
    SPARTA:
    AUGUST TERM, 1835.
    Douglas vs. Morford and Ferrell.
    As between the parties themselves the title to a slave passes by force of the bill of sale and delivery of possession, without registration, under the act of 1784, ch. 10, sec. 7.
    Under the act of 1784, eh. 10, sec. 7, a sale of a-slave is void and passes no title as against creditors and purchasers of the grantor without a bill of sale proved and registered.
    The proviso in the register act of 1827, in favor of creditors and purchasers, refers to creditors and purchasers from the grantor.
    Abill of sale for a slave, made previous to the act of 1827, ch. 59, not duly registered was void, as to creditors or purchasers from the grantor, whether they had notice or not of the existence of the deed. There being no exception.in the statutes against those having notice, the courts can make none/
    This was an action of trover, brought to recover negro Ned, a slave. John Douglass made a bill of sale to William Douglass, his father, for a slave, on - the 24th of November,. 1828; it was not registered until the 6th of December, 1830. On the 2nd of December, 1830, a creditor had levied upon the slave, as the property of John Douglass; the slave was sold, and the defendants purchased at the execution sale. William Douglass offered to prove, on the trial, that he purchased and paid for the slave a full and fair price, to wit, four hundred dollars, and that possession was then immediately delivered to him; which he retained up to the levy. But the court refused to hear the evidence, declaring the bill of sale the best evidence of title, and that as to John Douglass’ creditors, it was void for want of registration within .twelvemonths after its execution. ‘ To this opinion of the court the plaintiff excepted; and the jury having found a verdict for the defendants, and a new rital being refused, he prosecuted an appeal in the nature of a writ of error to this court. The cause was argued at a previous term of the court, at which time a majority of the court held, that a bona fide, sale and delivery of possession, without registration, was valid to pass the title as against creditors and purchasers who had notice of the sale. The defendants in error presented a petition to rehear the cause, and the court being divided in opinion, the judgment was set aside and another argument ordered.
    The cause was argued very fully by A. B. Lane, S. Turney, and M. Taul, for plaintiff in error.
    
      J. Rucks, for defendants in error.
    The question in this case is deemed a very important one, and as such it has been considered by the bar and the court.
    If the act of 1784, ch. 10, sec. 7, does not apply to a case like the present, what case does it apply to? Is it not wholly repealed? If the opinion, originally given in this case, prevails, no man will hereafter register a bill of sale m the State, for his title will be lust as good without ... , , . . . . . J ° . .... doing it, and the whole registration laws, as to slaves, will be^Pendered of no avail. The act of 1789, ch. 59, is imperative, if there be a bill of sale or deed of gift, it shall.be recorded, or be void.! The act of 1827, ch. 59, under which Douglass registered his bill of sale in this case, provides, that if it is not registered within twelve months from its date, it may be registered at any time thereafter, but shall not affect the right of -creditors, &c.
    It' is necessary in deciding this cause to give a construction to this act'; John Douglass., made a bill of sale to his father, the plaintiff, on the 24th of November, 1828, it was not registered until the 6th December, 1830. The creditor had levied upon.'tne-negro on the 2nd of December, 1830. .The meaning of,the law is, that if the bill of sale is not registered within twelve months from its date, it may be afterwards registered, but in that case, shall not affect the rights of creditors. It is no argument to say, that the legislature intended to make the bill of sale void, but to leave the right good to the bargainee. This abstraction of the right from the instrument conveying it, never .occurred to the legislature, and is equally repugnant to the statute, for it equally affects the rights of the creditor. I therefore insist upon .this statute as conclusive, upon the rights of these parties.
    . It has never been doubted, that a parol'gift of slaves, or a sale with possession, would pass the title as between the parties; this is decided in Cains vs. Marly, (2 Yerg. Rep. 5E!3,) but that case goes no farther; it does not decide the effect of such sales or gifts, as to creditors or subsequent purchasers.
    The whole of onr registration laws put land and negroes upon the same ground, and apply to tlyem the same language, so far as creditors'or subsequent purchasers are concerned, and the decision of this court, in Washington vs. the Bank, and other cases, are -direct authorities in this ease.
    
      Jn the case of Davis vs. Mitchell, the plaintiff claimed' , . r . 1 , . to have had possession tor three years, and the question was, whether that would give a good title against a phr-chaser. But that is not the question in this case. The registration laws do not advert to possession, and are not to be superseded by it; possession of land for seven years, or of negroes for three years, may give absolute titles against creditors; but this is by force' of the statute of limitations, which stands with, and is not repugnant to the registration laws.
    ' In the case of Davis vs. Mitchell, and that of Cains vs. Marly,'this court recognized the act of 1784, cli. 10, sec. 7, as being in force. If we take this statute de-novo and construe it for ourselves, it is impossible to doubt but that this court would follow the Virginia, Kentucky and United States courts. If we are compelled to take it with the construction that North Carolina has put upon it, it is important to look narrowly into that construction, for this court will not go farther than North Carolina herself has gone.
