delivered the opinion of the court.
This case was remanded from this court at its last term. Judgment was given for the plaintiff, and the defendants appealed. ,
; There are two bills of exception taken by the appellant. The first is to the opinion of the court, who refused to admit evidence on ex parte affidavit made by a witness whose death was offered to be proven. The second was to the admission of parole evidence to prove the sale of a slave in the state of Mississippi.
It was proven in this case, that parole sales of slaves attended with delivery, are valid in that state. Both bills of exception, appear to us alike untenable.
On the merits, the plaintiff claimed a slave in the defendant’s possession. The defendant set up title in himself. He showed he was once owner of the slave, and exchanged it with one Dawson. That he obtained a re-conveyance of the slave, by a deed from Dawson, defeasible as Dawson’s making him a title for Aaron, a slave which the. latter had given him in exchange, for the one sued for. But this deed was not accompanied by delivery. The slave remained in Dawson’s possession, and was by him sold and delivered to Hunter, who afterwards sold and delivered it to the plaintiff.
In the-state of Mississippi, where the transactions took place slaves pass by parole contract, and delivery. The slave sued on, was once the defendant’s property. He exchanged it with Dawson for another. Afterwards being doubtful of Dawson’s title, he took, to secure himself, a re-conveyance of | the slave sued for; but he suffered the alienor to retain the possession of the slave, who in the mean while was sold and delivered, and became the plaintiff’s property.
The defendant appears to have received, and does not appear to have parted with the property of the slave Dawson *163gave him in exchange. For any thing that is shown by the record, the title of the defendant to the latter is good.
At all events, nothing is clearer, that if the vendee suffers the vendor to retain possession, and he sells and delivers the thing sold to the second vendee, the latter will hold it in preference to the first.
It does not appear to us, the court erred in supporting the plaintiff’s claim.
Both parties claim under bills of sale, which in our opinion cannot avail. The plaintiff’s was attended with delivery. The Louisiana Code, article 2242 and 2417, require the registry of the instruments and delivery of the slave to render the conveyance valid against creditors and third parties; so their respective rights must depend on the verbal sales which need not, and could not be recorded.
The sale to the defendant is deficient, because unaccompanied by delivery.
But he contends that there is a broken link in the plaintiff’s title. Dawson’s sale to Hunter was accompanied with a declaration that he should make no title to his vendee, until he himself obtained one from Young. Being accompanied with delivery and payment of the price, transferred all Dawson’s rights in the slave to Hunter. His title was complete, though he was under the apprehension that he lacked a written title from Young : All these transactions taking place in the state of Mississippi, where the conveyance of slaves need not be in writing.
It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.