Opinion · Nclaw North Carolina

WHITAKER v. WHITAKER, 12 N.C. 310 (1827)

MATTHEW WHITAKER, Adm’r, Adm’x of LEVI H. McLEAN, v.CARY WHITAKER, Ex’[r, x] of WILLIAM TAYLOR., 12 N.C. 310 (N.C. 1827)

Type: Opinion
Court: Nclaw North Carolina
Jurisdiction: Nclaw
Date: 1827-01-01
Topic: general

WHITAKER v. WHITAKER, 12 N.C. 310 (1827) MATTHEW WHITAKER, administrator of LEVI H. McLEAN, v.CARY WHITAKER, executor of WILLIAM TAYLOR.Supreme Court of North Carolina December Term, 1827. From Halifax. A slave hired out is a chose in the possession of the owner.

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WHITAKERv. WHITAKER,12 N.C. 310(1827)

MATTHEW WHITAKER, administrator of LEVI H. McLEAN, v.

CARY WHITAKER, executor of WILLIAM TAYLOR.

Supreme Court of North Carolina

December Term, 1827.

From Halifax.

A slave hired out is achosein the possession of the owner. Therefore, when the slave of afeme solewas, before her marriage, hired for a year, and the husband died during the term, the property does not survive to the wife, but vests in the personal representative of her husband.

DETINUE for a negro, and on the trial the jury found specially the following facts: The slave in question was the property of Elizabeth Whitaker, and was by her hired out for the year 1825, she being of full age and unmarried. During the term Elizabeth intermarried with the defendant's testator, who diedPage 197before its expiration. At the end of 1825 the slave came into possession of the widow, the former owner, who agreed with the defendant to pay hire for it, if in law it belonged to him. Elizabeth, the widow, was in possession of the slave under this agreement until she intermarried with the plaintiff's (311) intestate, who continued it until his death, when the defendant took the slave into his possession, claiming as executor of Taylor.

Upon this verdict, his Honor,Judge Daniel, gave judgment for the plaintiff, and the defendant appealed.

No counsel for either party.

HENDERSON, J.

This case depends upon the effect which a contract of hiring has upon the possession. If it divests the owner of the possession and places it in the person hiring, the thing hired ceases to be achosein possession, and becomes achosein action, and therefore does not pass absolutely, butsubmodoonly, from the wife to the husband, upon their intermarriage.

A contract of hiring is not a sale of the thing for the period of hiring; the property remains as it did before — it is a contract for the use of the thing hired. The hirer is a mere bailee, orlocum tenensfor the owner, and only holds the property for him. The general property draws to it the possession, as long as the occupant, or qualified owner, retains the occupancy. At any rate, the possession of the hirer is not a possession for himself, for nothing is more common than the maxim that the possession of the bailee is that of the bailor; and hiring is a species of bailment. If the hirer possessed for himself, he could not possess for another, whose possession has continuance and is exclusive of his. He is called the qualified owner, not to express his ownership, or that he has any part of the property, but for want of a proper term to express his interest in it.

I therefore think the owner's possession is not disturbed by the hiring; that the occupancy of the hirer is perfectly consistent with it, and therefore does not divest it; that the owner has such a possession that he may either sell or give the property. Of course, in the present case the marriage was a complete gift of the slave in question to the first husband. (312) For an inability to give, sell, or transfer is the reason why the marriage is not a perfect gift of the wife'schosesin action to the husband, they being incapable of a complete transfer, not for the reason generally given, that it is selling aPage 198right of going to law, and thereby stirring up lawsuits, but because such things are not property, and property only is the subject of transfer.

PER CURIAM. Judgment reversed, and judgment for the defendant.Approved: Granberry v. Mhoon, 458,post; Pettijohn v. Beasley,15 N.C. 512;Carter v. Spencer,29 N.C. 14.