Opinion · Nclaw North Carolina

RHODES v. HOLMES, 9 N.C. 193 (1822)

RHODES v. HOLMES, SURVIVING Ex’[r, x] OF SPILLER. — From Robeson., 9 N.C. 193 (N.C. 1822)

Type: Opinion
Court: Nclaw North Carolina
Jurisdiction: Nclaw
Date: 1822-01-01
Topic: general

RHODES v. HOLMES, 9 N.C. 193 (1822) RHODES v. HOLMES, SURVIVING EXECUTOR OF SPILLER. — From Robeson.Supreme Court of North Carolina December Term, 1822. 1. Sales of slaves by parol are valid as between the parties to such sales, and where neither purchasers of creditors are affected. 2. The Act of 1784, chapter 225, section 7, was made for the benefit of creditors only. 3.

Citator

UpLaw has not yet analyzed RHODES v. HOLMES, 9 N.C. 193 (1822). The absence of a flag is not a finding that it is good law.

RHODESv. HOLMES,9 N.C. 193(1822)

RHODES v. HOLMES, SURVIVING EXECUTOR OF SPILLER. — From Robeson.

Supreme Court of North Carolina

December Term, 1822.

1. Sales of slaves byparolare valid as between the parties to such sales, and where neither purchasers of creditors are affected.

2. The Act of 1784, chapter 225, section 7, was made for the benefit of creditors only.

3. When a bill of sale is not necessary, if one be given the vendor therein shall not set up want of registration against the vendee's title.

4. An unregistered bill of sale for a slave, as between vendor and vendee, may be used as evidence of title, and the execution thereof may be proved on the trial according to the rules of evidence in other cases of deeds.

COVENANT. The defendant's testator in his lifetime had sold and delivered to the plaintiff certain negroes, and in the bill of sale for said negroes he covenanted in the following words, viz,: "And I hereby promise for myself, my heirs, executors, and administrators, to warrant and defend the said negroes as before-named unto the said Rhodes, his heirs and assigns forever, against the claim of all persons whatsoever." The bill of sale was duly proven by the oath of the subscribing witness, and ordered to be registered 30 October, 1798, and the following indorsements were made thereon, viz.: "The 29 November, 1798, then was the within (194) bill of sale registered in the register's office of Robeson County, registered in Book H, folio the 274th." Signed, "Wm. Regan, Ass't." "Registered in the register's office of Robeson County, Book H, page 274." Signed "Neill Buie, Register." It was admitted that this latter indorsement was made after the trial of the suit below.

The defendant below objected to the introduction of this bill of sale in evidence, because it appeared from the certificate of Wm. Regan that he was only anassistant, and he signed his name as such, and because the certificate of Neill Buie, the register, was without a date, and therefore that the bill of sale had never beendulyregistered. This objection was sustained by the court and the evidence rejected. The plaintiff then offered to prove the execution of the bill of sale by introducing testimony of the handwriting of the subscribing witness, who was dead, which also was refused him by the court, and he was nonsuited. A rule was then obtained to show cause why the nonsuit should not be set aside and a new trial granted and on argument the rule was discharged and judgment accordingly, from which judgment the plaintiff appealed to this Court.

Seawell for plaintiff.Page 111

TAYLOR, C. J.

That sales and gifts of slaves by parol were valid under the act of 1784, as between the parties, and when there were neither purchasers nor creditors to be affected, is a construction of that act which was probably coeval with its passage. In a case decided in 1796, it was admitted by the court and bar to have prevailed anterior to that period, and it has not since been departed from.Knight v. Thomas,2 N.C. 289. Now, if a sale byparol, and according to thecommon law, was available between the parties, the reason is stronger wherefore abill of saleshall be so, since the evidence of the contract does not so much depend upon the memory of witnesses. The want of formal bills of sale and the want of a law for perpetuating them are the mischiefs pointed at by the Legislature as producing injury to others by secret sales and gifts. Where a bill of sale wasnecessary, it was essential to the title that it should be recorded for the purpose of giving full notice to purchasers and creditors. But where a bill of sale wasnot necessary, but merely made by (196) the parties from abundant caution, there can be no reason why the vendor should set up the want of registration against his vendee's title; for he does not want any notice of the contract, and no other person can suffer injury from the omission to register.

