#### WILLIAM G. FREEMAN vs. DAVID M. LEWIS.

A vendor of a personal chattel is an incompetent witness to prove title in his vendee, because in every sale there is an implied warranty of title, if be no contract to the contrary. But he becomes competent upon receiving from the vendee a release of his liability.

A seal of a court is essential to the validity of a commission to take testimony, directed to persons out oí the county, from the court at which it issues.

A mortgagee, for a valuable consideration, is to be considered a purchaser under our statute against fraudulent conveyances.

The cases of Goodman v. Amistead, 4 Hawks, 19. Seawell v* Ban),'c of Cape Fear, 3 Dev. 279. Findley v. Smith, 4 Dev. 95; and Duncan v. Hill, 2 Dev. & Bat. 293, cited and approved.

Appeal from the Superior Court of Law of Franklin County, at the Fall Term, 1844, his Honor Judge Caldwell presiding.

This was an action of detinue brought to recover the possession of five slaves. The plaintiff, in support of his title, produced and duly proved a deed of mortgage for the said slaves (or their maternal ancestors,) from William Green, dated the 16th of August, 1820, and duly registered, by which the slaves were conveyed for the consideration of $784 46 cents, to the plaintiff, on condition, nevertheless, “ that if the said William Green should pay to the plaintiff the sum of seven hundred and eighty-four dollars and forty-six cents, on or before the 25th day of December next, with lawful interest for the same for redemption of the said slaves, then this bill of sale to be void — otherwise to remain in full force and virtue.” He also proved the possession of the slaves by the defendant, previous to the issuing of the writ. The defendant claimed title under a purchase from James Green, and alleged that the negro woman, from whom these slaves had since descended, was given to the said James Green by his father, the said William, by parol, prior to the act of 1806, prohibiting parol gifts of slaves. To prove this allegation, he offered *92the said James Green, whom he had released from all liability ^'m> as a witness. The testimony of the witness was objected to. by the counsel for the plaintiff, on the ground, that, he could not be a witness to prove a parol gift to himself. This objection was overruled. This witness proved, that, prior to the year 1806, his father, William Green, the maker of the deed of mortgage above mentioned, gave him the slave Hannah, from whom the slaves, claimed by the plaintiff)' are descended, and he took possession of Hannah— that about the year 1805, he left this part of the State, resided in Randolph and Montgomery counties, leaving Hannah in the possession of his father, and did’ not return until the year 1818' — that he then lived on a plantation near his father, and resumed the possession of Hannah. He further stated, that in the year 1818, or 1819, he sold one of Hannah’s children in Georgia, in the presence of his father — that they both lived there a short time, and then returned to the county of Franklin, where he sold another of Hannah’s children with his father’s knowledge, and that he has since sold the negroes sued for to the defendant. The defendant then proved by several witnesses, that, in 1806, and up to 1810, they heard the said William Green say, the negro woman Hannah, was the property of the said James Green, and that he had given her to James, when she was a small girl. The plaintiff' then proved by his mother, that he was born on the 4th of November, 1819, and that the said negro Hannah and her children, after the execution of the deed to the plaintiff, came into the possession of the father of the plaintiff, where he resided, and remained in his possession about one year, and that they were then taken off by some person unknown to her. The defendant then offered in evidence the deposition of Nathaniel Hunt, a non resident, which was shewn to have been taken under a commission signed by the clerk, but without the seal of the court affixed. The plaintiff objected to the reading of the deposition, because the seal, of the court was not affixed to the commission. The court overruled the objection, and decided that, although there was n,® seal to the commission, *93and the deposition was taken in another State, yet it might be read. It was proven by this deposition, that William Green admitted to the deponent, that he had given the said negro Hannah to his son James Green, when a small girl, and said that James was a very imprudent man, and that many efforts had been made to sell her by his creditors, on which occasions he had always interposed his own claims, and thus prevented a sale. The plaintiff offered no evidence of the payment of any part of the consideration money mentioned in his deed, nor of any debt owing by William Green to him, or to any one for his use; but the subscribing witness swore, that William Green said, at the time of executing the paper, he intended it as a gift to his grand-son, the present plaintiff.

It was insisted, on the part of the plaintiff, that the parol gift before 1806, if any was made to James Green by his father, was not sufficiently proven as a gift at common law, because there was no proof, in the manner and form requisite at common law, of an actual gift and delivery of the negro Hannah. Secondly, it was contended, that, even admitting the parol gift to have been sufficiently proven, the plaintiff was still entitled to recover, because, by the deed from William Green to him, he was a purchaser, and, as against him, the parol gift was inoperative and void. His Honor declined to give these instructions, but charged the jury, that a mortgagee was not such a purchaser as would avoid a parol gift of slaves, made prior to the year 1806 — that a mortgagee was, in point of law, so far as this case was concerned, not a purchaser, but an incumbrancer — and the question at last was, whether a valid gift had been made by William Green to James Green, prior to the passage of the act of 1806 — that if such gift was made prior to that time, the defendant was entitled to a verdict — if no such gift had been made, the plaintiff was entitled to a verdict.

The plaintiff' thereupon submitted to a non-suit, and moved for a new trial, which was refused, and judgment entered for the defendant for his costs, &c. The plaintiff then appealed to the Supreme Court.

*94 Q, W. Haywood for the plaintiff.

