Mecklenburg County NcArchives Court.....William Houston, Richard M'Cree V. 1819
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 2, 2009, 7:08 pm

Source: Nc Reports
Written: 1819

Richard M'Cree v. William Houston

From Mecklenburg

November Term 1819

Alexander, upon the marriage of his daughter with M'Cree, made a parol gift to 
him of a slave. M'Cree kept the slave in his possession for seven years, and 
being about to remove out of the State, he made a parol gift of the same slave 
to his son, an infant of four years old, who, with the slave, remained with 
Alexander. Two years afterwards. Alexander sold the slave for a valuable 
consideration to Houston, who knew of the gift to M'Cree's son. This sale to 
Houston is good as against M'Cree's son, under Laws 1784, ch. 10.

This act makes all plural gifts of slaves void, as to creditors and 
purchasers, with or without notice.

Gift, of slaves, not void as to the creditors of the donor and purchasers from 
him, must be in writing, attested and registered, and made bona fide.

This Court adopts Lord Mansfield's construction of the statute of 27 
Elizabeth, and will support voluntary conveyances made bona fide, and founded 
upon a meritorious consideration, against purchasers for a valuable 
consideration.

This was an action of detinue for sundry negro slaves. Maria and her children; 
and the case was, that William Alexander, sen. was the owner of the negro 
slave Maria, and upon the marriage of his daughter Mary with William M'Cree, 
father of the Plaintiff, in 1789, he made a parol gift of Maria to his son in 
law, who kept her in possession until 1796; when, being about to remove to the 
state of Tennessee, he made a parol gift of Maria to his son Richard M'Cree, 
the Plaintiff, then an infant about three or four years old; and left the 
Plaintiff and the slave Maria with William Alexander, the grandfather of the 
Plaintiff. Afterwards, in 1798, William Alexander, for a valuable 
consideration to him paid, sold the slave Maria to the Defendant William 
Houston, who, at the time of the purchase, was fully apprised of the 
Plaintiff's claim to the slave. All the other slaves named in the declaration 
were the children of Maria, and the Plaintiff brought this suit within three 
years after his arrival to full age. The Jury, under the direction of the 
Court, found a verdict for the Defendant; and a rule for a new trial being 
obtained, on the ground of misdirection by the Court, the case was sent to 
this Court.

Mordecai and Gaston, for the Plaintiff.
A. Henderson, for the Defendant.

Hall, Judge  There can be no doubt but that the Plaintiff would be entitled 
to recover no Common Law principles. The slave Maria was given by Alexander to 
his son in law, M'Cree, who had notorious possession of her for six or seven 
years. He then gave her to the Plaintiff, his son, who was an infant, and 
remained with Alexander, his grandfather, after his father's removal. Some 
time afterwards, Alexander sold the slave to the Defendant. It is not 
pretended that these gifts were not bona fide made: and, therefore whether if 
the first gift had been made in secret, and the father in law had retained 
possession of the slave so given, and had afterwards sold her to a purchaser 
for a valuable consideration without notice, it would have amounted to one of 
those cases of fraud, which Lord Mansfield says, the Common Law would have 
reached without the aid of any statute (Cowp. 434); or whether a right was 
thereby created in the donee, although fraudulent, which could not he divested 
by him who afterwards acquired a right without fraud (3 Co. 83. Cro. Eliz. 
445), it is not necessary now to decide.

But it is necessary to consider, 1st. Whether the statute of 27 Eliz. ch. 4. 
interposes any obstacle to the Plaintiff's recovery? and if not, 2d. Whether 
he is prevented therefrom by our act of 1784, ch. 10, sec. 7?

