OF THE STATE OF ARK ANSAS. LITTLE ROCK, Jan' y 1838. HYNSON HYNSON AND WIFE agaist TERRY . vs.
TERRY. APPEAL from White Circuit Court. To charge a jury, that " from the law of the case the Court is of opinion that the plaintiffs have not made out such a case as will entitle them to recover; but that the facts are with the jury," is 'not such a charging, aS to matters of fact, as is prohibited by the Constitution. In 'this respect, the Constitution has not altered the common law in the slightest degree. Gifts have no reference to the future, but go into immediate and actual effect. Delivery. is essential, both at law and in equity, to the validity of a gift. Without delivery the title does not pass. Actual delivery cannot be dispensed with, unless the gift be by deed or other instrument of writing. - In this country there is not the slightest difference between real and personal estate, except so far as such difference is created by particular Statutes. There can be no reservation, condition, or limitation, to a gift, by parole, to take effect in future. A parole gift, without delivery, is ineffectual, even between donor and donee. This was an action of detinue, instituted in the Pulaski Circuit Court, by Hynson against Terry, for a negro boy 'named Daniel, and transferred to White Circuit Court, when White county was created. and the issue was tried by a jury. The Terry pleaded non detinet, testimony, as embodied in the bill of exceptions, is as follows; Morgan Magness deposed, that about tWenty years previous-to-the trial, in the State . of Illinois, his fathet, Jonathan .Ma'gness, gave to and his wife, (she being a daughter of. said Jonathan,) negro Terry girl named Nancy,_between 'eight and twelve years of age, with the express understanding that tbe first child she shbuld have, should be the property of Eliza j daughter of Terry's wife, and grand-daughter of said Jonathan; and that the said witness was called upon to witness Eliza and Hynson intermarried in 1831, and had issue. this. That was not deliv-David Magness deposed, that the negro girl Nancy ered to TerrY till about eighteen years- previous to the trial; at which time he heard nothing said about her first child.. That Daniel, her first child, was worth four hundod dollars. deposed, that Daniel was Nancy's first child, about William Terry ten years old, and"worth from three to fonr hundred dollars; and that Hynson had demanded him of Terry. William Cook, also deposed as to his value. Upon this state of testimony,. the court below was called upon by both parties to charge the jury; and charged them.
84 CASES IN • THE SUPREME COURT ivt,,E, "That to make-a verbal kilt valid, there must ROCK, • be a thing in being Tan'y On. at the time, capable of being delivered, and an actual delivery must HYRSON b_e made." Also, " that a delivery of the girl Nancy to Terry and-- TENY. wife, was not a sufficient-delivery to them as trustees, so as to vest the child of Nancy, when born, in Eliza, .so as to enable the plaintiff; flynson, to recover:" and that."fi'om the law in this case, the court was of opinion, that the plaintiff had not made out such a case as would .enable him to recover, but that the facts were with the jury. The jury_ found .for the defendant:, Terry, 'and a judi'ment was en-• tered accordingly. Hynson then filed his motion for a new trial, with an affidavit that since the trial he had discovered nbcv and material testimony. That his first Witness had recollected after the trial, that at the time that the said Jonathan gave the girf Nancy to Terry and wife, he alsa gave them a mare, with the express agreement, understanding and condition, that the said Eliza was to have the first colt the . mare might have, and the 'first child Nancy might 'have. And also, that he believed he had riet had. a fair trial-, whereby justice had not been done: • The motion for a new trial being overruled, Hynson appealed; .and assigns. for error, the overruling the motion for a new trial, and. the charge to the jury on all the points abovementioned. FOWLER,. for. the plaintiff in error: -It is contended, on the part of Hynson, that Magness, (Mrs. Terry's father,) bad .a right to . make a stipulation in behalf of hiS grand-d.Mghter, to take effect in future; and that such stipulation is binding on Terry; aod gives a perfect legal right to his grand-daughter, .which may . be enforced, unless. barred by the statute of limitations, which has nqt . been, nor could be, set up as a defence in this case. 1 dnnyn on Contr. p. 1.3,26; 1 Ch. Pl. 4. It is 'also . contended that the title to Nancy vested in Terry , , on deliverY by.:Magness; and.the right to sue, in Eliza, on the birth of Dani4J. and HynsoWs Tight to sue, on his marriage with Eliza ; and that no actual possOssion . by , plaintiff* necessary to sustain detinue. 1 Bibb's Rep. 186 ; :soWs p., title Detinue ; 3 Com.Dig. 358; Steele 8, 526, sec. 19, page 216,. sec. 12. It Wfurther conterided....th: . a-the Circuit Court erred in charging the jurr On Matters of fad--; :and instructing the jury that Hynson had.not made, out such a case as would- entitle him to recover. State Consti-tation, nrticle 6, sec.12, page 16.