Saunders and Badger for the defendant,

contended, that although one who takes a mortgage at the time of advancing money or giving credit, is, in law, a purchaser for valuable consideration, yet the judge was right in holding that the plaintiff was not such a purchaser: for

First, The consideration alleged was unproved, the recital in the deed not being evidence against the defendant, who was not party or privy, but an entire stranger to the instrument. Clayton v. Me Gimpsey, 4 Dev. 89. Hoyatt v. Phifer, idem. 273.

¡Secondly — The consideration was disproved., by the declaration of the grantor, that he intended a gift, and by the fact that the grantee was an infant, less than a year old, when the deed was made.

Nash, J.

The defendant claims the negroes in dispute by purchase from James Green. In order to make out his title, he offered James Green as a witness, having previously released him from all claim in consequence of the sale. The introduction of this witness was opposed upon the ground, that, although released, he was incompetent to prove a gift to himself. The objection was correctly overruled by the court. Upon his examination, Green proved that, prior to the year 1806, his father, William Green, from whom also the plaintiff claimed title, had given him a negro woman named Hannah, whom he had taken into his possession, and from her the ne-groes now in dispute had since descended, and that he had sold them to the defendant. A vendor, is, in general, an incompetent witness to support the title of his vendee, for the reason that he is directly interested in so doing. In every sale of a personal chattel, the law implies a warranty of title, unless it is agreed to the contrary by the parties in the contract, or there is an express warranty of some other kind. Upon a defect of title therefore, if his vendee for that cause loses the chattel, he is bound to make compensation in damages. His interest therefore is direct and positive, and he is *95incompetent as a witness for the defendant to support the title, but his incompetency lasts no longer than his interest endures, and a release removes his interest. The relation in which this witness stood to the case, and his importance to the plaintiff, rendered it necessary to the plaintiff to sustain and prop his testimony. With that view, the deposition of one Nathaniel Hunt was offered in evidence. Its introduction was opposed by the plaintiff, on the ground that the commission was not under the seal of the court from which it issued, and that it was to be executed in another State. The objection was overruled by the court, and.the deposition was read. In this opinion of his Honor, we think there was error. By the common law, the seal of the court is a necessary and essential part of every writ. In England, the original is a mandatory letter from the King in parchment, issuing out of chancery, and sealed with, the great seal, and directed to the sheriff of the county wherein the injury was committed or supposed to be. 3 Bl. C. 273. That the seal has ever been considered a necessary part of the writ in this State, is evident from the act of 1797. By that act it is provided, “ that in all cases where the clerk of a County or Superior Court issue process, to the county of which he is clerk, it shall not be necessary for him to affix the seal of his office thereto.” Rev. Stat. ch. 31, sec. 125. From the phraseology of this act, it is evident.the law was at that time considered settled, that the seal of the court was deemed necessary to any process issued by the clerk. The only effect the act had, or was intended to have was, to make the writ valid when to be executed within the county from the court of which it issued. The legislature might well suppose it unnecessary to require the writ to be authenticated by the seal in the latter instance, as the officers of the court would be known officially to the citizens of the county, when beyond its limits they would not, and their official acts could be recognized only when evidenced by the seal of the court whose officers they were. Every writ, therefore, issuing from a court of record, which is to be executed without or beyond the limits of the county in which it issued, in order *96to its validity, must be evidenced by the seal of the court. Goodman v. Armistead, 4 Hawks, 19. Seawell v. Bank of Cape Fear, 3 Dev. 279, and Findlay v. Smith, 4 Dev. 95. otherwise, it confers no power to act, upon any one. A Ded-imus potestatem, is within the words of the act of ’97, and within the equity of it. See Duncan v. Hill, 2 Dev. &. Bat. 293. The witness, Hunt, if he had sworn falsely, could not have been convicted of perjury, because the deposition was not to be taken within the county of Franklin, and not being under seal it conferred no authority on any one to act under it. The judge therefore erred in suffering the deposition to be read in evidence. It might have been very material to the support of the defendant’s case, if it had gone to the jury in propping and sustaining the evidence of James Green, his material witness. For though there were other witnesses, who testified to similar declarations of William Green, they may not have been as well known to the jury as Mr. Hunt, or being known, not entitled to equal weight with him. We cannot tell. There was error in the opinion, and there must be a new trial. The plaintiff claimed the negroes in dispute by virtue of a conveyance from William Green to him, subsequent to the alleged gift to James Green. The deed to him was a mortgage of the negroes for value expressed in the face thereof. The judge was requested to charge the jury, that the plaintiff was a purchaser, and therefore entitled to hold the negroes against a prior gift. The judge refused so to charge, but told the jury, that a mortgage in point of law, so far as this case was concerned, was not a purchase. We do not concur with his Honor in this opinion. A mortgage is a purchase under the statute of the 27th Elizabeth. Chapman v. Emery, Cowper, 279, and in Roe v. Hutton, 2 Wilson, 356. The court declare that under that statute, those are considered purchasers, who take under instruments made for a valuable consideration. Whether the plaintiff was in this case a purchaser for valuable consideration or not, is not now under our consideration.

*97We concur with his Honor, that the facts disclosed in the case constituted a gift to James Green, if true.

For the error in the admission of the deposition of Nathaniel Hunt, there must be a new trial.

Per Curiam, The judgment of the Superior Court is reversed, and a venire de novo ordered„