I think the statute of the 27 Eliz. does not extend to this case; because the 
subject in controversy is a personal chattel, and that statute in express 
terms extends only to real property and leases for years. It declares that all 
covinous and fraudulent conveyances of lands, tenements and hereditaments, 
shall be void as to subsequent purchasers for valuable consideration. No words 
are used which comprehend personal property. If the rule be applied, "that 
statutes made in suppression of fraud should receive a liberal construction" 
(3 Co. 82.a.), the statute does not embrace the present case. The statute of 
13 Eliz. in favor of creditors, speaks not only of lands, &c. but also of 
goods and chattels; and if it had been intended that the statute of 27 Eliz. 
should extend to goods and chattels, it would have been so expressed. It may 
be further observed, that the statute of 13 Eliz. in the third section, 
declares that the parties to such fraudulent conveyances, as it is made to 
avoid, shall incur the penalty of one year's value of the land, and the whole 
value of the goods and chattels; but the statute of 27 Eliz. which inflicts 
the same penalty as to the lands, &c. is altogether silent as to the personal 
property.

But admitting that the statute extends to goods and chattels, and that the 
gift to the Plaintiff was legal and not affected by our act of 1784, it would 
be with difficulty that I could bring my mind to adopt such a construction of 
it as would prevent a parent from acting in obedience to one of the most 
sacred duties imposed upon him by the laws of nature, that is, making suitable 
provision for his children. When a child marries, and separates from his or 
her parent, the first thing that occurs to the mind of the parent is, what 
part of his property, in justice to himself and perhaps to other children, 
ought he to give by way of advancement. Perhaps, as in the present case, he 
can spare a negro girl to assist his daughter; when he has done this, he 
thinks he has only done his duty, and the world thinks so too. Keeping out of 
view adjudications on the subject, let us see whether the Parliament of 
England thought otherwise when they passed the statute of 27 Eliz. In the 
preamble, as well as in the body of the statute, fraudulent conveyances are 
complained of, and declared void in favor of purchasers for money or other 
good consideration. To the proviso contained in the fourth section, it is 
declared that the statute shall not extend to purchasers upon or for good 
consideration and bona fide. The result seems to be, that as the conveyances 
sought to be set aside were made upon a good consideration and bona fide, they 
were not fraudulent, and therefore not within the statute. And in this sense 
are the same words used in the Statute of 13 Eliz. But it has been decided, 
that although in the preamble and body of this act, the Conveyances there 
spoken of are set aside in favor of subsequent purchasers for money or other 
good, consideration, that the words "good consideration" means valuable, 
consideration. 3 Co. 83. The necessity of the case required this construction; 
because, if it had been held that conveyances should be set aside in favor of 
subsequent purchasers for a good consideration, this dilemma must have been 
encountered, that conveyances for a good consideration and bona fide, spoken 
of in the proviso, must be set aside in favor of subsequent purchasers for 
good consideration; which would lie absurd. It was therefore unavoidable that 
the words "or other good consideration" in the body of the act, should be 
construed to mean valuable consideration.

But it has also been decided, that as the words "good consideration" in the 
body of the act, means valuable consideration, the same words in the proviso 
in the forth section means the same thing. Surely they ought, if there be the 
same necessity for it. We have seen, in the case first put, that there is a 
necessity for it. In the case last put, that necessity is not so obvious; and, 
if not, why shall we not be governed by the plain import of the words? By 
doing so, the child would retain what justice required the father to give it, 
and what he had given bona fide: and not be dispossessed whenever the whim and 
caprice of the parent might cause him to sell it to a purchaser for valuable 
consideration, whether he had notice or not of the gift to the child. But, 
says Newland, in his Essay on Contracts (Newl. 408), after reciting the 
arguments on both sides of the question, "although these arguments may shew 
that a different construction, with respect to voluntary conveyances founded 
on a meritorious consideration, ought at first to have been put on this 
statute, it is now too late to dispute this point; it having been settled by 
several solemn decisions, that such conveyances, notwithstanding the merit of 
their consideration, are, with respect to purchasers for valuable 
consideration, fraudulent and void."

Be this as it may, the Law was understood differently in 1777 (Cowp. 710) 
shortly after we separated from the mother country. And if the Law, as then 
declared by Lord Mansfield, meets with our approbation, it would be wrong to 
sacrifice our opinions to decisions which may have taken place since; more 
particularly, as I think, the construction then put upon the statute is more 
suitable to the nature of personal property in this State than a contrary one.

