Mushat v. . Brevard , 15 N.C. 73 ( 1833 )

The statement in the case "that an account of the articles (76) sold was kept by the executors, and that on the slave being bid off by the plaintiff, he was entered on the account as the purchaser," and those parts of the charge brought before us for review which direct the jury, "that the auctioneer was to be regarded as the agent of the vendors, that if he knocked down the slave to the plaintiff's bid, and the slave was entered on the account of sales as purchased by the plaintiff, and if a delivery was then made by the auctioneer to the plaintiff, although he had no right to the possession of the slave till a compliance with the terms of the sale, yet the title passed to him, and the death of the slave in the interim would have been his loss," — and furthermore, "that if after the purchase it was agreed between the executors and the plaintiff to postpone the taking of the bond till the next day, or, if in fact, the sale did not close till next day, and bond with approved surety was tendered on the day following the bid, that gave a right to the plaintiff to demand the possession," — all these seem designed to call upon this Court for an exposition of the statute of 1819, "to make void parol contracts for the sale of land and slaves." Were it necessary for a correct determination of the cause to decide whether in this case there was such a written memorandum of the contract, signed by the vendors or by any person thereunto authorized by them, as conformed to the requisitions of this statute, we should much regret that the facts in relation to the account of sales were not more fully set forth. We should then desire to know whether the terms of the sale were expressed in it; whether it was, in fact, signed by any person, and if so, by whom; whether it purported to contain the full evidence of the several contracts of sale, or was a mere memorandum to help the memory of the executors, and contained but the names of the articles set up for sale, of the persons who became the highest bidders, and the prices at which the articles were severally bid off. It appears to us, however, wholly unnecessary to decide this question, if in truth it was intended to be presented for our decision. The plaintiff has not instituted an (77) action against the executors for a breach, or non-performance of their contract, but sues the defendant for a detention of his slave, which he alleges became his property by virtue of the executed contract of the executors. If the executors were bound in law to comply with their contract for a sale but refused to execute it, the property in the slave was not changed, and the plaintiff cannot maintain this action. If the executors were not bound to execute the contract, but nevertheless did execute it, the plaintiff became the legal owner of the slave, and is entitled to this remedy against any person who withholds from him the possession of the slave. The act of 1819 applies to executory contracts and to these only. Choate v. Wright,13 N.C. 289.

The act of 1784 (Rev., ch. 225), and 1792 (Rev., ch. 363), furnish the law by which the case is to be decided. The first requires that sales of slaves shall be in writing attested by at least one credible witness, and shall be proved and registered, in all cases where the claims of creditors or purchasers may be affected. The second enacts that all sales of slaves bona fide made and accompanied with the actual delivery of the slave or slaves to the purchaser, and which would have been held good and valid before the act of 1784, shall be good and valid without a bill of sale. The plaintiff and the defendant both claim the property in dispute as purchasers from the executors of Thomas. It became necessary for the plaintiff to show that the executors had transferred the slave to him, and this could only be done by exhibiting such a written transfer as the act of 1784 requires, or proving such a sale and delivery as the act of 1792 declares shall be valid. No written transfer was produced or alleged; and the plaintiff undertook to prove a bona fide sale accompanied with the actual delivery of the slave. No evidence was given of a delivery in any way by the executors or either of them personally. It is not stated that the plaintiff had the actual possession of the slave, issued any order to, or exercised any dominion over him, before he tendered his bond to the executors and demanded a delivery from them. When this tender and demand were made, the executors repudiated the (78) contract, and refuse to make the delivery — and after this refusal sold the slave to the defendant. Unless the facts which occurred at the time the negro was bid off, and on the evening of that day, that is to say, the declaration of the crier to the negro (for it could not have been to the plaintiff), "there is your master," the negro being present, and the executors, who might have heard the observation, saying nothing to the contrary, and the agreement between the executors and the plaintiff, to defer until the next day the taking of the bond and surety for the purchase money — unless these facts amounted in law to an actual delivery, or furnished evidence from which the jury might infer the fact of an actual delivery, the alleged transfer to the plaintiff was invalid, because it was not accompanied by a delivery. It is with reference to these facts that the most important part of the charge remains to be examined. "The Court instructed the jury that a corporal delivery was not necessary; that if the slave was present and declared by the owners or the auctioneer, to be the plaintiff's property, so that the plaintiff might take hold of him, and no objection then stated, it amounted in law to a delivery." As there was no evidence of such a declaration by the owners, and as the charge states the law to be the same whether the declaration were made by them or by the auctioneer, the appellant has a right to require that the instruction shall be considered as though the words "by the owners" were stricken from it.

