JOHN ZACHARIE AND WIFE, PLAINTIFFS IN ERROR
v.
HENRY FRANKLIN AND WIFE.
Supreme Court of United States.
*154 The case was submitted to the Court by Mr. Benton and Mr. Preston, on printed arguments. Mr. Benton read the arguments for the plaintiffs in error; and for the defendants.
*160 Mr. Justice BARBOUR delivered the opinion of the Court.
This case is brought into this Court, by a writ of error, to the district court of the United States, for the eastern district of Louisiana.
It was a suit commenced by the defendant in error, for himself and wife, by a petition, according to the Louisiana practice, for the recovery of several slaves, (with their increase,) and other property, consisting of stock of several kinds, and household and kitchen furniture; which he alleged had been sold to him, by a certain Joseph Milah, by a bill of sale, duly recorded in the proper notarial office; of which bill of sale, profert is made in the petition, and which is in the following words, viz: "Know all men, to whom these presents may come, that I, Joseph Milah, have this day bargained, sold and delivered unto Henry Franklin, his heirs, executors, administrators and assigns, six negroes, (naming them;) together with all of my cattle, hogs, horses, household and kitchen furniture, for the sum of twenty-eight hundred dollars, to me in hand paid; which property, I do warrant and defend," &c. Signed Joseph Milah, with his mark. To which was added the following condition, viz: "The condition of the above bill of sale is such, that the abovementioned property remain in my possession so long as I live; and, after my body is consigned to the grave, to remain, as abovementioned, in the above bill of sale." The defendants, Zacharie and wife, filed their answer, denying all the allegations in the petition, except as they thereinafter specially admitted. They then proceed to state, that the female defendant was in possession of the negroes referred to in the petition; that she possessed them in her capacity of tutrix of her minor children, John and Josiah, whom she avers to be the lawful proprietors thereof, by a just title, to wit, by inheritance from their father, Joseph Milah; they denied that the writing attached to *161 the plaintiff's petition, was ever signed or executed by Milah, and required strict proof thereof; they alleged that, if it ever were so signed and executed, it was done in error, and through the false and fraudulent representations of the plaintiff; and that no consideration was ever given or received therefor: that, if it ever were signed or executed by Milah, it was fictitious and collusive, intended to cover or conceal a disguised donation of the slaves therein mentioned; and that as such, it was null and void, not having been made with the formalities required by law; and they prayed for a trial by jury.
The defendants afterwards filed a supplemental answer, stating that, at the time when the alleged sale, under private signature, purported to have been executed, Milah had neither children nor descendants actually living; and that legitimate children of said Milah were afterwards born, and were then living.
A verdict and judgment were rendered in favour of the plaintiff.
At the trial, one bill of exceptions was taken by the plaintiff, and two by the defendant. As the judgment was in plaintiff's favour, it is unnecessary to consider the exception taken by him: we therefore pass, at once, to the consideration of those taken by the defendant, now plaintiffs in error.
The first of these was taken to the admission in evidence of the bill of sale, of which profert was made in the petition, upon several grounds which amounted in substance to this; that the instrument, being one which purported to convey slaves, was null and void, because it was not signed by the vendor; a mark not being, as alleged, a signature within the provision of the laws of Louisiana, in relation to slaves; and that no parol proof could be admitted to prove its execution. And that the instrument being one which contained mutual and reciprocal obligations, and not being in the form of an authentic act, was invalid; because not made in as many originals, as there were parties having a direct interest, and not signed by the vendee.
No adjudged case is produced by the counsel for the plaintiffs in error, in support of the first branch of the objection, that the instrument has the mark, and not the signature of Milah. It is rested on a provision of the law of Louisiana, which declares, "that all sales of immoveable property, or slaves, shall be made by authentic act, or private signature."
