Nickerson v. Nickerson , 1868 Md. LEXIS 21 ( 1868 )

Alvey, J.,

delivered the opinion of this Court.

This was an action of trover, instituted by the appellant against the appellee, for the conversion of a negro servant, alleged to be the property of the appellant, acquired by a parol gift from the appellee. The case was tried on the general issue plea of not guilty; and at the trial the appellant took three exceptions to the rulings of the Court. Two of the exceptions were taken to the granting of prayers at the instance of the appellee, and the other to the modification of a prayer propounded by the appellant. And the sole question raised by these prayers is as to the legal sufficiency of the supposed gift to pass the property in the servant. And we think, upon examination of the several prayers, that the Court below committed no error in its rulings in reference to them. The case was as fairly and as fully placed before the jury, by the prayer of the appellant, as modified by the Court, as the appellant could rightfully ask, and as the facts of the case would justify. Apart from the Act of 1763, ch. 13, which had exclusive reference to gifts of slaves, the law of gifts inter vivos, is plain and well settled. A mere intention, or naked promise to give, without some act to transfer the possession, will not amount to a gift. To complete the investiture of title, there must be the mutual consent and concurrent will of both donor and donee, or trustee or guardian acting for the donee, in the acceptance of the gift. To be valid, such gifts can have no reference to the future, but must go into immediate and absolute effect. To the perfection of a parol gift of a chattel, delivery is essential, and without actual delivery no title passes. Delivery, to be effectual, must be according to the nature and character of the thing given. There must be a parting by the donor with the legal power and dominion over it; for if he retain the dominion, or if a locus penitentice remain to him, there can be no legal and perfect donation. Pennington vs. Gittings, 2 Gill & John., 208. By the Act of 1763, ch. 13, a gift of a negro was only required to be by deed, acknowledged and recorded, where the doner retained possession; but, in the proviso of that statute, it was expressly declared that nothing therein contained should be construed to make void any parol gift of any negro or other slave, where there should be an express delivery of such slave in pursuance of such gift, and where the sole use and possession of the same should be transferred to the donee. Thus recognizing as applicable, and applying, the general rules of the common law, governing parol gifts of other chattels, to the case of parol gifts of negro slaves. It is equally essential, therefore, under this statute, as under the common law rules before stated, that there should be an express delivery of the property at the time, and in pursuance of the gift.

And this is the established construction of this Act of 1763. Worthington and Anderson vs. Shipley, 5 Gill, 449; Anderson and Worthington vs. Hammond, 5 Gill, 461. We therefore think the Court below was right in requiring the jury to find, before rendering a verdict for the appellant, in addition to the factum of the gift, that there was actual delivery of the negro at the time, and in pursuance of the gift; and we can perceive nothing in the appellee’s prayers calculated to mislead the jury in this respect. Under the instruction given, the jury were at liberty to infer the actual delivery, as well as find thef actúan of the gift, to the appellant, or to the father for him; and, failing so to do, we can see no good reason for disturbing their verdict. The judgment appealed from must therefore be affirmed.

(Decided 28th February, 1868.)

Judgment affirmed.