Booth v. Terrell

By the Court.

Starnes, J.

delivering the opinion.

We thinlc that the Court below erred in so framing hig -charge, that the Jury might infer, from the language used, that though a loan from one person to another were gratuitous ; yet, if the property were to be delivered to a third person at the termination of the loan, the lender had parted with all dominion over it from the beginning, and the transaction amounted to a gift to the first taker.

The Court says ; “ If Hodges had titles, and loaned the property to Mrs. Terrell for life, to be delivered, at her death, to the plaintiff, Martha Booth, this is an attempt to create a remainder by parol, which cannot be done; and the dominion over the property having been parted with by the lender, it vested an absolute fee simple estate in Mrs. Terrell, and through her, in her husband.”

The predicate for the conclusion which the Court,draws, viz: that a fee simple vested-in Mrs. Terrell is,'that the *572‘property was loaned to her for life, to be delivered at her death. If Hodges, says the Court, loaned the property, for life, to Mrs. Terrell, to he delivered, at her death, to the plaintiff, that vested an absolute fee simple estate in Mrs. Terrell.

According to this reasoning, it follows, therefore, that though the loan was gratuitous, and was intended to have nothing but the characteristics of a gratuitous loan, one of which is, that it must “ rest upon the good pleasure and faith of the lender,” and is “strictly precarious.” (Story on Bail, §258, and cases there cited.) Yet, if the property was to be delivered to the plaintiff at the death of Mrs. Terrell, ;it amounted to a gift. This proposition is equivalent to the . declaration, that though, by the transfer of the property to the plaintiff, the lender, Hodges, intended to loan the property, and not to part with dominion over it; yet, by such transfer, he did part with dominion over it, because it was •not to return to him upon the death of the bailee..

We cannot recognize the correctness of this proposition. On the contrary, it appears to us, that in the very nature of 'terms, the lender did not part with dominion over the property, so far as the right to withdraw it from the possession ,of Mrs. Terrell was concerned, if it were a gratuitous loan 'to her ; and therefore, the conclusion of the Court was erroneous.

But it is urged that the meaning of the Court may have been, that if Hodges had parted with dominion over the property, by the loan to Mrs. Terrell, this gift was an attempt create a remainder by parol, whether he had said, or not, that he loaned the property.

Two criticisms are to be made upon this observation: '1. Such seems not to have been the Avay in which the Court desired to be understood, as we infer from the fact, that the '.learned Counsel, in his argument, has presented the view which we attribute to the Court. 2. If the meaning of the Court were such as last suggested, he did not clearly express himself, so that the Jury might understand the difference between .such a parting with the property, and.a mere gratuitous loan, in. *573which the owner did not intend to part with dominion over it; and therefore, the Court erred.

Let the judgment be reversed.