Morgan v. Smith, Wykoff & Nicholl

[DETINUE'FOR SLAVE — DELIVERY OF BILL OF SALE.] 1. Title passes by delivery of bill of sale. — The delivery of a hill of sale to the purchaser of a slave, of itself, passes the title to him; and the vendor, when sued by a sub-purchaser, cannot avoid the effect of it, by proof of a parol agreement that the delivery was conditional, and that the title was to revest in him in the event the purchaser failed to give his note, with a specified surety, for the purchase money. (Rice, O. J., dissenting, held, that the question of delivery vel non involved the consideration of the parties’ intention, which was a question of fact for the determination of the jury, and which the evidence did not authorize the court to assume without hypothesis; and that contemporaneous oral declarations of intention, relating to the execution, as contra-distinguished from the construction of the instrument, were admissible as part of the res gestae.)

Appeal from tbe Circuit Court of Autauga. Tried before tbe Hon. Andrew B. Moore. This action was brought by the appellees, suing as partners, against Isaac C. Morgan, to recover a negro man, named Phil, together with damages for his detention. The defendant pleaded, “ that he is not guilty of the matter alleged in the complaint, and that the slave sued for is his property.” The bill of exceptions is as follows : “ On the trial, the plaintiffs introduced evidence, showing that the slave sued for was in their possession a short time before the bringing of this suit, and that they obtained said slave from one Barnabas Strickland, who sold him to them, and executed to them a bill of sale, of which the following is a copy : ‘ Received, Dallas county, Ala., May 7, 1852, from Messrs. Smith, Wickoff & Nicboll, $800, payment in full for my negro man, named Phil, aged about thirty, years. The said negro I warrant sound in body and mind', a slave forlife, and free from all claim or claims whatever/ (signed by said Strickland.) The plaintiffs proved, also, that said Strickland, at the time of the execution of said bill of sale, was indebted to them on account; that the account which they Lad against him was credited, at the time of the execution of the bill of sale, with the sum of $800 ; that said slave was received by them in payment of $800 of said Strickland's indebtedness to them ; that said Strickland, at the time he sold said slave to them, had said slave in his possession, and also a bill; of sale, signed by the defendant, conveying said slave to said Strickland unconditionally; that said bill of sale, signed by the defendant, was dated a short time before said slave was sold by Strickland to plaintiffs, and was delivered by him to them. It was admitted that said slave was in .the possession of the defendant at the time this suit was brought. The plaintiffs then proved the .value of said slave, and the value of his annual hire.” The defendant offered ’in evidence the deposition of said Strickland, who testified as follows : “ Witness made a contract with defendant about said slave about the first of May, 1852 ; and the contract was as follows : Witness bought said slave from defendant, and was to give defendant $800 for him, to become due on the first of January, 1852, with John A. Jones for security for the payment of said sum. The terms upon which defendant agreed to sell witness said slave, are these : That if witness would give him $800, with said John A. Jones for security for the payment of the same, witness could have the slave. But witness did not comply with the terms upon which defendant agreed to sell him said slave ; for said Jones, after promising witness to stand his security to defendant for said slave, afterwards refused to do so. Witness received from defendant a bill of sale for said slave, with the understanding and agreement above expressed. The bill of sale was the only paper, that passed between him and defendant, in relation to said slave. It contained what is generally contained in a common bill of sale to negroes ; and he does not recollect its - contents any further. The defendant delivered said slave .to witness,- upon the understanding that the contract above stated was to be fulfilled by witness. Witness sold said slave, to the best of his knowledge, on the same day he received him from defendant.” (Answers to eross-interrogaties:) “ Witness delivered said slave to it. R. Nicholl, one of the plaintiffs, with the marginal price of $800, to be sold by them, and, if said slave brought more than that sum, it was to be allowed or paid to witness, on the claim "which'plaintiffs then held against him. No final settlement has been had between the parties in said transaction. Witness had the possession and control of the slave at the time of said transaction. Witness had said slave from defendant, with'his knowledge and consent, under the terms above expressed. Defendant made witness a bill of sale for said slave, as above stated; and witness, as well as he can recollect, either transferred or delivered the same to said R. R. Nicholl. Witness also made to said R. R. Nicholl, or to the said firm, a bill of sale to said slave.” “ It was admitted that' said Strickland had never paid defendant anything for said slave.” “ This was all the testimony in the case ; and upon these facts, the court charged the jury, that if they believed the whole evidence, they must find for the plaintiffs, and assess the value óf the'slave, and of his hire from the commencement of the suit”; to which charge the defendant excepted. The defendant requested the court to instruct the jury, “ That if they believed from the evidence that the defendant was the owner of the slave sued for, and, while he was such owner, agreed to sell said slave to Strickland, at the price of $800, to be paid ’on - the first of January, 1858 ; and that Strickland was to give one John A. Jones as surety for the payment of the'purchase money ; and that said slave, with the bill of sale made by defendant to Strickland, was delivered to Strickland on' those conditions ; and that Strickland did not give said Jones as surety for the payment of the money, and n'ever-lms paid the purchase money in any way, — then Strickland did not acquire any title to said slave ; and if he afterwards sold said slave to plaintiffs, in payment of a debt due by him to them, then the defendant has the better title to said slave.” The- court refused to give this charge, and the defendant excepted. The charge given, and the refusal to give the charge asked, are now assigned as error.