    In Arrington vs. Arrington, i Ha3r. 1, (1789,) it is decided, that a parol gift is good between the parties themselves. In Knight vs. Thomas, 1 Hay. 289, (1796,) negroes had been given before the debt was contracted. “The jury found a verdict for the plaintiff, as to one negro, who had been delivered in the presence of witnesses several years before.” It was admitted by the court, that a parol gift, under this statute, is good, as between the parties themselves, but void as to precedent and subsequent creditors; and granted a new trial as to the negro, the possession of which had accompanied and followed the gift. In 2 Hay. 56, 57, (1789,) the courtrecognized the same construction, and state it most distinctly, that between the parties themselves a parol gift is good; but if a creditor or a purchaser intervene, there must be a bill of sale, and it must be proved and recorded. 2 Car. L. Rep. 271: N. Car. T. Rep. 38: 3 Murph. Rep. 429: 1 Car. Law Rep. 467.
    This, then, is the construction, that comes to us with the statute of 1784. It is conclusive, that the court will not dispense with either a bill of sale or registration, when a creditor or purchaser is involved; and it is impossible to read the statute without being sensible, that the court had gone a great length in dispensing with a hill of sale, even as between the parties themselves.
    Have the courts of Tennessee ever changed or altered the construction given by the courts of North Carolina? I can find no case, and I think it may be safely said, judging from the uniform practice of this court, in expounding statutes, that they would rather.retrace the decisions of North Carolina, in dispensing with a bill of sale between the parties thepselves, than to go farther in frittering away a positive law by construction. It is therefore insisted, there is no precedent for the opinion first given in this case, but that the precedents are directly against it; and it is respectfully submitted to the court, whether it does not overrule the above decisions, and in effect repeal the statute of 1784 itself. If we are right in this, the charge of the court was strictly correct; it was the duty of the court to expound the legal effect of this bill of sale so registered, and of this judgment and execution so levied. The circuit court was of opinion, that the right of the creditor must prevail, the levy being before the registration. The plaintiff then offered to prove, that he had paid four hundred dollars' for the negro, and had had him in possession from the 24th of November, 1828, up to the time of the levy, to wit, 2nd of December, 18^0. The judge thought that payment of the money did not supersede the registration laws, as to a creditor, nor did two years possession — and the ques-is, did he err in this?
    Can it be insisted, that the law does not require all those bills of sale to be registered, taken on bona fide 
      Purc^ases and payment of the money? If this be so, what bills of sale, I would ask, does it require to be registered? It must be deeds of gift and mala fide purchases. How absurd, to make those void as to creditors; if not registered, which are void, whether registered or not.'
    The act of 1807, ch. 85, sec. 4, requires all bills of sale, for slaves, to be proved within one year from the date thereof, and be registered, otherwise to be void as to creditors or subsequent purchasers. This is imperative, that all shall be registered, or be void as to creditors, &c. Can the court make exceptions in the statute, and say, that bills of sale, where the money has been paid and possession taken, need not be registered? This would be contrary to the settled and uniform practice of this court in expounding statutes. Will possession supersede registration? There is no word in the statute countenancing such an idea. Possession by a donee short of three years will not hold against a creditor or purchaser, even with registration; then it is clear, that possession will not do without the bona fide purchase. But payment of the money, is as good without possession as with it, under the registration laws; for in every case, where a man might buy a negro and take possession of him, he might advance money upon him and take a mortgage properly drawn and registered, and leave the negro with the vendor; for in every case in which a vendor is so unin-cumbered, that he may sell his negro and deliver possession, he may mortgage him and retain it.
    This shows conclusively, that the registration laws do-not advert to possession, but to the right. The confusion arises from that class of cases under the statute of frauds, where possession is the evidence of the right. We bring these cases up and blend them with the exposition of the registration laws, and they immediately bring us to the result, that every right, good against a creditor, &c. under the statute of frauds, shall be good under the registration laws; that every title bad, under the statute of frauds, shall be bad, notwithstanding the registration laws. This, if I understand it, wholly nullifies and expunges from our code all the laws requiring slaves to be regis-iered. '
    These laws do not conflict with each other; a purchaser or donee may have a good title under the registration laws,, but bad under the statute of frauds and e con-verso. To prevail against a creditor, his title must be good under both, for under the statute of frauds, possession has nothing to d'o with it. It stands upon the naked rulé of the law,, regulating the whole community, and from which no man is exempt, unless the possession has continued three years with the donee, which may perhaps give him a title under the statute of limitations, against the statute of frauds, also against the laws requiring registration; but this last is a solemn question deserving much consideration.
