FROM CASWELL. The propriety of the instructions depends altogether upon the correctness of the assumption that the gift, being by parol, was void as against the creditors who had executions. For nothing can be more certain than that the statute of limitations cannot run until the right hath accrued or the action arisen. I do not speak of the gift being fraudulent within the statute of 13 Eliz. It is indeed plainly so; for it is past my conception how a father, although not indebted at the time, nor for a long time after, can honestly give an infant child, living with him, a slave a few days old, and honestly keep the (329) possession of the slave, using her as his own, supporting her and several of her children through the long period of twenty-seven years, eight of which were those of pecuniary embarrassment, which ended in insolvency. Such a possession was so manifestly deceptive to the *Page 208 world as to be covenous and fraudulent as to his creditors. If it be said that it is doubtful whether the father or the daughter had the possession, that doubt is a fraud upon the donor's creditors; to which I should think it hard to make a jury shut their eyes. The donee ought to have a clear, separate, and unequivocal possession, so that nobody could be either deceived or mistaken.
But the Court took the point out of the case by informing the jury that the gift was void because it was by parol. So that we are to view the case as if the daughter had such an exclusive possession as would indicate a bona fide gift. I confess that the best convictions of my understanding are opposed to the position, and that it is revolting to my feelings. Yet under the construction put upon our act of 1784 (Rev., ch. 225, sec. 7) I believe the Judge was right. I have not a doubt that the act was intended to be one of frauds and perjuries, and to declare that all conveyances of slaves, whether voluntary or for value, should be void to all intents and purposes. It, unfortunately, did not get that meaning put on it at first; and conveyances by parol were held to be good between the parties. This has often been since lamented by several able judges; and the legislature has by successive acts attempted to correct it. The omnipotent one of 1806 goes to the root of the evil, as far as relates to gifts of slaves; and that of 1819 (Rev., ch. 1016) was probably intended to embrace sales, though its words extend only to contracts to sell. One error naturally leads to another. When the act of 1784 was held not to void the contract altogether, it seems to me that it resulted in this — that it had no meaning whatever in (330) connection with creditors. Possibly it might be strained to supply the defect in the Stat., 27 Eliz., in favor of purchasers, because that statute did not extend to personal chattels, and a purchaser from one in possession (as the vendor must be) of such a chattel ought not to be postponed to a prior voluntary alienee. But even this was a hard, very hard, measure of justice where the gift had been bona fide and by one not indebted, and the donee had taken and held the possession for a great length of time. It would be a fraud in the donor, greater than that committed in making the gift, to avoid it by a sale, upon any freak, and after the donee had settled in life, reared a family, bred up a numerous progeny of the slaves, and got credit on them as his property. The express words of the English statute compelled their courts to put this interpretation on it, as to lands. But two of the most eminent of the judges (Lord Mansfield and Lord Ellenborough) have expressed earnest complaints of the rule which the letter of the statute imposed on them. I do not see a reason why our Courts, without such a legislative mandate, but by mere construction, should have adopted it. But it has been by repeated decisions, and particularly after able arguments, in *Page 209 McCree v. Houston, 7 N.C. 429, and Watford v. Pitt, Ib., 468. In reference to creditors, however, there was no necessity for a new rule, because if the conveyance was not bona fide their interests were sufficiently protected by the 13 Eliz., and our own act of 1715. Rev., ch. 7, sec. 4.
When it was determined that the gift was not merely void as a parol gift — that such a gift was in form sufficient to pass the title — it seems to me that the only thing then remaining which ought in reason to affect it was that it was founded in bad faith; in other words, that it was fraudulent. How could it be fraudulent as to creditors when the donor had no creditors at or near the time of the gift; or if he had, he had likewise ten times as much other property as would (331) satisfy them, and the donee took immediate, exclusive, and notorious possession? Without such possession in the donee, and such ability in the donor, the gift, though made in the most approved and solemn form in writing, could not and ought not to stand. With them it ought to stand in any form that will in law pass the title. For there is no medium which my reason can appreciate as just between those laws which declare that stipulations, except in a certain form, shall not constitute a valid contract to any purpose, and those which declare a contract, in whatever form, void as against particular persons to whose injury it was designed or had a tendency to operate. Yet, as it was obvious that creditors were sufficiently secured before against fraud, as the statute recited that many persons had been injured by secret deeds of gift and for the want of formal bills of sale, and as the parties were said not to be within the mischief, it became necessary to put some other meaning on the act. Then came the construction that a parol gift, good between parties, and without fraud as to creditors, was, nevertheless, as to the latter void. This turns the act into the legislative anomaly of being neither a statute of frauds nor of fraudulent conveyances. It avoids contracts which are good, so far as their validity depends on the intent; and it avoids them in favor of a class of persons having no more merit than he, the donor, has, against whom they are valid. As to the donor, the parol gift stands firm; as to his creditor, it is void for want of form, and for that only. The consequence is that a creditor whose debt is contracted at any distance of time, and not on the faith of this property, may defeat the gift; because, as to him, it is void for want of form, precisely as a parol gift, since 1806, is void as against the donor himself. Even the death of the donor would not convert the gift into an advancement as against a debt contract thirty years afterwards, for the want of such a proviso as is contained in the third section of the statute of 1806. Thus the act is turned (332) into a statute of frauds and perjuries, as relates to the creditor, *Page 210 while it is not so as to the donor, and while the gift is sine mala fide with respect to the whole world, being from a parent amply ably to pay his debts, and made in the discharge of the first natural duty, that of advancing his child, who takes possession and retains it for thirty years. And what is stranger still, if anything can be, the same doctrine must, until the act of 1792 (Rev., ch. 363), have been applied to parol sales; for gifts and sales were put upon the same footing. Yet such is the law as it hath been too often adjudged for us now to deny. Without mentioning other cases, it will be sufficient to cite the remarkable and leading ones of Knight v. Thomas, 2 N.C. 289, and Sherman v. Russell, 4 N.C. 79. However erroneous the original construction may appear to our minds, at this day, it is too thoroughly settled to be disturbed. I am firmly convinced that it was palpably erroneous. But I subdue myself into a practical obedience to the authority of a long train of the decisions of my predecessors, although my own understanding rejects the reasoning upon which they are founded, and I see them now productive of evils which were not and probably could not have been foreseen. The Court below was bound to lay down the law as it did, and this Court is bound to follow. And the act of 1820 (Rev., ch. 1055) does not alter it. Probably the proviso was pointed solely at the act of 1806, and intended to prevent possessions, under gifts absolutely void, from ripening into title. But it is more extensive, and embraces "the law then in force, which required all gifts of slaves to be in writing." So that as to those against whom, by any law, a parol gift was invalid a possession under it remained inoperative by the express words of the act of 1820.
PER CURIAM. No Error.
Cited: Pickett v. Pickett, 14 N.C. 10, 15.
Dist.: Jones v. Young, 18 N.C. 354.
(333)