
    *Anglin v. Bottom.
    April Term, 1846,
    Rictunonfi.
    (Absent Brooke, J.)
    1. Slaves — Parol Gift of — Title of Donee. — On a parol gift of slaves, tile slaves must come Into the actual possession of, and remain with the donee, or some person claiming under him, to give to such donee a valid title to the slaves.*
    2. Same — Same—Same—Certificate of Lower Court-Appellate Practice. — when upon overruling a motion for a new trial, the court below certifies that the donor made an absolute gift of slaves to the donee, this is not sufficient to authorize the appellate Court to infer the actual and continued possession of the slaves by the donee, or those claiming under him, which is essential to his title.
    3. Same — Same—Same—Same—Same.—Such a certificate as to other personal property, would imply such a delivery as constituted a valid gift.
    This was an action of detinue brought in the Superior Court of Franklin county, by James Bottom against Robert An-glin, for the purpose of recovering three slaves, Kate, Nelson and Murphy. On the trial of the cause, the jury found a verdict for the plaintiff, which the defendant moved the Court to set aside, as being contrary to the evidence; but the Court overruled the motion, and gave a judgment upon the verdict. Whereupon, the defendant excepted; and the facts being spread upon the record, he applied to this Court for a supersedeas to the judgment, which was allowed.
    The material facts of the case are: That in the fall of the year 1808, the plaintiff Bottom intermarried with Mary, the youngest daughter of Frederick Rives of the county of Franklin; and that very shortly after the marriage, the said Rives, in the presence of the plaintiff, made an absolute gift to the wife of the plaintiff, of the ne-groes Kate and Nelson. That the negro Murphj is a child of Kate, born since the gift. That the plaintiff lived with his family, in the house of said Rives, he in the character of overseer and manager, and his wife in the character of housekeeper, from the time of said gift until about the month of March 1814. That the said negroes remained at the same place, during all that time _; the negro Kate, the principal part of the time, acting as a cook for the family. That Rives was an old man; and had no other child living with him, until the month of February 1814. That Rives, when the plaintiff was about to leave his employment, executed a deed, by which he gave said slaves to Mrs. Bottom, the wife of the plaintiff, during her life, and after her decease to her children. That this deed was duly executed and recorded. But it did not appear that the plaintiff was informed, either of the execution or '^record thereof: though it did appear, that about the year 1831, he stated, in the presence of the defendant, that he had but a life estate in the slaves. It appeared, further, that Mrs. Bottom was dead; and that she left issue only one child, the wife of the defendant. After the death of Mrs. Bottom, the defendant took possession of the slaves, without the assent of the plaintiff.
    G. N. Johnson, for the appellant.
    Leigh, for the appellee.
    
      
      1 Rev. Code, ch. Ill, § 51, p. 483, says : "No gift or gifts of any slave or slaves, shall be good or sufficient to pass any estate in such slave or slaves, to any person or persons whatsoever, unless the same be made by will duly proved and recorded, or by deed, In writing, to be proved by two witnesses at the least, or acknowledged by the donor, and recorded according to law. This section shall be construed to extend only to gifts of slaves, whereof the donors have, notwithstanding such gifts, remained in the possession, and not to gifts of such slaves as have at any time come into the actual possession of, and have remained with the donee, or some person claiming under such donee.”
    
   ALLEN, J.,

delivered the opinion of the Court.

The Court is of opinion, that the facts certified to have been proved at the trial, do not make out a valid title, by gift, to the slaves claimed, according to the true intent and meaning of the 51st section of the act concerning slaves, free negroes and mulattoes, 1 Rev. Code 432. It is certified, that the donor made an absolute gift of the slave to the wife of the defendant in error, in the presence of the said defendant; and that the defendant in error and his wife, at that time, resided in the house of the donor; and continued to reside there for some time thereafter; but that the slaves remained at the same place. There is no fact certified as having been proved, shewing any distinct act of ownership over said slaves by the defendant in error, prior to the execution of the deed of gift by the donor; and the actual possession held by the said defendant in -error, thereafter, was consistent with the terms of said deed. As no title to personal property passes by gift without delivery, the fact certified as having been proved, that an absolute gift was made, would, as respects personal property other than slaves, imply the proof of such delivery as constituted a valid gift. But in regard to slaves, unless the gift is made by deed or will duly proved and recorded, the statute requires that in addition to the gift, the slaves should have come into the actual possession *of, and remained with the donee or some person claiming under such donee, to make out a valid title. Such actual possession in the donee or some person claiming under such donee, is an essential element of title to slaves claimed in virtue of a gift not made by deed or will as aforesaid; and cannot be inferred from the proof of an absolute gift originally, and nothing more.

The Court is further of opinion, that the finding of the jury in favour of the title claimed under such gift, does not raise the presumption, that there may have been evidence before the jury, of the fact essential to the validity of the title so claimed, in the face of the certificate which purports to set out all the facts proved. Otherwise the appellate Court would be bound to presume in all cases, that there was evidence before the jury to justify the verdict.

It is therefore considered that there was error in overruling the motion for a new trial.

Judgment reversed with costs; verdict set aside, and new trial awarded.  