Signature is indeed required but the question is, what is a signature? If this question were necessarily to be decided by the principles of law, as settled in the courts of England and the United States, *162 there would be no doubt of the truth of the legal proposition, that making a mark is signing, even in the attestation of a last will and testament; which has been fenced around by the law with more than ordinary guards, because they are generally made by parties, when they are sick, and when too they are frequently inopes consilii, and when they therefore need all the protection which the law can afford to them. This principle is fully settled by many cases, amongst others, 8 Vesey, 185, 504; 17 Vesey, 459. See also 5 John. 144.
But the question has been directly adjudicated in Louisiana. In 9 Louisiana Rep. 512, it is said "that the force and effect to be given to instruments, which have for signatures only the ordinary marks of the parties to them, depend more upon the rules of evidence than the dicta of law relating to the validity of contracts required to be made in writing. The genuineness of instruments under private signature, depends on proof; and in all cases where they are established by legal evidence, instruments signed by the ordinary mark of a person incapable of writing his name, ought to be held as written evidence. According to the rules of evidence as adopted in this state, the ordinary mark of a party to a contract, places the evidence of it on a footing with all private instruments in writing." To the same point see the case of Madison v. Zabriskie, 11 Louisiana Rep. 251. This branch then of the objection to the admission of the instrument in evidence, is wholly untenable. Nor is the other branch of the objection to its admissibility better supported; as the first branch fails, as we have seen, for the want of law to support it; so this second branch fails for want of the fact, the assumed existence of which is the only basis on which it rests. That is, it is not in the language of the law, a cynalagmatic contract; or in other words, it does not contain mutual and reciprocal obligations; to which description of contracts only, does the objection at all apply.
All the words in the instrument, as well in its body as in the condition, are the words of the maker of the instrument, the vendor. The vendee does not sign it; he does not speak in it at all. Consequently, there are not, and could not be, any direct stipulations by him, nor can any be implied from its language and provisions; for the paper acknowledges on its face the receipt of the whole purchase money; and nothing whatsoever was to be done by the vendee.
The second exception taken by the defendant was, to the admission in evidence on the part of the plaintiff, of an instrument of writing, bearing date July the 11th, 1805, in the state of South *163 Carolina; purporting to have been executed by Joseph Milah, as a gift or donation of two slaves, and certain goods and household furniture, to one Sarah M`Guire. The court, however, admitted the evidence, and as we think, properly, for the reason assigned in the bill of exceptions. From that it appears, that previously to the offering this last paper, the court had admitted evidence, on the part of the defendant, to prove fraud and want of consideration; and they then admitted the paper thus objected to as rebutting evidence. Had it been offered, and received by the court, as is objected by the counsel of the defendant in error, as evidence of title, it would, under the petition, have been inadmissible; upon the ground of a variance between the allegation and proof. But it was distinctly received, only for the purpose of repelling the parol evidence, which had been given to prove fraud and want of consideration; by showing that Milah had, as early as 1805, manifested a disposition to give the property to the plaintiff's wife, who, as appears from the record, was the sister of the former wife of Milah, who had died without children: the plaintiff's wife is the person named as donee, in the deed before stated, as having been executed by Milah, in South Carolina.
When we speak of the plaintiff in this connection, we mean the plaintiff in the court below, the now defendant in error.
After the verdict was rendered, the defendant in the court below moved for a new trial, for sundry reasons stated on the record, which was refused. The granting or refusing of new trials rests in the sound discretion of the court below; and is not the subject of reversal in this Court. Without making further citations in proof of this proposition, it will be sufficient to refer to 4 Wheat. 220; where it is said by the Court, that the first error assigned is, that the Court refused to grant a new trial: but it has been already decided and is too plain for argument, that such a refusal affords no ground for a writ of error. The judgment of the court below is vested, and is therefore affirmed, with costs.
This cause came on to be heard on the transcript of the record from the circuit court of the United States for the eastern district of Louisiana, and was argued by counsel. On consideration whereof, it is now here adjudged and ordered by this Court, that the judgment of the said district court in this cause be, and the same is hereby affirmed, with costs.