawful exportation of negroes and mulattoes, and to alter and amend the laws concerning runaways.”

The suit was brought to recover the price in part of a slave for life, sold by the appellant to the appellee. A part of the purchase money was paid, and the slave delivered to the purchaser, pursuant to the terms of the contract of sale, and it is admitted, for it could not be denied, that apart from the supposed operation of the act of assembly, the sale was a valid one, both at common law', and under the provisions of the statute of frauds and perjuries. The right of the plaintiff to recover must consequently depend upon the true construction of the provisions of the above mentioned act, and the intention of the legislature, designed to be accomplished by its enactment.

The fourth section provides that, whenever any persons shall purchase a slave within this state, for the purpose of exporting or removing the same, beyond the limits of this state, it shall be the duty of the purchaser to take from the seller a bill of sale for said slave, in which the age and distinguishing marks, as nearly as may be, and the name of such slave, shall be inserted; which bill of sale is to be acknowledged, and recorded, within twenty days, in the county where the sale shall be made; and it is made the duty of the clerk, on demand, to deliver to the purchaser a copy of such bill of sale, with a certificate endorsed thereon, under the seal of the county, that the same has been duly recorded. This certificate required to be delivered to the purchaser when demanded by him, was manifestly intended by the law to be a muniment of title for the benefit of the purchaser, and to protect his interest in the property purchased. -

The fifth section provides for a sale of any slave for the benefit of the county, which shall be purchased in'violation of the provisions of the fourth section, after a judicial investigation into the circumstances, shall be had by the proper tribunal invested with jurisdiction for that purpose.

The first inquiry which a correct decision of this question would seem to suggest- is, upon whom does the law impose the duty of complying with. its requirements', in' taking and causing to be acknowledged and recorded, the bill of sale, as an evidence of title? This question is answered by the explicit, and unequivocal provisions of the fourth section, which emphatically declares it to be the duty of the purchaser, — no such duty is, in terms at least, imposed upon the seller. He then is not in default by omitting to give, but the purchaser by omitting to take the bill of sale as directed by the law. For this omission the law is penal in its effects, and inflicts a forfeiture of title, — the question then arises, on whom ought the forfeiture to fall, and the penalty of losing the right of property to be inflicted? Common justice, and common sense would seem to dictate, not on the innocent vendor, who has done nothing in contravention of the law, but on the guilty purchaser, who has acted in culpable defiance of its provisions. But it has been contended on the part of the purchaser, that this suit for the purchase money cannot be sustained, if the seller knew at the time of the sale, that the purchaser of the negro slave, intended to remove him beyond the limits of this state, without taking a bill of sale, as an evidence of the transfer of title, which it is supposed in such case it was the duty of vendor to give, as well as the duty of the vendee to.take, according to the true and sound interpretation of the act of assembly. This court is not of that opinion; and we shall look in vain for any countenance to such a proposition to be found in the law, which we are now called upon to expound. So far as the performance of such a duty is enjoined or required, the vendor, we think, might well be passive, as the law makes it in terms the duty of the purchaser alone. If then, the true exposition of the law, did not impose it as a duty upon the vendor, to execute and deliver to the purchaser a bill of sale, with such knowledge of his intention, was such sale so far contaminated, and rendered illegal by such knowledge alone, as to bar his right to recover the purchase money ? We think not; and such seems to be the principle of the decisions referred to in the argument. The naked fact of knowledge alone, of the illegal purpose existing in the mind of the vendee, unaccompanied by any aid in furtherance of its execution by the vendor, would, we think, interpose no such bar.

The act of assembly in none of its provisions vacates the contract of sale; it only requires the bill of sale to be taken by the purchaser as an evidence of title, where the purchase is made with intent to remove the slave beyond the limits of this state. The sale itself not being rendered illegal and void, no obstacle can exist to the recovery of the purchase money, unless it arises from the fact of a knowledge on the part of the vendor, of the illegal purpose contemplated by the vendee, at the time the purchase was made, and when nothing is done by the vendor, in aid, or furtherance of the attainment of such illegal design. That knowledge alone by the vendor, without any participation in the accomplishment of the illegal, or prohibited purpose by the vendee, will not close against him the doors of a court of justice, when seeking to recover his purchase money, is we think, abundantly proved by the judicial decisions referred to in the course of the argument. These principles are established by several cases referred to in Comyn on Contracts, 64, where he says, “ where the defendant an Englishman, living in England, contracted with the plaintiff a foreigner, living at Lisbon, for a quantity of lace, which the plaintiff knew was to be smuggled into England, and the plaintiff for that purpose, had it packed in a particular manner by the direction of the defendant, for the more easy conveyance of it into England, without a discovery, the court held that the contract was void, and that the plaintiff could not recover the value of the goods.” In that case it is manifest that the court pronounced the contract to be invalid, and defeated the attempt to recover the purchase money, on the ground that the plaintiff was a party to the fraud attempted to be practised upon the revenue laws of the country in which the suit was instituted. He was aiding and assisting in the unlawful importation, by facilitating the means of perpetrating the fraud, and therefore, could not receive the countenance of a court of justice. But in the same book, and at the same page, it is said, that the merely selling goods, knowing that the buyer will make an illegal use of them, is not of itself sufficient to deprive the vendor of his right of payment, but to affect him, it is necessary to shew that he is either a sharer in the illegal transaction, or that he aided and assisted in the act of smuggling. Thus in the case of Holman vs. Johnson, where it appeared that the plaintiff residing, at Dunkirk, sold and delivered a quantity of tea, for the price of which the action was brought, to the order of the defendant, knowing it was intended to be smuggled into England; but the plaintiff had no concern in the smuggling himself, it was held by the court of King’s bench, that this was a legal contract, and that an action might be supported on it; — and Lord Mansfield, in giving judgment, lays it down, that if goods are sold abroad to be delivered in England, where they are prohibited, the contract is void, and the buyer shall not be liable to an action for the price, because it would be an inconvenience, and prejudice to the state. If such an action could be maintained, and the cases in Cowper, 341, and Hodgson vs. Temple, 5 Taunton, 181, are referred to as supporting these principles. In the case put by Lord Mansfield, the vendor was a sharer in the illegal transaction, because the goods were to be delivered in England, where they were prohibited, and therefore the law would not assist him in the recovery of the price to be paid for the goods brought into England, in violation of a legal prohibition. The same principle is asserted, and to be found in a note in the 3rd English Com. Law Rep. 43, where it is said, a person who sells goods, knowing that the purchaser intends to apply them in an illegal trade, is nevertheless entitled to recover the price, if he yields no other aid in the illegal transaction, than selling the goods, and procuring permits for their delivery to the agent of the purchaser. To deprive the vendor of his just right of payment, (says Mansfield, chief justice,) it is necessary he should be a sharer in the illegal transaction, and in support of this doctrine, the case of Hodgson vs. Temple, 5 Taunton, 181, is also referred to. These decisions, we think, abundantly shew that the facts stated in the bills of exception in this case, if true, interposed no obstacle to the plaintiff’s recovering, and that the judgment of the court below was therefore erroneous, and ought to be reversed.

JUDGMENT REVERSED AND PROCEDENDO ORDERED.