If the second section of the act of 1789, ch. 315, were a separate and unconnected statute, I admit that its effect would be to render "void and of no force whatever" this bill of sale for want of registration withintwelve monthsafter the making thereof. But it was not only made inparimateriawith the act of 1784, but with the express and only view of allowing a further time for the recording bills of sale and deeds of gift where it was neglected before that period, and permanently enlarging the time within which future bills of sale and deeds of gift should be recorded. In other words, where bills of sale and deeds of gift are necessary under the act of 1784 they may and must be recorded according to the act of 1789. But where they are not required to be made by the first act they need not be recorded by the latter. The same remarks apply to Laws 1792, ch. 363.

HALL, J.

In 1796, it was decided inKnight v. Thomas,2 N.C. 289, that aparolsale of slaves was good as between the parties thereto, and that Laws 1784, ch. 225, sec. 7, which declares that all sales of slaves shall be in writing, and attested by one credible witness, and registered within nine months, was made for the benefit of creditors only.

In the present case it appears that the negroes, for the value of which this suit was brought, were delivered to the purchaser, and ifPage 112there had been no bill of sale the sale would be valid as between the parties, according toKnight v. Thomas. But the question is, Is the purchaser in a worse situation than if a bill of sale not registered (197) had not been executed? If the act of 1784 was made for the benefit of third persons, I cannot think he is; for if that act will dispense with a bill of sale altogether, I am at a loss to see why it will not dispense with a registration of one, for that too was required for the benefit of third persons. I cannot but think that an unregistered deed as between vendor and vendee may be used as evidence of title, as equal at least to parol evidence.

It may be thought that the act of 1784 in this respect is like Laws 1715, ch. 7, sec. 1. That act declares "that no conveyance or bill of sale for lands, in what manner or form soever drawn, shall be good or available in law unless the same shall be acknowledged by the vendor or proved by one or more evidences, etc., and registered by the public register within twelve months." It is to be observed that title to personal property of any kind passed at common law byparolcontractorby deed as completely as slaves now pass by registered deeds, and as between the parties the title to slaves may still be conveyed as at common law. But as to lands at common law, title to them could only be conveyed bylivery of seisin;it could not be conveyed like personal property. But the Statute of Uses, 27 Hen. VIII., ch. 10, has given use to other modes of conveying real estate in whichlivery of seisinis dispensed with; and it is of those kinds of conveyances that the act of 1715 speaks. Before the Statute of Uses a deed of bargain and sale did not convey the legal title to land; but by virtue of the statute it has that effect,providedit shall beregistered, for without registration it conveys no title. So that anunregistereddeed of bargain and sale of lands and an unregistered bill of sale for slaves are different in this respect, that the first conveys no title at common law, the latter does; hence, before the deed of bargain and sale for lands is registered nothing passes. I mean if it is not registered in the time (198) limited by law nothing passes; if it is, the title by relation passed by the delivery. The Statute of Uses, ch. 10, declares that no lands, tenements, etc., shall pass from one to another, etc., except by writing indented, sealed, and enrolled at one of the courts of Westminster, or else within the county or counties where the lands are situated.

But it was not practicable to register conveyances in this State according to the directions of the Statute of Uses. Hence it became necessary that the Legislature should point out the mode in whichPage 113registration should be made, and they have done so by the act of 1715, and it is indispensable that conveyances under the Statute of Uses should be registered according to that act, or they are void; and if, as before observed, they are void under the act, they cannot at common law (as an unregistered bill of sale for slaves would do) convey any title. Therefore (without giving an opinion on the other point made in the case), I think the rule for a new trial should be made absolute and that the plaintiff be at liberty to prove the bill of sale according to the rules of evidence as in other cases of deeds.

HENDERSON, J., concurred.

PER CURIAM. New trial.Cited: Palmer v. Faucett,13 N.C. 242;Bell v. Culpepper,19 N.C. 21;S. v. Fuller,27 N.C. 29;Carrier v. Hampton,33 N.C. 309;Tooley v.Lucas,48 N.C. 148.

(199)