I am aware that some decisions have taken place in this State, which indicate 
that those who made them thought differently. But it may be observed, that the 
question we are now considering was not made. In Ingles v. Donaldson, 3 N. C. 
57, which was an action brought for a slave, it is to be regretted that the 
question was not made; as we could have had the opinion of Judge Haywood on 
it. No one holds his judicial opinions in higher estimation than I do. But it 
will be readily seen in that case, that the Court took it for granted that the 
statute applied to the case, and its mind was only occupied in the proper 
application of the principles of the statute. The cases referred to in Ingles 
v. Donaldson prove this. They were cases of real property, and prove nothing 
against what I now contend for. But if this statute be not in the way of a 
recovery, we are, secondly, to inquire whether the act of 1784 operates to 
prevent it.

I am satisfied, for the reasons given in Sherman v. Russell 4 N. C. 79, that 
the act of 1784 requires that all gifts, as well as sale of slaves, shall be 
in writing; otherwise, as there expressed, it would follow that parol gifts, 
although the donee did not remain in possession after the gift, would be good, 
and a parol sale for a valuable consideration, and accompanied with 
possession, would be void: a difference between gifts and sales which I think 
the Legislature never intended. And were we now, for the first time, to fix a 
construction on the act, I would say, that all parol gifts and sales should be 
void as between the parties thereto; that no person should he divested of his 
property in slaves by parol evidence; that a title to slaves should not be 
conveyed to any person by parol; and that all such titles should be, as the 
act emphatically expresses it, void. But, this question has been put to rest 
by Knight v. Thomas, 2 N. C. 289, amongst others. In that case it was said, 
that it had been decided by the Court that a parol conveyance of negroes was 
good as between the parties, but was void as to creditors; as well creditors 
after the conveyance as those who were such at the time; and with those 
decisions the Court in the case agreed. And in Hancock v. Hovey, 1 N. C. 152, 
it was held by the Court, that as the slave was delivered and the possession 
kept by the donee's guardian, no deed of gift was necessary, because creditors 
and purchasers were not concerned. There was certainly another reason, and 
that created by the act, and that was, that a person should not be compelled 
to part with his slaves, except a written conveyance for them be produced 
against him; for, in this respect, he was shielded as by the statute of frauds 
and perjuries.

The act declares that "Whereas many persons have been injured by secret deeds 
of gift to children and others, and for want of formal bills of sale for 
slaves, and a law for perpetuating such gift and sales, for remedy whereof, 
&c. Be it enacted, that all sales of slaves shall be in writing," &c. The 
remedy was for creditors and purchasers, for none others could be injured; as 
to them, all gifts and sales of slaves not in writing were void: more 
particularly as to purchasers; for laws had been enacted before that time for 
the benefit of creditors. If the law then required that all conveyances of 
slaves should, as to them, be in writing, it followed that sales and gifts not 
in writing should be void, and the original owners, as to creditors and 
purchasers, should still be considered as the legal owners, so that they could 
convey the property in slaves to subsequent purchasers by deed, whether such 
purchasers had notice of a former gift of sale without deed or not: for, if 
they had notice, they thereby knew that such sale or gift, as to them, was 
void. It would not do to say that the title of such donee or vendee depended 
upon the fact, whether the subsequent purchaser had notice or not. The act of 
1784 declares such gifts and sales to be void, but says nothing about notice. 
If the act under such circumstances declares the Defendants' title to be good, 
we have no right to say that it shall not be good, because another 
circumstance does not appear; namely, that he purchased without notice. This 
is not the case, where a person has a title made to him, knowing at the same 
time of another person's equitable title to the same property. In such case 
the legal title would prevail at Law, but the person obtaining the legal title 
would, in equity, be considered a trustee for the equitable claimant. So in 
this case, if the Defendant were to apply to a Court of Equity for a favor, 
stating that he had notice of the Plaintiff's claim when he purchased, perhaps 
he would not on that account, meet with redress. But here we can only notice 
legal rights. In Latham v. Outen, 3 N. C. 66, it was not only decided that 
upon a gift made by a parent to a child, a deed of gift, shall be executed and 
proved and registered, but that a subsequent purchaser, as Latham was, should 
be entitled to the property in case there was no deed. No question was then 
made whether Latham had notice of the gift to the daughter or not; and I take 
it for granted, that the Court considered that circumstance immaterial, or 
notice would have been taken of it as weighing something for one party or the 
other. Upon full consideration of the case, I think the rule for a new trial 
should be discharged.