OP TIllE -STATE OF ARKANSAS: . -85 HAGGARD, contra: The boy Daniel was not born till some eight or LITTLE ROCK, fen years after the pretended gift. Jan'y f838. The bill of exceptions does not any where show that all the evi- inrrisoN dence is set out in said bilIof exceptions. See 2 Littell, 182, 186; Taly. 5 Littell, 316, 221. The defendant in error _insiits that no notice can be taken of plaintiff Hynson's affidavit, for several reaSons:- 1st, Itis not incorporated , in the bill of exceptions, and should not have been copied in the record. 2d-, It exhibits only an experiment by :plaintg in which he failed, to examine his witness to certain points, and when he ascertained his weak points, attempted to strengthen them. It opens a door for tampering with a witness which the law abhors. The defendant insists . that where justice has been done between the parties so far as the coUrt can"pee, the verdict • should not be disturbed. See 1 Pirtle _ ' s Digest, 359; 2 do. 118, 119; Johnson's Dig. 445. For which purpose it is essential that all the' evidence should : be spread out upon the bill of exceptions, and the record should so inform the revising trihund It will be seen lb& 8Q raj' as the evidence is spread out, the evidence of David Magness goes to counterbakinee that of Morgan. Mag-ness,leaving the evidence equally poised; provided the evidence of Morgan alome would ftirnish a tight of recovery. Again, it no where appears that the defendant, Terry, even had the negro Daniel in his possession, or detained hint, or exercised any control over him. The defendant insists that there :is no error in the charge nf the court: for to make a good and perfect gift, there must be an actual delivery of possession at the tirne:- See Chitty's Ed. of Bllc. Corn. vol. 2, page A41-2; Barn. Ald. 551; Laws of Arkansas pnge 527, sec. 24, etc. It will be seen that from the general principles of law, the delivery it the uegso .o irl to defendant, was ., a. gift, and he could have sold her (iiVd did .do so, for any thing the court here can see) at any time; aid , the plaintiff could not recover fsom defendant or his sub-purchaser; (especially, without proof that defendant was possessed of Dan;) and So _ the-defendant insists, that in any point of view, this Court should affirm the judgmen t of the court below. .: . :This defendant ffirther . adds,.that it is laid down as 'i general rule, 4ri the_:CaSe of Kingg y j Iriclzol vs. the Bank of the State of Tennessee, that the .Court Will presume that the evidence Was sufficient to author,
86 CASES IN THE SUPREME COURT iti rrts ite the verdict, unless the party who pyays for a new trialehows that . Y.a41' Mit all the evidence is in the bill of exceptions. See Yergers Reports, vol: HYNSON 3, page 107. TERRY LACY, Judge, delivered the_ opinion of the court: This is an action of detinue for a slave.. The defendant pleaded the general . issue upon which he had a verdict in the court below. The plaintiffif then moved for.a new trial, but the motion was overruled; to which opinion they filed their exceptions and appealed to this court. All the material facts of the case are spread upon the record; and the substance of the proof is, that about twenty years ago Jonathan Magness, who is the father of the defendant's wife, and grand-father of the plaintiff's wife, gave to - his daughter and the defendant, a negro girth by the name of Nancy, about eight or ten years old, with the express understanding that the first child the negro girl might have, should be the property of Eliza Magness, the present plaintiff's wife. This is all the proof in the cause, except that the slave in controversy is the first Child of the negro girl Nancy, and that his value is from three to four hundred- dollars, and that the plaintiffs made a demand of hiin before the commencemout of this action. To reierse the judg7_ ment rendered in the Circuit Court, the plaintiffs assign for error, that the judge wile tried the Cause erred in