#### JOHN DAVIS v. WILLIAM H. BOYD.

Where slaves had been bailed by a father-in-law living in Virginia, to his son-in-law living in this State, more words of gift, afterwards used, in the absence of the slaves, were Held not to be sufficient to pass the property ; delivery being essential to the validity of a gift.

Where slaves were put into the hands of a son-in-law by his father-in-law, under a written agreement that they were to be a loan, a subsequent written contract, under seal, in which the bailor agrees and binds himself to surrender all right and title, &c., and binds himself to sign any paper-writing that may be necessary, to secure such title as viill be valid agreeably to the laws of Horth Carolina, was Held not to operate as a conveyance of a present interest, but only as an agreement to make title in future.

Action of detinue, tried before Saundees, J., at the last Spring'term of Granville Superior Court, for the-detention of six slaves.

The defendant, on the day of February, 1848, married Susan, the daughter of the plaintiff, at her father’s residence, in the county of Mechlenberg, in the State of Virginia. On the 23d of October, 1848, the following paper-writing was signed by the parties, respective, and left in the possession of the plaintiff, to wit:

“I lend to my daughter, Susan S. Boyd, the following ne-groes, Minerva, Lavinia, Betty and child Dilcy, subject to my control during my lifetime, or to give or loan by my will at my death.

Given under my hand, the 23d day of October, 1848.

(Signed,) J oiin Davis, Senr.”

“I, "William II. Boyd, receive and hold said negroes, upon’ the above condition. (Signed,) Wm. II. Boyd.”

*250It was admitted on the trial, that the slaves in question .were the property of the plaintiff at the time of the marriage ; also, that Mrs. Boyd died in Octobor, 185é, and that the plaintiff demanded the property in 1855.

The defendant produced and proved the following instrument, which he insisted is a conveyance of the slaves in question :

“MkcKleNbueg, Ya., November, 1854.”

“This paper is to acknowledge that I hereby agree and bind myself to surrender to "William II. Boyd, all right and title I hold to the following slaves, ITenry, Minerva and children, Isaac, Betsy, Martha, and Bettie and daughter I)ilcy, and in furtherance of this, (prompted by respect I have to said William TI. Boyd,) I bind myself to sign any paper-writing that may be necessary to secure to the said William II. Boyd such title as will be valid — a good one — agreeable to the laws of North Carolina.

Given under my hand, (the day and date above written.)

JoiiN Davis, Senr. [Seal.']

Witness, John Davis, Jr.

The defendant proved that, at the same time and place, he executed and delivered to the plaintiff the following instrument, viz.:

“ MeKlidNbubg, Ya., November 14th, 1854.

“I, Y/Illiam II. Boyd, do herein surrender all right, title and interest in a negro girl, Lavinia, and child, Granderson, she being considered a loan to my late wife by her father and mother.

Given under my hand and seal.

“W. H. Boyd. [Seat]

Witness, John Davis, Jr.

The defendant also produced and proved the execution and delivery of a deed of gift from himself to Andrew J. Davis, a son the plaintiff, for one of the slaves, dated on the same day with these other two papers, attested by the plaintiff as a subscribing witness — mostly in his hand writing.

*251EL. G. Boyd, a witness for the defendant, stated, in bis deposition that he was present at the marriage; that immediately after that event, the plaintiff put into the possession of the defendant a set of chamber furniture, and a woman by the name of Minerva; that this property was delivered inVirginia, in the Eall of 1848, or early in 1849; that Davis also delivered to his son-in-law, in the State of Tirginia, four other slaves, to-wit: a man, Henry, an old woman, Betty, a girl, Dilcy, and a girl, Lavinia, who were all brought into the State of North Carolina, and have all, since that time, been in the possession of the defendant., except Lavinia, who was returned to the plaintiff, and who lias been in his possession for some fifteen months; that about February, 1855, lie (witness,) visited the plaintiff, and in a conversation with him about the slaves now in controversy, he, (plaintiff,) said he had given his son-in-law, W. II. Boyd, the negroes, Minerva and children, the man Henry, Betty and Dilcy; that he had made him a good title, as he thought; and, in addition to that, he had made his will, and in that instrument had stated that this property was given to W. II. Boyd; that neither the woman, Betty, girl,.Dilcy, Lavinia, or Minerva had any children when they were delivered to Boyd.

Bartlett Crowder: In his deposition, states that, in a conversation which he had with plaintiff about the marriage of his daughter; he told witness that he had given to his son-in-law, IV. II. Boyd, five negroes, and amongst these he mentioned Lavinia, whom he said he had bought, with her mother, at the price of $1000. The witness says that this conversation took place in 1853.

T. Kvn.g, a witness for the plaintiff, in his deposition states, that he heard the plaintiff say, in 1852 or 1853, that Mr. Boyd, with what he had given him, and what his father had given him, was accumulating very fast; that he had never heard of the plaintiff’s giving the defendant any property, except the negroes, Betty, Minerva, Henry and Dilcy.

James Grady testified that Davis, the plaintiff, said to him that he had told his attorney in Ya. that at the time when he exe*252cuted the writing, dated November 14th, 1854, he'was sincere in it, as he ever was in any thing in his life, and then intended that Boyd should have the negroes, hut that if the paper did not pass the title of the negroes, he did not wish him to have them, as circumstances had changed since he had executed the instrument. In that conversation he referred to the paper as a deed of gift. The witness also stated that in 1855, as the slave, Lavinia, was passing, the plaintiff remarked that Boyd had offered him $1500 for her, and he did not know why he wanted her, as lie had given him a girl, named Minerva, worth two of her, but he supposed he wanted her because she was a good house-keeper.

