Citation Numbers: 19 Ky. 30
Judges: Mills
Filed Date: 11/12/1825
Status: Precedential
Modified Date: 7/29/2022
delivered the Opinion of the Court.
The appellee, by her next friend, brought her action of detinue against the appellant, for a negro man slave, to which action the appellant pleaded non detinet.
On the trial the appellee gave evidence that, when she was three or four years of age, she was taken on a visit to her paternal grandfather’s dwelling, in 1808. While there, the grandfather presented to her the negro boy slave in question, about the same age with herself; that her father took the slave into custody for his child, brought him home and kept him as other slaves till 1819, when be died, and that Ills administrators, of whom his widow was one, did not, aware of the appellee’s claim, place the
The counsel for the appellant moved the court to instruct the jury, that if the father of tire appellee had been in possession of the slave for more than five years before his death, there being no evidence of a gift in writing, the pretended gift to the appellee was fraudulent and void as to tire creditors of the father, and that the slave was subject to the judgment and execution by virtue of which he was sold. The court refused this instruction, and the appellant excepted; and tire verdict and judgment having been rendered against Slim, he has brought the case to this court.
We conceive, with the court below, that the instruction asked ought not to have been given, it was an attempt to induce the court to decide, that the case came within that section of the act to prevent frauds and perjuries which vitiates loans or grants for more than five years, when the reservation is not made in writing. This is- not a loan or a grant from the father to tho child, he remaining the ostensible owner. It is neither a loan nor a gift from the grandfather to tire father, but a positive gift to the grand child. Neither the creditors of the grandfather nor of the grandchild have disturbed the title, bat tho creditors of lire father te
The only remaining question is the propriety of the decision of the court below, in overruling a motion for new a trial, because the verdict was against both law and evidence. We have answered the law of die case already — and as to the evidence, it was a matter peculiarly proper for the decision of the jury, and we cannot say that they have decided wrongfully.
The judgment must be affirmed with costs and damages on the damages given below.