overrulirig the motion for a, new trial, and in the Mstructions given to the jury. It is conterided he has charged the jury upon matters of fact which is expressly prohibited by the Constitution. We are unable to see the force of this objection: The judge seems simply to have stated his opinion of the law, arid left the matters of fact entirely to the consideration of the jury. It is not only his right, but his duty, to declare what the law la ; and the expression in the charge, that "from the law in the case, the Court-was of opinion that the plaintiffs had not made out such a catise of action as would: enable them to recover; but that the facts were with the jury," certainly, cannot be so construed as to fall within the meaning or prohibition of the Constitution. The judge leaves the matters ci fact where ' the Constitution places them, for the consideration and judgment of the jury, and he merely declares his opinion of the law of the case, which he is bound to do under the most sacred obligations of his office, and upon every principle of legal right and constitutional duty. The Iatter clause of the twelfth section of the sixth article of the Constitution, which says that "j udges shall not charge the jury upon matters of fact, but may
OF THE STATE OF ARKANSAS. state the testimony and declare the laW," does not alter or ithange, in the_ slightest degree, the common law on the subject. It only gives 5an's.18311. its wise and protecting authority, additional sanctity and force., The RYKSON lawras matter-of right, belongs to the Court, and the facts to the jury. TEZRY. i8 the duty of the court to decide what is competent or legal evidence, and to declare the law that must govern the case. It is the province of the jury to weigh and compare the testiniony, and to apply the facts to the principles given them in charge by the court. .7t̀ o make the jurors judges or the law, and the courts judges of matters of fact, is to confound the clearest distinctions of right and wrong, and to put to hazard the life, liberty, and 'property of eVery man in the community. Such- an experiment would, in almost every case, be followed by the most gross and criminal violation of every principle of natural as well as civil justice. It remains now to be enquired whetherthe court erred in the other , Charge'given. -Ile assignment of errors raises several questions, but They all substantially amount to the same thing, and may be taken up ;and considered together. The court charged the jury that to make a verbal gift valid, there must be a thing in being at the time it was made, upon which the gift could act, accompanied with actual delivery; and the delivery of the negro girl Jir ancy, to defendant and wife, was not sucb a delivery as to-vest the first child of the negro girl, when born, in the plaintiffs, or enable -them to maintain this action. 4 gift or grant is defined to be "the ;3.ct of transferring the right and possession of a_ personal chattel; whereby one man renounces'and another acquires . all the title and interest therein; (2 Chitty's Black. 'Comm. 441 7 20 s which may beclone Iv deed or other instrnment in writing, or by parole. -,The civil law considered a gift as a contract, but:the Common laW does not place it on any such ground; "though it Would be difficult," CHANCELWR KENT remarks, " to perceive the reason of the distinction; for an executed grant certainly contains all the essential requisition -S-6f a contract." Ever since the celebrated acaie Of Ward vs: . Turner, 2 Ves: 411, it has been held that gifts have via referenie to the futiire,.b e ttt. go into immediate and absolute effect. Delivery is essential; both ,at -laW and in-equity,to the validiti of a gift. Without actual delivery, the title does not pass. In the case referred' to, LORD HARDWICKE gave the stibject a Most profound and elaborate investigation, and the doctrine there laid down has never been questi6ned - since his time. The case of Tate vs. Halbert, 2 Yes.