We are compelled to dissent from this instruction. Unquestionably the actual delivery required by the act of 1792, may be made without a manual touching of the body of the slave, but we hold that it must be manifested by some act or acts, from which it can be seen or clearly inferred, that the possession of the slave has been unequivocally relinquished by the vendor and taken by the vendee. The statute is emphatic in requiring not delivery merely, but actual delivery, and we think that nothing short of such a change of possession as manifests that the bargain is consummated, and that nothing remains to be done between the parties in relation to the subject matter of the (79) bargain, will satisfy this requirement. To prevent frauds and perjuries, to shut the door on the misapprehensions and contradictory statements and misrepresentations of witnesses, and to give authenticity and notoriety to the transaction, such a delivery must be proved, or a written, attested and registered transfer produced, whenever the title of a creditor of the vendor, or a purchaser from him, is attempted to be disturbed by a sale alleged to have been previously made. If the declaration of the crier and silence of the executors constituted such a delivery, then the negro became absolutely the property of the plaintiff; the condition in the terms of sale, that bond and approved surety should be given before the close of the sale was waived, and the executors were to give a personal credit for the purchase money to the plaintiff. It cannot be believed that the parties, either the plaintiff or the executors, understood what was said by the crier (for nothing was done) as amounting to such a delivery. After this declaration, we find them negotiating on the subject of paying or securing the payment of the purchase money, and postponing the completion of this very material part of the bargain until the next day. The vendors too, were executors, making sale of the personal estate of their testator. The law imposed it as a duty on them to take security from the purchasers before they delivered the property; and from the advertisement down to the tender of the plaintiff and his demand of a delivery, and of their refusal to make it, there is not a circumstance indicating an intent to part with the possession, until the price was paid or secured to their entire satisfaction. Was the declaration of the crier evidence from which an inference could be drawn, that he undertook to waive this part of the bargain, and to deliver possession before the price was paid or secured? We think not. The executors were in truth the auctioneers, and the crier but their servant. The advertisement for the sale was made, not by him, but by the executors. The bonds were to be taken not to him, but to the executors, and the sufficiency of the sureties passed on, not by him, but by them. The account of sales is kept (80) not by him, but by them, and they (the case states) generally attended to and managed the sales. No agency of any sort is shown to have been performed by him except to cry the property, and without some evidence of an authority to act further, the law cannot imply that he possessed it. If this then, was his only authority, the declaration must be understood as made with reference to it, and as merely the annunciation to the slave, awaiting anxiously the result of the competition, of the person ascertained to be the highest bidder, and who, of course, was expected to become his master. If indeed, after this declaration the plaintiff had proceeded to exercise unequivocal acts of ownership over the slave — as by sending him to the plaintiff's home or avowedly claiming the possession of him as then the plaintiff's property, such acts done in the presence, and with the knowledge and acquiescence of the executors, might have been left to the jury as evidence (whether strong or weak, I shall not pretend to say) of a waiver on their part of any further act to be done for the completion of the bargain, and an absolute delivery of the slave by them to the plaintiff. But the declaration of the crier at the moment the bidding terminated, "there is your master," although the slave and the owners were present — although the plaintiff might take hold of him, but did not — the owners saying nothing and doing nothing — there being no apparent change of the possession — no money then paid, nor secured to be paid, nor personal credit to be given, is not, we think, either a delivery in law, or evidence from which a jury could infer a delivery in fact.

It is the opinion of the Court that the judgment rendered in the Superior Court be reversed, and a new trial granted.

PER CURIAM. Judgment reversed.

Cited: White v. White, 20 N.C. 564.

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