June, 1830.

#### Sarah Peterson v George Williamson,

V-From Caswell..

The Proviso in tlie act of 1830, {Rev. c. 1055,) extends not only to gifts void by (he act of 1806, {Rev, c. 701,) but also to those which are void by the act of 1784. {Rev. c. 225.)

Where a parent before the year 1806, being unembarrassed, made a parol gift of a slave to a child, and the child and slave resided in the family of the parent- — held that the gift was void as to creditors of the parent, whose debts were contracted t vventy years afterwards.

The gift is so absolutely void against purchtsers and creditors, that an open and notorious adverse possession by the child, together with perfect bonafiles in both the parties, cannot validate it against creditors of the donor, without respect to the time when their rights accrued.

Per Rdeetkt, Judge — The construction of the act of 1784, {Rev. c. 225,) by which parol gifts of slaves were held to be valid between the parties, but void as to purchasers and creditors, was founded in error, but has prevailed so long as to be beyond the reach of judicial correction.

The cases of Knight v. Thomas, (1 Hay. 289,) McCree v. Huston, (3 Murph. 429,) & Watford v. Pitt, {Ditto, 468,) commented upon by Rems', Judge.

Detinue for a female slave, Hannah and her four children. The Defendant pleaded the General Issue, and on the trial before his Honor Judge Donneie, it appeared that in the year 1801, James Peterson, the father of the Plaintiff, made a parol gift of the slave Hannah to her — the slave being then only a few days old, and the Plaintiff a child aged fifteen years — that the father at the time of the gift, owned one other slave, the mother of Hannah; was then unembarrassed, and so continued until the year 1820 j since then lie had been gradually failing, and had become wholly insolvent ' At October Term, 1828, of Caswell County Court, judgments to an amount greater than the whole of James Pe-tersons estate were entered up against him, upon which executions issued to the Defendant, the Sheriff of Cas-well, who seized and sold the slaves mentioned in *327the Declaration. It was in proof that Hannah, and her children, as they were successively born, lived in the family oí Peterson the father, and worked as the other negroes belonging to him did. There was also evidence that the Plaintiff exercised a control over them.

In the Court below, it was insisted for the Plaintiff, that her possession, under the act of 1820, (Jlev. c. 1055) gave her an indefeasible title.

His Honor instructed the Jury that the parol gift under which the Plaintiff claimed, was void as to the creditors of Peterson, the donor, and their rights not.having accrued until the levy under the execution issued in the year 1828, and the Defendant being clothed with all the rights of the Plaintiff in these executions, the present was not a case in which the act of 1820 would have availed the Plaintiff, had she been Defendant in an action claiming under that parol gift, and therefore was not within the operation of that act, regarding either its words, or the spirit of the enacting clause, or the proviso.

A verdict was returned for the Defendant, and the Plaintiff appealed.

Gaston and Winston for the Plaintiff,

insisted that she had an adverse possession of the negroes, as the proprietor of property has in law the possession thereof, unless some other person lias the actual possession against the will of the proprietor.

That the act of 1784, (Rev. c. 225, sec. 7,) did not render a parol gift entirely inoperative, but avoided it only as to purchasers and creditors ,• that if concluded the donor from asserting any title to tiie slaves for his own benefit, but left in him a title which might be asserted by purchasers or creditors; hut that in the latter case it was the title of the donor which was asserted, and any thing which affected his title would bar purchasers and *328creditors, and that therefore the adverse possession of the Plaintiff, aided by the act of 1820, affected the creditors, as it had existed more than three years, and as the statllte 0f limitations necessarily begins to run from the commencement of an adverse possession.