Henderson, Judge: concurred in opinion with Judge Hall.

Taylor, Chief-Justice, contra: I do not intend to inquire whether the act of 
1784 was correctly construed at first, because whatever my individual opinion 
might be, a series of decisions to the same effect, long known to the public, 
acquiesced in by the Legislature, and sanctioned by the Court of dernier 
resort, must be considered as establishing the Law. But it cannot be denied, 
that those decisions have been the result of an equitable construction of the 
act, placing within its action parol gifts, because they were within the 
mischiefs designed to be suppressed; and taking out of its words, and giving 
validity to gifts between the parties, where there were no creditors or 
purchasers, because it was for the protection of their rights, and for that 
object alone, that the act was made.

To my mind it seems fair and conclusive reasoning, that the spirit of this 
interpretation shall he pursued through its consequences, and that every parol 
gift,   which is assailed on the ground that it is forbidden by the Equity of 
the act of 1784, shall be defensible under the same act, not only where there 
are no creditors or purchasers, but likewise, where there are none whose 
rights can be affected by the construction, it may be supposed, that if the 
Legislature had explained themselves fully upon the subject they would have 
said, "So far as these parol gifts have a tendency to injure other persons, to-
wit: creditors or purchasers, we mean to put an end to them. The injury may be 
effected by fraud, or by secrecy, one of its badges; and the presence of 
either shall render the gift a nullity against those persons. Whatever may be 
the character of the gift, however, it shall prevail against the donor, and 
all volunteer claimants under him; to the end, that, if it be fair, the donor 
shall not be enabled to practice a fraud upon the donee by resuming the gift, 
and if it be fraudulent, that the donor may be punished for having practiced 
it." So far as any number of cases has settled the construction of the act, 
they have been guided by the spirit of this reasoning to the utmost extent of 
which I should be willing to go in any future cases; giving effect to the 
probable intent of the Legislature, by putting down parol gifts, when made to 
the injury of others, but sustaining them, when that consequence cannot 
possibly be produced.

I will now briefly examine the character of this transaction as it appears 
upon the case stated: Upon the marriage of his daughter with William M'Cree, 
Alexander gave him, by parol, the slave sued for; the gift was accompanied 
with a delivery, and followed by seven years possession in the son in law. The 
obvious motive of the gift was, the duty of providing for a child on her 
establishment in life; the consideration of it was marriage, which says Lord 
Coke, is more esteemed in the Law than any other, "in respect of alliance and 
posterity." The marriage consideration has been, from early times, considered 
sufficient to raise an use, on account of the benefit derived to the father by 
the advancement of his child, and his being relieved from the charge of 
maintenance (Plowd. 58): and it is such a consideration as makes a conveyance 
good against purchasers under the statute of 27 Elizabeth. There was not the 
slightest ground to impugn the fairness of the transaction between Alexander 
and his son in law, unless it could be imagined that he intended, when he made 
the gift, to deceive some future purchaser. I should be unwilling, without a 
necessity enforced by the plain meaning of the words of the act, to annul a 
transaction characterized by so much fairness, and to enable a third person to 
gain prosperity at the expense of an innocent and meritorious acceptor of a 
parent's bounty.