The plaintiff then called witnesses who testified that in 1850, liis daughter, Mrs. Boyd, told him that the loan paper had caused her a good deal of domestic trouble, and she wished he would give it up, and he replied, that if it would promote her peace he would give it up, but would not make title to the said slaves, unless her health improved; that if she outlived her husband, she would get them by his will; and handed her the paper; that on the 14th of November, 1844, when the papers of that date were executed, the defendant said to the plaintiff that it was the wish of his deceased wife that he should give the boy, Armstead, to plaintiff’s youngest son, Andrew; to which plaintiff replied that he knew she so desired, and he intended to give the boy to Andrew, but that if it would be any gratification to him, (defendant,) he might make the gift himself. The plaintiff also introduced the depositions of two gentlemen of the legal profession in Virginia, to show that the instrument of the date of 14th of November, 1854, was, by the law of that State, wholly void.

The Court being of opinion that the instrument bearing date of the 14th of November, 1854, conveyed no title to the defendant, and that the evidence did not furnish a ground to infer a parol gift of the slaves in question, so instructed the julT-

The defendant’s counsel excepted.

*253Yerdict for the plaintiff. Judgment, and appeal by the defendant.

Graham, and Beade, for the plaintiff.

Eaton and Lanier, for the defendant.

EuRFirr, J.

Assuming that a parol gift of slaves may be made in Virginia, and that such a gift may be presumed there, when a parent, on the marriage of his daughter, delivered to her husband slaves, which he carries home and keeps, yet that presumption is conclusively rebutted in this case by the papers which the parties executed on the 23d of October, 1848, bv which it is declared that the defendant held the ne-groes as a bailee by loan. Indeed, the parties acted on that idea in all the subsequent transactions between them, and in no part of them more than in the execution of the instrument of the 14th of November, 1854, which the defendant insists upon as a conveyance from the plaintiff to him. It was argued, however, for the defendant, that the giving up the instruments declaring the loan, destroyed their operation, and left the case as if they had never existed. But that cannot be, for, the fact that it -was, at first, a lending cannot cease to exist, and the utmost the surrender can imply is, that there might have then been a gift. But to such an implication there are insuperable obstacles in other circumstances. In the first, such a new gift must gave been made either in Virginia or North Carolina, and it appears that in neither could a valid gift have been executed. The slaves were in North Carolina all the time, according to the testimony, and a con-" veyanee of them was to operate on them in this State, and, therefore, according to the general principle, should be in conformity to the law of North Carolina, the lex situs, which could only be by writing. But supposing that otherwise, and that by a parol gift in Virginia the title might have passed, yet no such gift can be found upon any facts stated in this case; because there was no delivery, which is essential to a valid oral gift of a personal chattel at common law. Simply, *254words of gift, without an actual transmutation of possession, will not answer. Adams v. Hayes, 2 Ired. Rep., 361. And there could have been no such transfer of possession, as the defendant already had the possession of the slaves in North Carolina. The declarations of the plaintiff to A. G-. Boyd, that he had given the negroes to the defendant, and “had made him a good title to them, as he thought,” are not, for those reasons, sufficient to establish such a gift; and, besides, they obviously refer to the writings of November, 1854. The same observations apply to the testimony of the other witnesses. So the instruction that a parol gift could not be inferred from the evidence, appears to the Coui’t to be correct.

The question, then, is upon the instrument of November, 1854. A point was made at the bar, that, although it might not be a good deed in Virginia, by reason that the body of the writing did notrecognize the scroll as the seal of the maker, yet it might be a good deed here, where it was to have its effect. In the view taken of the construction of the instrument, it is not necessary to discuss that point; for, after much research and consideration, the Court is obliged to hold, that, supposing it to be under seal, it is not a conveyance, but a covenant. It is not easy, at all times, to give a character in that respect to all instruments, and it is frequently determined upon the supposed intention of the parties or the convenience of the one construction or the other. Thus, a covenant, in point of form, not to sue an obligor in a bond, where he is the solo obligor, is held to be a release. But that is evidently not on the words of the instrument, but upon the end in view, and to "avoid circuity of action, and thus give to the instrument its most beneficial operation as to both parties ; for, a similar contract with one of two obligors is held not to be a release, but a mere covenant, since the release of one would be the release of both, which was not intended. So, in respect to leases, many questions of the sort have arisen. And as a lease is but a contract for the possession of land and the possession of one who enters under another, ought to be sustained as a subsisting estate, if possible, the court leans, in cases of that kind, *255to treat the instruments between 'the parties as vesting an estate and not as articles merely. Hence, when the word “grant,” or “hold,” or “have,” or the like are used, the agreements have been supported as leases ; and if there be a subsequent clause for the future execution of a formal lease, it will not change the character of the instrument, but the added clause is considered an engagement for further assurance, or to provide for a duly settled lease with the usual covenants for payment of rent, for repairs, and against waste, and the like. The Court would gladly apply that principle to this instrument, if there were words in any part of it to support it. But there are no terms in it purporting to-pass a present interest, so as to found an argument, that the latter clause binding the plaintiff to execute afterwards such a paper as would secure a good title to the defendant according to the law of the State, is birt an agreement for further assurance. For, in the beginning, the instrument does not profess to surrender, then, the title to the defendant, but the plaintiff agrees only to “surrender” the title, and to show more’distinctly the nature of the instrument, the plaintiff “ binds ” himself to make the surrender. From this language it can only be inferred, whatever the future purpose of the plaintiff then was as to a benefaction to the defendant, that he did not, in that instrument convey the slaves, but only contracted to do so. There is nothing in the nature of the transaction to enable the Court to interpret the instrument, by any aid but its own language, and taking that throughout, it seems to the Court to be but an executory agreement.

Pee. Cceiam, Judgment affirmed.