#### Mary Choat v. John Wright,

From Surry.

June, 1830.

Executed contracts are not within the act of 1819, relating to contracts for the sale of lands and slaves. (Rev. c. 1016.)

A sale of a slave accompanied by a delivery is valid, and transfers the title, notwithstanding no bill of sale is executed, nor any memorandum of the contract signed by the parties thereto.

Trover for a slave, and on the. trial before Daotee Judge, the Defendant, under the gpneral issue, gave in evidence, that an execution against one Isham Choat, came to his hands as Sheriff of Surry, under which he seized the slave, and the only question was, whether the Defendant in that execution had a title to the slave.

On the evidence, it appeared that the slave, had been the property of one Syberi Choat, and w as by the Plaintiff, as his executrix, set up at public auction, and stricken off to Isham Shoat at 600 dollars; that the slave was delivered to the vendee, but no bill of sale, nor any memorandum of the sale in writing, was executed by the Plaintiff. .

His Honor charged the Jury, that the sale of a slave, accompanied with delivery of possession, passed the title, notwithstanding the act of 1819 (Rev. c. 1016). A verdict was returned for the Defendant, and the Plaintiff appealed. .

No Counsel appeared for the Plaintiff.

Deveveux, for the Defendant,

cited Chaplin v. Rogers (1 East 192) and Searle v. Keeves (2 Esp. R. 598).

Ruffin, Judge.

We should lend a ready ear to any plausible argument, tending to prove that this ca.se is within the statute of frauds. (Jlctof 1819, Reo. c. 1016): For we feel, that all the mischiefs are as apt to arise out of executed, as executory contracts. But the words are too strong and plain to be got over. We think it extremely probable, that the draughtsman considered, when *290jie put lands and slaves on the same footing, that he re-qaired all contracts respecting each to be in writing. If he did, it was a great mistake. However the words of ^le act might be construed, if applied to slaves alone, they cannot embrace executed contracts, when applied to both. The act says, that “ all contracrs, to sell or convey lands or slaves, shall be void and of no effect, unless such contractor some memorandum, or note thereof, bo put in writing, and signed by the party charged; except contracts for leases not exceeding three years.” The question is, what sort of contracts is here meant? Certainly, only such a contract, respecting slaves, is within the act, as would also be within it, if it respected land j for the two subjects are placed side by side. It is perfectly clear, that executory contracts alone can be meant, when land is the subject. For before that time, a conveyance of freehold land could be by deed only, and it is absurd to talk about “ a note or memorandum in writing,” as a thing that can pass such lands. In relation therefore to realty, not only the words of the act, “ a contract to sell,” but the state of the law before, restrains the statute to executory contracts, This ties us down, against our wills, to the same construction as regards slaves. Therefore, a sale of slaves by parol, that would have been good before the statute, is still good.

We arc aware of the great inconveniences that will, arise from this construction ; and that has made us very reluctant to adopt it. For the same fraud and perjury will be practised in the dispute, whether the contract was one “ to sell,” or “ of sale,” as in ascertaining the particular terms of a contract to sell; and thus all the benefits intended by the Legislature be defeated. But the framing of the act compels us to pronounce the judgment wc do.

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