Nash, for the Defendant,

contended that the parol gift was void against creditors both by the Statute 13. Elizabeth, and the act of 1784. For this he cited Knight et nx. v. Thomas, (1 Hay. 289,) West v. Bubberly, (JV* G. Term Rep. 38,) Sherman v. Russell, (1 Law Repos. 467,) McCree v. Houston, (3 Murph. 429,) Watford v. Pitt, {Ditto, 468.) He contended that the act of 1820, (Rev. 1955,).“to quiet the title of persons in possession of slaves,” applied only to those cases in which before the passing of that act, the right of action was barred by the statute of limitation — tiie object of the act being to make three years possession not only a bar to an action, but an indefeasible title as to all persons whose actions were barred by the lapse of three years. As between Peterson and the Plaintiff, the statute of limitations did not run ; it was entirely inoperative, and therefore the possession of the daughter, as against the father, was not ripened info a title, being good without it — and as to creditors, their rights not accruing until within three years, the statute did not bar them, and of consequence the act of 1820 did not operate.

Ruffin, Judge.

The propriety of the instructions depends altogether upon the correctness of the assumption, that the gift, being by parol, was void as against the creditors, who had executions. For nothing can be more certain, than that the statute of limitations cannot run, until the right hath accrued, or the action arisen. I do not speak of the gift being void, as being fraudulent within the statute of 13 Elia. It is indeed plaiuly so ; for it is past my conception, bow a father, although not indebted at the time nor for a long time after, can hoi *329iicstly give to an infant child, living with him, a slave a few days old, and honestly keep the possession of the slave, using her as his own, supporting her and several of her phildren through the long period of twenty-seven years, eight of which were those of pecuniary embarrassment, which ended in insolvency. Such a possession was so, manifestly deceptive fo the world, as to bo covenous and fraudulent as to his creditors, if it be said that it is doubtful, whether the father or the daughter liad the possession, that doubt is a fraud upon the donor’s creditors; to which Í should think it hard to make a Jury shut their eyes. The donee ought to have a clear, separate, and unequivocal possession — so that nobody could be cither deceived or mistaken.

But the Court took that point out of the case, by informing the Jury that the gift was void, because it was by parol. So that we are to view the case, as if the daughter had such an exclusive, possession, as would indicate a bona fide gift. I confess that the best convictions of my understanding are opposed to the position, and that it is revolting to my feelings. Yet under the construction put upon our act of 1784, (Rev. c. 225, scq. 7,) I believe the Judge was right. I have not a doubt, that flic act was intended to be one of frauds and perjuries, and to declare that all conveyances of slaves, whether voluntary or for value, should be void to all intents and purposes. It, unfortunately, did not get that meaning put on it at first; and conveyances by parol, were held to be good between the parties. This has often been since lamented by several able Judges; and the Legislature has by successive acts attempted to correct it. The omnipotent one of 1806 goes to the root of the evil, as far as relates to gifts of slaves; and that of 1819, (Rev. c. 1016,) was probably intended to embrace sales, though its words extend only to contracts to sell. One error naturally leads to another. When the act of 1784 was held not to avoid the contract altogether, it. seems *330{0 that it resulted in this — that it had no meaning whatever, in connexion with creditors. Possibly it |)p strained to supply the defect in the Stat. 27 in favor of' purchasers; because that statute did not extend to personal chattels, and a purchaser from one in possession, (as the vendor must be,) of such a chattel ought not to be postponed to a prior voluntary alienee. But even this was a hard, very hard measure' of justice, where the gift had been bona fide, and by one not indebted, and the donee had taken and held the possession for a great length of time. It would be a fraud in the donor, greater than that committed in making the gift, to avoid it by a sale, upon any freak, ami after the donee had settled in life, reared a family', bred up a numerous progeny of the slaves, and got credit on them as his property. The express words of the English Statute compelled their Courts to put this interpretation on it, as to lands. But two of the most eminent of the Judges, Lord Mansfield and Lord Ellenborough, have expressed earnest complaints of the rule, which the letter of the statute imposed on them. I do not see a reason, why our Courts, without such a legislative mandate, but by mere construction, should have adopted it. But it has been by repeated decisions, and particularly, after able arguments, in the cases of McCree v. Huston, (3 Murph. 429,) and Watford v. Pitt. (Id. 468 ) In reference to creditors however, there was no necessity for a new rule •, because if the conveyance was not bona fule, their interests were sufficiently protected by the 13 Eliz. and our own act of 1715. (Rev. c. 7, see. 4.)

