McCULLOUGH AND WIFE et al. vs. WALKER AND WIFE

McCULLOUGH AND WIFE et al. vs. WALKER AND WIFE. 1. Under the statute laws of North Carolina, a parol gift of slaves is null and void. 2. When a party has a legal title and an unembarrassed legal remedy, chancery will not take jurisdiction. Error to the Chancery Court of Tuskaloosa. Tried before the Hon. W. W. Mason. Walker and Wife filed their bill against the plaintiffs in error, setting forth that John B. Williams married Winifred, daughter of Samuel Hayes, in the State of North Carolina, ■ about the year 1823; that said Hayes, before Williams left that State, put him in possession of a negro girl named Hannah, declaring that he did not give said girl to Williams, but placed her in his possession for the benefit of such children as his daughter, Winifred, should have. Immediately after this, Williams removed his wife and the slave to Alabama, where his wife gave birth to a daughter, now the wife of the complainant, Walker. Mrs. Williams shortly afterwards died, and Williams married a Miss Spencer, and died. His widow administered on his estate, sold the girl Hannah as the property of the estate, and became the purchaser herself. During her widowhood, the last Mrs. Williams (now Mrs. McCullough) sold the slave to one Windham, but kept possession of her. After this, she intermarried with the defendant, James McCullough, who took possession of Hannah and her increase, and still holds them. It is charged that the sale and purchase by Mrs. McCullough were fraudulent, as was also the sale to Windham; that they each purchased with a full knowledge of the condition of the title of the slave, and held as trustees for Mrs. Walker. The bill also sets up a deed of gift for Hannah and four children, who are named, made by Samuel Hayes to Mrs. Walker, bearing date 11th January, 1843, and the complainants set up title under this deed also. The defendants answer jointly, denying all the material allegations in the bill, and insist that by the laws of North Ca-. rolina, to wbicb. tbey refer, tbe parol gift of tbe slave was null and void. Tbey also demur. It is not necessary, under tbe view taken of tbe case by tbe Court, to set out all tbe proof: it is sufficient to say, that two of tbe complainants’ witnesses prove that Samuel Hayes loaned tbe girl Hannab to bis daughter, "Winifred, for life, and at ber death, tbe slave was to go to her children. This was done in tbe State of North Carolina and by parol. Tbe defendants offered in evidence tbe law of North Carolina, regulating gifts of slaves, wbicb is in these words: “Act of 1806, c. 701, §§ 1 and 3. No gift hereafter to be made of any slave shall be good or available, either in law or equity, unless tbe same shall be made in writing, signed by tbe donor, and attested by at least one credible witness subscribing; neither shall such gift be valid, unless tbe writing by wbicb any slave is transferred, shall be proved or acknowledged as conveyances of land, and registered in tbe office of tbe public register of tbe county where tbe donee resides, within one year after tbe execution thereof, if tbe donee be in actual possession of tbe slave so given and transferred : but if under any special agreement made at tbe time of tbe gift, tbe donor shall remain in possession of tbe slave so given, then tbe writing transferring or conveying tbe said slave shall be proved or acknowledged as aforesaid, and registered within tbe same time, in tbe county where tbe donor resides: Provided, That where any person shall have put into tbe actual possession of bis or her child or children, any slave, and the said slave shall remain in tbe possession of such child or children, at tbe time of tbe death of such person, be or she dying intestate, such slave shall be considered as an advancement to such child or children, and be regulated by tbe laws now in force relating to advancements made to children by a parent in bis lifetime.” E. W. Peck, for plaintiff in error. P. & J. L. MARTIN, contra. [MAJORITY — LIGrON, -J.] LIGrON, -J. Tbe case made by tbe bill, answers, and proof, does not authorize tbe relief sought. It can be only regarded, so far as tbe first part of tbe bill is concerned, as an attempt to establish a parol gift of a slave, made in tbe State of North Carolina, after the passage of tbe act of 1806, wbicb, in express terms, declares sucb gifts null and yoid, both in law and equity. It is true, the bill does not set up that the slave was given absolutely to Mrs. Williams or her husband, but it describes the transaction in such terms as to show that Hayes, the donor, intended that the whole estate in the slave should pass out of himself, and is thus equivalent to an absolute gift, The courts of North Carolina have repeatedly construed this act, and have declared parol gifts of slaves to be void, in much stronger cases in favor of their establishment than the one we are now considering. In the case of Bennett v. Flowers, (1 Dev. & Bat. 467) a father-in-law made a parol gift of slaves to his son-in-law, who, dying, bequeathed them to the donor’s grand-children, with his consent, and by his directions; yet, under the act of 1806 above quoted, the Supreme Court of that State held, that the title was still in the father-in-law, and that he might resume the possession of the slave at any time. To the same effect is the case of Hamlin v. Alston, 1 Dev. & Battle, 479. The deed of gift referred to in the bill, as made by Samuel Hayes to Mrs. Walker in 1848, does not strengthen the claim of the defendants in error to relief in equity. If that deed is operative for any purpose, it vests the entire legal estate in the slaves in Mrs. Walker, and she should have asserted her rights under it in a court of law, and not in equity, unless the bill contained other allegations than are found in this one. Baker v. Rowan, 2 S. & P. 361. The demurrer having been overruled by the Chancellor, and his action in this respect not being assigned as error, we deem it unnecessary to consider that part of the case. The decree of the Chancellor must be reversed, and the bill be here dismissed, without prejudice, the defendants in error paying the costs of this court, and the court of chancery.