#### JOAB B. COX et al ex’rs v. WHITE D. HUMPHREY.

Where a father gave to his children by parol, certain slaves, acquired by his marriage with their mother, and was present at a division of the slaves among them, upon which occasion one, who had a more valuable share, paid money to others, who had a less valuable one, it was Held that the transaction was still a bailment, and not a sale and delivery as to any of the children, and that after the father’s death, his executors could recover the slaves.

Action of trovee, tried before Heath, J., at the last Eall Term of Sampson Superior Court.

The action was brought by the executors of Moses Cox, in behalf of legatees, for the conversion, after his death, of a woman named Sylvia, and her four children. This woman was the daughter of a woman named Mourning, who, together with other slaves, had been conveyed in 1817, by a deed from Joab Blackburn to the wife of Moses Cox. He, (Moses Cox,) liad owned these slaves for rnanj' years, and in 1851, there was a division of all the slaves, which Blackburn had conveyed to Mrs. Cox, among the children -of Moses Cox, he and the said children all being present, and in that division, Sylvia and her children, then born, were allotted to one Ellis, who had married the daughter of Moses Cox, who paid some money to others of the children, and gave his note for some more to make their lots equal, but what these snms amounted was to, not remembered by the witnesses. One Benton, who had married another daughter of Moses Cox, testified, for the defendent, that he was at the division, and that Moses Cox told him he intended to get Mr. Winslow, a lawyer, to draw a release of his title to the slaves.; that about a month after the division, Ellis, with the consent of Moses, took possession of Sylvia and her children, and carried them to Onslow county, where he resided.

In May, 1855, Ellis-conveyed the slaves in questiofi,

Ward, in trust, to secure certain debts, but still re^^iiped in possession of them until March 1857, when he, an/ji Waroft^e.-y trustee, jointly conveyed them to the defendant, fibiy-the conv *406sidoration of $2,600; and the latter took them into his possession. In the May following, Moses Cox died, having made his last will and testament, wherein the plaintiffs were appointed the executors, and the slaves in question given to other persons. The probate of this will, the qualification of the executors, and a demand by them for the slaves in question before the bringing of this suit, and the refusal of the defendant to surrender them, were all properly proved.

Mr. Wvuslow, an attorney of the court, testified that Moses Cox had conversed with him about the negroes, which Blackburn had conveyed to his wife, and said they ought to go to his children, and he wished papers drawn to that, effect, but that the witness never drew such instruments; that in 1851, or 1852, he received from Moses Cox the following paper-writing, viz : “ Know all men whom it may concern, that I, the said Moses Cox, has an interest in some personal and real estate that was given by deeds and verbally to my deceased wife, Betsy Ann Cox, by her deceased grand-father, Joab Blackburn, of the State and county aforesaid. How, as things may be fairly understood by me, the undersigned, I relinquish all my claim, title, interest in real and personal estate, that is in my possession, both personal and real estate, and all that are ont of my possession, to the lawful representatives of my deceased wife, Betsy Arm Cox, as witness my hand and seal, this 6th day of November, 1851.

Signed. Moses Cox, {seal.~}”

“ N. B. This instrument I wish tobe given to my son, Joab P>. Cox, or some one of my sons. M. C.”

The defendant offered to prove the signature of the paper to he that of Moses Oox, but it being unregistered, and without any subscribing witiress, his Honor refused to receive it in evidence, or to let the signature be proved. He also refused to make an order for its registration. For this ruling, the defendant’s counsel excepted.

Ward testified, that he came to Sampson in 1856, to en-quire about the title to these slaves, when he was informed by Joab Cox, one of the plaintiffs, that Ellis’ title was good; *407that there had been a division of the slaves in 1851, and there was a written statement of the division which he had seen, and which he believed was in the possession of Uz W. Cox, the other plaintiff.

It was also in evidence, (which was not objected to) that Ellis had said, that Moses Cox once offered to give him a release for the slaves, but he was fool enough not to take it, and that he never would be such a fool again.

His Honor charged the jury, that the evidence, if believed, showed the ordinary case of a parol gift of slaves which, in law, constituted a bailment; that there was no evidence of the bailment having determined, and the possession become adverse three years before the commencement of the action, and if they should find that there had been a conversion of the slaves, the plaintiffs were entitled to a verdict. Defendant again excepted.

Yerdict for the plaintiffs. Judgment and appeal.

Fowle, for the plaintiffs.

Badger, for the defendant.

Peaesoiv, C. J.

Was there a gift, or a sale and delivery of the slaves ? That is the question. A father says to his children, “ These slaves came by your deceased mother, take them and divide them among yourselves.” Accordingly, a division among the children is forthwith made in the presence of the father, and for equality of partition, one of the children pays certain amounts of money to the others: but for the act of 1806, which requires gifts of slaves to be in writing, attested by a subscribing witness, it would never have entered into the head of any man to conceive that this amounted to any thing more than a gift by a father to his children ; and in spite of the statute, ingenuity itself is unable to suggest a plausible ground, in support of the position, that it was a sale and delivery.

Did the father intend to sell ? Did he receive a valuable consideration ? The child who was taxed with some amount for equality, had the most valuable share, and. the amounts *408paid to the other children was by way of compensation (as distingushed from a price paid) to make the division equal. Before the division, it was certainly a mere gift. Can the fact, that the children happened to make a division, according to which, one, whose share was the most valuable, paid money to the others, to make the value equal, convert the original act of the father into a sale and delivery by him? The children who received money, as well as a share of the slaves, certainly were not purchasers. Can it be a gift as to them, and a sale and delivery in respect to the one who received the most valuable share ?

It was said, “ if the transfer of the slaves be void, this child will be money out of pocket.” That is true; but he may recover it back from the other children, because of a total failure of consideration between him and them, and it, in no wise affects the father, to whom the fact, whether there was, or was not a division, and the manner thereof, was wholly indifferent. The truth is, the act of 1806, bears hard upon the defendant, who has honestly paid a fair price for the slaves in controversy, and the effort made to take this case out of its operation, and the disposition, on the part of the Court, to do so, if possible, proves the truth of the saying that, “hard cases are the quicksands of the law.”

To the comments upon the policy of the act of 1806, made by the counsel of the defendant, it may be proper to reply; although in this, and in many other instances, a father is enabled, by revoking a parol gift of slaves, to defeat the claims of honest creditors, and defraud purchasers, for value, from their children and sons-in-law, where the necessary caution in respect to an examination into the title has not been observed, still it is a wise choice between two evils ; for no man can imagine the extent of the mischief, in respect to perjury and fraud, and the wnaertainty of title in regard to this most valuable species of property, which is protected by the act.

The exception, as to the deed of November 1851, was not relied on. There is no error.

Pjee CuRiam, Judgment affirmed.