Marshall v. Fulgham , 5 Miss. 216 ( 1839 )

Mr. Justice Smith

delivered the opinion of the court.

This was an action of replevin instituted in the circuit court of Copiah county. Fulgham who was the defendant below, pleaded in bar to the action; and set out that he held the slave Robert, who was the subject matter of the controversy, by virtue of two déeds of gift, which he alleged vested in him an unqualified right of property in the said slave. The first of these is described as a deed, executedby Jesse Fulgham, uncle to the defendant, and under whom the plaintiff claims as donee also, which reserving to the donor and his wife Mary, a joint life interest in the property conveyed, vested in the defendant after the death of the said donor and his wife, the full ownership to the same; the second as a deed executed by the said Mary after the death of her husband, relinquishing the interest in the slave which had thus survived to her. The plea contains no averment that delivery was made either at the time of executing the deeds, or at any subsequent period, of the property intended to be donated. To this plea the plaintiff demurred, and assigned as special cause of demurrer, the absence of such averment in the plea. This demurrer was rejected by the court, upon the alleged ground that it was manifestly frivolous, and intended for delay. The plaintiff then replied to the plea of the defendant, and his replication was held bad upon demurrer. Upon which the parties joined issue by consent, and the plaintiff filed his affidavit for a continuance of the cause. The contents of this affidavit are embraced in the bill of exceptions to the opinion of the court, who held that an application for a continuance in the action of replevin upon any ground was inadmissible. The cause was then submitted to the jury upon the issue joined, who having found for the defendant, it has been removed into this court by appeal.

Several questions are presented by the assignment of errors, two only of which it is deemed necessary to investigate. And as there exists between them no necessary connection I will consider them in the order in which they are presented by the record.

1. It was contended by the counsel who represented the interests of the appellee, that applications for the continuance of causes are addressed exclusively to the sound discretion of the court; and that the exercise of this discretion does not constitute the legitimate subject of a writ of error; and that as the statute requires the issue to be tried at the return term of the writ in actions of replevin, it necessarily precludes the circuit courts from hearing applications of this character. The correctness of the first branch of this proposition is clearly established by authorities of the highest character, which we are not disposed to call in question. But the other is based upon a mistaken construction of the law in relation to the action of replevin. The statute intended to make suits of this character triable at the first term after the writ is made out, and to compel the parties to use all due diligence in bringing their cases to trial, By no just rule of interpretation can it he maintained that the statute intended more than to insure a trial at the first term, if it could be had in conformity with the established rules of procedure. To give to the statute any other construction, we must suppose that the legislature intended that actions of replevin should be abated in case the defendant should die prior to the return term of the writ; or that a trial should be had although there might not be in existence proper parties to the suit. It is therefore manifest, that it was the imperative duty of the judge to allow the application for a continuance to be made, however irresponsible would have been his act in deciding upon the sufficiency of the showing. We are equally dear in the conviction that this was error; for which the judgment of the circuit court ought to be reversed.

The second question which I propose to consider, arises upon the demurrer to the plea of defendant. The question is substantially this, is a gift by deed of a slave, founded upon a consideration of blood between uncle and nephew, unaccompanied by delivery of possession to the donee, valid as to a subsequent donee, who holds by virtue of a deed of gift, perfected by a delivery of possession? This question is important, and not without some difficulty. By the second section of the statute of frauds and perjuries, Rev. Code, p. 192, it is provided that if any conveyance be of goods or chattels, and be not on consideration deemed valuable in law, it shall be held to be fraudulent, within the act; unless the same be by will duly proved and recorded, or by deed in writing, acknowledged or proved, and recorded in the county where the donee shall reside or the property shall be; unless possession shall really and bona fide remain with the donee. The deed under which the defendant claims title in this case is not alleged to have been proved and recorded pursuant to the requisitions of the statute. But if it had been averred that the deed was duly proved and recorded, the case would still be within the provisions of the law, as the deed is not founded upon a good consideration, much less one which in the language of the act, is deemed valuable in law. It remains then to be inquired whether the possession of the donor, being consistent with a provision of the deed, is to be regarded as the possession of the donee. There is nothing appearing upon the record by which it is established that the relation of guardian and ward subsisted between the donor and defendant. They are strangers, and although the donor continued in possession of the slave according to the provisions of the deed of gift, yet it cannot be held that his possession was in legal contemplation that of the donee. The deed of gift, then, cannot be regarded as of greater validity, or of more extensive effect, than a parol gift without delivery. A gift of a chattel personal, is the act of transferring the right and the possession thereto; whereby one man renounces, and another man acquires, immediately, all title and interest therein. No consideration is necessary to support it, and if made under circumstances where the law will not raise a presumption of fraud in the donor, it is good against the world, where there is an immediate delivery of possession. But if the gift does not take effect by immediate delivery of possession, it is then not a gift, but a contract. See 2 Black. Com. 442. It follows then that the defence set up in the plea of defendant, is not sufficient to bar the recovery sought, and that the court erred in rejecting the demurrer of thé plaintiff to the said plea.

[Note.—This cause was decided in 1835, and overlooked by the Reporter.]

Judgment will be reversed, and judgment of respondeas ouster against defendant below.