88 CASES 1N TIIE SUPREME . COURT Jun'r, and Irons vs. EPOIC Smallprice: 2,Saun. Rep. 47, (n) declares that Jan:y los actual deliVery 7 c -annot be dispensed with, except the transfer of the WYNSON gift be by deed or Other instrument.Of writing. And the Appellate COlirt of KentuCky, in Banks' administrators vs. Marksberry, 3 Littell, 280, 1, ‘2, say there is no doubt that, to the completion of a parole gift, Chet- delivery of the thing is essential, but they apprehend the principle does not apply to a gift by deed or other- instrument in writing' ; That.was a case where the party claimed nnder a deed of gift duly acknowledged and recorded( and Of course the point nOvir to be deterihirted- was put directly in issue. By the common lavir, it anciently stood; personal property was very littIe regarded, and it was not -until Modern times it received that just and liberal protec: tion whiCh it new so rightly enjoys. At this day the principle and characteristic distinction in England, between personal and -real estate, consisti in this, that Teal estale may be entailed; bUt personar estate cannot: 2 In our country, since estates intad - - have been abolished, there is net the slightestdifference betiveen the tWo species of property; except so far as they may be regulated by the particular statutes of the several States on the snbject: so that personal estate; ai it . now stands, may pass by'deed Or -other instruMent of writing, duly acknowledged and recorded with a condition or reservation annexed; provided the limitation be . not too . remote or uncertain to .be, valid, or not inconsistent with the gift. But there can be no reserva7. tion or condition to a gift by parole, to take effect in future.. By our statute, passed in 1804, pig. 527, sec.-24, no gift or gifts of any slavr3- or slaVes, shall be good or sufficient to pass any estate in such slave or slaves te any person or persons whatsoever, unless the same beby will, duly proved and recOrded, or by deed in Writing, to be proved by two witnesses, at leak, or acknowledged by the donor, and recorded in the COhnty where one of the parties lives, within eight months after the date of such deed or writing. This question was expressly decided in the case of Pile vs. Maulding, 7 J. J. Marshall, 204, and upon a'statute of- which ours is an exact copy. The court in declaring their opinion sty, that without actual delivery, a parole gift is ineffectual; and even between donor and donee, the title does not,pass, unless the deed be duly proved and recorded, aecording to the requisitions Of the act. The language of our statute is very similar to :47th Henry VIII, c. 16, requiring deeds Of bargain and Sale to be recorded, And 'it has never becti doubted that a
OF THE STATE OF ARKANSAS. deed of bargain and sale was inoperative, as between bargainer and Lr . i r TLE bargainee, unless it was proved and recorded within the time preicri Ian's , 1838 bed by law. In this instance it is not even pretended that there was trYtinoe WC; a deed of gift, or any other instrument of writing, between the donor TEElity. and donees, of the negro girl Nancy, much less of the slave in contro versy. It was simply a verbal gift of the father to his daughter and son-in-law, accompanied with actual delivery of the possession; and of course all the right, title, and interest the donor had to the slave And her increase, passed to and vested absolutely in the present defendant. The condition that was annexed to the gift was by parole, and the law is clear that no limitation or reservation can be raised or created Unless by deed duly proved -and recorded. The necessity. of delivery is so essential to the validity of a gift, that‘it is no longer regarded as a rule, but as a maxim; and the courts have in no instance dispensed with it. There must be an actual delivery accompanied by possession, if the gift be by parole; and if by deed, the execution of the deed constitutes the delivery, and it takes effect hy way of relation. The case now under consideration does not even, assume the appearance of a yalid or legal gift. It was a mere parole promise to operate upon a future and contingent interest, which could not, in the nature of things, be delivered; kir it was nOt then in being, and of course no title or interest of the slave in question could be passed or vest in the plaintiffs, without a deed or other instrument of writing duly proved and recorded. There can be no condition or limitation to a parole gift; and as none Was produced, or shown to exist, the Circuit Court decided correctly in charging the jury that the plaintifA had not made out such a cause of 'action as would entitle them to a recovery. The judgment of the eourt below must therefore he affirmed , with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.