Nor does the act in my opinion, require a construction favorable to a 
purchaser with notice, where the gift between the parties was fair in itself. 
There is a solid reason why notice to a subsequent purchaser should make no 
difference, where the first transaction is fraudulent: for then, when he has 
notice, he knows also that it is void; and to prefer the purchaser's title in 
such case, is to discountenance and suppress fraud. There is an obvious 
difference between a gift really meant by the parties to deceive some third 
person, and one which is fair and upright in itself, but which the Law in 
pursuit of a certain policy, pronounces void against a subsequent purchaser, 
in the latter case, the inquiry whether the purchaser had notice forms an 
indispensible ingredient in the justice of the case; and when the notice is 
fixed upon him, it stamps his claim with the odium of attempting to divest the 
title of a prior owner, whose acquisition was not only fair, but, as in this 
case, singularly meritorious. Hence the regret expressed by the English 
Judges, that the constructions upon the statute of 27 Elizabeth should have 
rendered voluntary conveyances void against subsequent purchasers with notice. 
Admitting the voluntary conveyances to be fair also, this regret is perfectly 
natural; but would be altogether misplaced upon the supposition that they were 
fraudulent in fact. In truth, it is only by a process of subtle and artificial 
reasoning that voluntary conveyances, made bona fide; are brought within the 
operations of that statute: such as making a subsequent sale a proof of an 
original intention to deceive. From persons aware of this, it is not 
surprising to meet with the following observations: In Evelyn v. Templar, 2 
Bro. 149, Lord Thurlow said, "that although it would have been as well, at 
first, if the voluntary conveyance had not been so little thought of, yet the 
rule was such, and so many estates stand upon it, that it cannot be shaken." 
In Doe v. Mannong, 1 N. R., 335, Mansfield, Chief-Justice, "regretted that it 
had ever been decided that even notice of the prior settlement would not 
defeat, a subsequent purchase." In Doe v. Manning, 9 East. 71, Lord 
Ellenborough says, "it would have been better if the statute had avoided 
conveyances only against purchasers for valuable consideration, without notice 
of the prior conveyance." These remarks, and many others scattered through the 
book's (Newland Contr. 408) render it probable that a wrong construction has 
been put upon the 27 Elizabeth; and that if it were now to be construed for 
the first time, purchasers with notice would not be protected by it. The 
English Judges are fettered by a long chain of precedents, We are not so; but 
at liberty to adopt that construction of the act of 1784, upon this point at 
least, which is more consonant with the views of the Legislature.

In a gift fairly made, which this undoubtedly was, I am unable to distinguish 
between the donor and voluntary claimants under him, and a purchaser with 
notice, except to the disadvantage of the latter. Against the donor, the donee 
is protected in the enjoyment of the property, because gifts between them were 
not the mischief intended to be suppressed. Shall a person "fully apprised of 
the donee's claim" be in a better situation than the donee, and bottom his 
title upon an act, the preamble of which speaks only of the injury done by 
secret deeds of gift? To him, most clearly, the gift was no secret: he paid 
his money with his eyes open, and with a mind full conscious that he was 
buying property which, according to every principle of honesty and rectitude, 
belonged to another person. In this view of the case, I am unable to bring my 
mind to a construction of the act of 1784, which shall prefer the title of the 
purchaser with notice to that of the donee. For I believe the effect of such a 
construction will be to suppress fraud in one shape, and cherish it in a 
different and more odious one.

On the remaining question, whether notice be a fit subject for consideration 
in a Court of Law, I have no doubt. If the just construction of the statute 
will not sustain the title of a purchaser with notice, he is no more entitled 
to the support of a Court of Law than to that of a Court of Equity; for the 
true meaning of a statute is equally within the cognizance of both Courts. In 
all cases of fraud too, they have concurrent jurisdiction. The mala fides here 
consist in the purchaser's assisting the donor to defraud the donee; and the 
fact being established by means of the notice, neither Court ought to sustain 
the title. If the act is silent as to the notice, so likewise are the 27 
Elizabeth, and what are called the registry acts: yet the cases cited shew 
that the question has been considered in both; to which may be added Cro. Jac. 
158, where the want of notice is a fact stated in the case, on which the Law 
was pronounced. And as to considering notice at Law, many cases shew that it 
may be done. 1 Burr. 474. Peake's N. P. 190, 191. On this head of notice the 
case presents a question which has never been decided in this Court, nor has 
the Law been settled by any current of decisions on the circuit. The case of a 
purchaser at a sheriff's sale is not applicable; for he is armed with the 
rights of, and stand on the same eminence with, a creditor. 

My opinion upon the whole case is in favor of the Plaintiff, and for the 
reasons I have given; but, as both my brothers think differently, there must 
be judgment for the Defendant.




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