Overton v. Allen ( 1859 )

McKinney, J.,

delivered the opinion of the Court.

This was an action of detinue, brought by Allen, as executor of the estate of A. W. Overton, Sr,, deceased, against A. W. Overton, Jr., for the recovery of a slave, named Henderson.

The facts were agreed upon in the Circuit Court, and are as follows : About the first of January, 1855, the defendant, Overton, proposed to his uncle, A. W. Overton, Sr., to hire from him the slave, Henderson, at $100 a year, for which he offered to give a note with security. To this the former “ replied that he wanted no note or security, but that he (the defendant,) might take the negro and pay him one hundred dollars a year for his hire, when he called for it, and to pay no one else; and to keep the negro until he called for him, and that if he never called for him, he was his.”

A. W. Overton, Sr , died in July, 1857, without ever having demanded the return of the slave, or claiming payment of hire, so far as the proof shows. After his death, possession of the slave was demanded by the executor, which was refused, and thereupon this action was commenced.

Upon these facts, the Circuit Judge held, that the plaintiff was entitled to recover the slave, and gave judgment accordingly.

It is argued that this judgment is erroneous; and., upon common law principles, the argument is unanswerable. Over-ton having died without reclaiming, or resuming the possession of the slave, the qualified gift became absolute in the do-nee, as against the personal representative of the donor, and all oth ers claiming merely as volunt eers under him. But, by an act of 1881, ch. 90, sec. 12, a parol gift of a slave is declared to be “utterly void and of no effect whatever.” And this is so, as has been repeatedly held in the construction of the act, as between donor and donee. 10 Yer., 486; 5 Hum., 129.

The gift being absolutely void, and no title having been acquired by an adverse possession, under such void gift, it necessarily follows that the title is in the legatees under the will of the donor. And no objection is made to the right of the executor to maintain the action for the recovery of the slave, for their benefit.

The judgment must, therefore, be affirmed.