When it was determined, that the gift was not merely void as a parol gift — that snch a gift was in form sufli-cientto pass the title — it seems to me, that the only thing then remaining, which ought, in reason to affect it, was, that it was founded in bad faith ; in other words, that it was fraudulent.- How could it be fraudulent as to creditors, when the donor had no creditors, at or near the *331'time of the gift; or if he had, he had likewise ten times as much other property as would satisfy them, and tiie * * , donee took immediate, exclusive and notorious possession i Without such possession in the donee, and such abi-Iity in the donor, the gift, tho’ made in the most approved and solemn form in writing, could not, and ought not to stand. With them, it ought to stand, in any form that will in law pass the title. For there is no medium, which my reason can appreciate as just, between those laws, which declare that stipulations, except in a certain form, shall not constitute a valid contract to any purpose, and those which declare a contract, in whatever form, void as against particular persons, to whose injury it was designed, or liad a tendency to operate. Yet, as it was obvious, that creditors were sufficiently secured before «gainst fraud, as the statute recited that many persons had been injured by secret deeds of gift, and for the want of formal bills of sale, and as the parties were said not to be within the mischief, it became necessary to put some other meaning on the act. Then came the construction, that a parol gift, good between the parties, and without fraud as to creditors, was nevertheless, as to the latter, void. Tiiis turns the act, into the legislative anomaly, of being neither a statute of frauds, nor of fraudulent conveyances. It avoids contracts which arc good, so far as their validity depends on the intent j and it avoids them in favor of a class of persons, having no more merit than he, the donor, has, against whom they are valid. As to the donor, the parol gift stands firm ; as to his creditor, it is void for want of form, and for that only. The consequence is, that a creditor, whose debt is contracted at any distance of time, and not on the faith of this property, may defeat the gift $ because, as to him, it is void for want of form, precisely as a pa-rol gift, since 1806, is void as against the donor himself. Even the death of the donor would not convert the gift into an advancement, as against a debt contracted *332thirty years afterwards, for tiie want of such a proviso as is contained in the third section of tiie statute of 1806, Thus the act is turned into a statute of frauds and perjuries, as relates to the creditor, while it is not so as to the donor, and while, the gift is sine mala fule witii re-spert to the yi bole world, being from a parent amply able to pay his debts, and made in the discharge of tiie first natural duty, that of advancing his child, who takes possession, and retains it for thirty years ! And wiiat is stranger still, if any thing can be, the same doctrine must, until tiie act of 1792, (Rev. c. 363,) have been applied to parol sales; for gifts and sales were put upon the same footing. Yet such is tiie law, as it hath been too often adjudged for u^now to deny. Without mentioning other cases, it will be sufficient to cite tiie remarkable and leading ones of Knight & ux. v. Thomas, (1 Hay. 289,) and Sherman v. Russel. (1 N. C. Law Repos. 467.) However erroneous the original construction may appear to our minds, at this day, it is too thoroughly settled to be disturbed. I am firmly convinced, that it was palpably erroneous. But I subdue myself into a practical obedience to the authority of a long train of the decisions of my predecessors, although my own understanding rejects the reasoning upon which they are founded, and I see them now productive of evils, which were not, and probably could not have been foreseen. The Court below was bound to lay down the law as it did, and this Court is bound to follow. And the act of 1820 (Rev. c. 1055,) does not alter it. Probably the proviso was pointed solely at the . act of 1806, and intended to prevent possessions, under gifts absolutely void, from ripening into title. But it is more extensive, and embraces “ the law then in force, which required all gifts of slaves to be in writing.” So that as to those against whom, by any law, a parol gift was invalid, a possession under it remained inoperative, by the express words of the act of 1820.

Per Curiam. — Let the judgment below be affirmed-.