Judges： Stites
Filed Date： 12/14/1857
Status： Precedential
Modified Date： 11/9/2024
delivered the opinion of the court.
On the 10th August, 1843, W. T. Winston, of Boone county, executed and delivered to Joseph Chambers, of the same county, the following instrument of writing:
“ Know all men by these presents, that I, William ‘ T. Winston, of Boone county, Kentucky, for and in ‘ consideration of the sum of one hundred and fifty 1 dollars to me in hand paid, the receipt of which is ‘ hereby acknowledged, have bargained, sold, and ‘conveyed, and by these presents do bargain, sell, ‘ and convey, to Joseph Chambers, of the same coun- ‘ ty and State, a certain negro girl slave named Kitty, ‘ for and during the term and period of twelve years 1 from this date, together with all increase which said ‘girl Kitty may have during said term of twelve ‘ years, to have and to hold said girl- Kitty for the ‘term aforesaid, and her increase during said term
W. T. WINSTON.”
At the expiration of the term, which ended in 1855, the girl Kitty claimed to be free, and was permitted to. and did conduct herself as a free woman of color until 1857, when, by order of the county court of Boone, she was directed to be placed in the custody of a trustee, to be hired out until “a sufficient fund ‘ was raised to defray the expense of her removal to ‘ some place out of this State, and to maintain her ‘twelve months.”' This order was resisted by Kitty, and from it she has appealed to this court.
As appears from the order itself, the county court proceeded upon the opinion that Kitty, though free, had acquired her right to freedom under the present constitution, and, as her former owner had failed to provide for her removal from this State, that it became the duty of the court, tinder the requisition of the Revised Statutes, (chapter 93, article 9, section 3,) to make the order in question for that end.
l. A deed using ]angUac,e ;n re. Sard •j0 a slave, hereby eraancipatedand set g.®® ^KHty,'” gives an immediate vested righttofreedom, though thesame deed postpones the right t.o enJ0y freedom
If, as was supposed, Kitty’s right to freedom did not accrue until the expiration of the twelve years mentioned in the bill of sale, there can be no doubt of the propriety of the order, under the section of the Revised Statutes supra, which was enacted in conformity with the requisition of the present constitu- • / •• ,,, _ . . i i tion, (constitution, art. 10, sec. 1.) But such was not the case. Her right to freedom was created and & _ vested by the execution and delivery of the bill of sale from Winston to Chambers, and existed prior to the adoption either of the present constitution or Revised Statutes. The postponement of the enjoyment of such right neither impaired the right itself nor effected its enjoyment in such manner as-the laws then subsisting allowed. (7 Dana, 34; 10 Ben Mon. 101; 4 Dana, 589; 6 J. J. Mar. 332.)
Nor has the enjoyment of such right, so vested prior to the adoption of the present constitution and the Revised Statutes, been restricted or curtailed by eRher- All then subsisting rights are saved and Pr<Aec*-ed by both. (Sec. 1 schedule of the constitution', Rev. Stat. 77, and 3 sec. of the act to adopt the Revised ®tatutes> 127.) Besides, it has been expressly held by this court, in Jackson vs. Collins, 16 Ben. Monroe, 220, that aright to freedom, acquired prior to the adoption of the present constitution, is unaffected by r r ’ " its provisions, or any legislation thereunder. Its ex-excise and enjoyment is controlled by the laws in' force at the time it vested.
it results, therefore, as Kitty s right to freedom accrued before the adoption of the present constitution, although its enjoyment was postponed until after-war(jgj t]jat tfie provision of the Revised Statutes suPra'' requiring county courts, when the person emancipating a slave shall fail to provide for his removal out of the State, to direct such slave to be hired out until a sufficient fund shall be raised for that purpose, does not apply to her case, and that the order complained of was unauthorized and erroneous.
Wherefore, said order is reversed, and cause remanded with directions that the same shall be set aside, and the motion dismissed.