    Is it thought so hard a matter, that' a man should lose his.negro, by failing to register his bill -of sale? Do not men every day lose their lands, before this court, under the,very same laws? If the legislature choose to require deeds and bills of sale to be registered, and in default, to make them void, as to creditors, this Court cannot change the law, nor dispense with it as to either. This case, itself, shows the wisdom of the legislature in requiring registration.
    John Douglass had determined to .evade the payment of a debt, which he was bound for, made this bill of sale to his father, upon his parol promise, to pay debts for him; no consideration passed, no debts were mentioned, but one to Doyle, which may have been ten or fifty > dollars. After the writ was executed," he came into court and acknowledged the bill of sale, put it in his pocket, and never would have registered it, but for the levy. In the mean .time, the negro was used as suited the mutual convenience of father and son, and to save appearance; how could this credjtor tell that the-father hada secret bill of sale for the negro? The right stood upon the record in the name of John Douglass, the possession was equivocal; any one would have trusted John on the faith, that the negro was his; and after the levy, the father spreads the hill of sale upon the record, pretending, that he had paid the enormous price’of four hundred dollars for this negro. This is emphatically a secret bill of sale, within the act of 1784, a secret and covinous conveyance between father and son, within the statute of frauds. It is to prevent the getting up of such secret deeds of gift and bills of sale for slaves, between families and others, by which the community may.be deceived, misled and defrauded, that the registration laws were enacted; If parties intend to act fairly and honestly, they are willing to come forward and register their titles, mortgages, &c.; if unfairly, the rules ought not to be relaxed in their favor.
    If the registration laws are repealed, or rendered nugatory, frauds will be practiced with facility, perjury multiplied, and no man will know from whom to take or buy negroes.
    
      ■M. Taul, in reply,.
    The counsel for the plaintiff in error, believing that the very gist of the controversy between the parties in this suit, had been so repeatedly before the court, and the principles which governed it so often settled, when the cause was called, declined making an argument; and the counsel on the other side did the same; both, doubtless, being equally' confident that the law was on his side.
    I will not hazard an opinion, as to the “uniform practice of the State, and the'understanding of the bar,” not knowing what that practice may have been, or what the understanding of the bar may be. If either the “practice” of the country, or “understanding” of the bar, however, could be appealed to, as the proper construction .of the, several acts of assembly on the subject, T would have no fears of a decision in favor of my client. The “practice” of the State, in relation to the sale and transfer of slaves, has probably been governed by the “understanding of the bar.” How many of the thousands, and tens, of thousands of bills of sale of slaves, which have been made in this country, have been registered?- I will venture to say, not one in a thousand. If, then, practice should be resorted to, as the rule of construction, it would be against the defendant in error.
    Believing that the court has well considered all the various acts of the legislature, in relation to this subject, and have .given them the proper construction, I will not undertake to review and examine the cases referred to in the. argument of defendant in error, with critical nicety.
    It is emphatically asked, “If the act of 1784, ch. 10, sec. 7, .does not apply to a case like the present, to what does it apply?” Answer; To all cases," where actual possession does not accompany the gift-er sale. It was-always the law, that the owner of personal property might sell) or otherwise dispose of it, as he thought proper, provided the rights of others were not infringed.
    ■ A person not indebted,, may give away his property to whomsoever he pleases. If the donor retains .possession, the gift is not .valid, as to creditors and subsequent purchasers, unless the gift is evidenced by writing, and that registered. A person indebted, cannot give away his property, to the prejudice of his creditors; but, a person indebted, may sell his property, and if the .sale is bona fide-there is no right qf a creditor infringed.
    All contrivances to cheat, hinder, delay or defraud creditors, are odious to the common law; and were, to all intqnts- and purposes, as much under its bail, before the act of 13th Eliz. as they have bee_n since repugnant to that statute, made to protect creditors. That act, and the 27th Eliz. have been substantially reenacted by the legislature of Tennessee. (Vide act. of 1801, ch. 23, sec. 1, 2, 3: Digest, p. 128.) This act incorporates other important provisions; but no legislative act is to be .. . 1 . . . c + r , *1 found restraining the owner oí property trom honestly selling it for value; and in all controversies between the creditors and others, that should be the question. That is the question; not whether'there is record evidence of title, but whether there has been a bona fide sale. A bill of sale, proved or acknowledged, and registered without possession, is prima facie evidence of the sale and its fairness, but is not conclusive. Possession and payment of the consideration is not conclusive. In either case, the sale may have been fraudulent, and can be set aside, if such be the fact, by a creditor of the pretended donor dr vendor. These principles, it is believed, are too well established, to require for their support a reference to particular adjudged cases; they are the law of the land.
    We hear much complaint about the “rights of creditors,” and these three words have doubtless misled many of the profession, and led to erroneous impressions of the registration laws. These laws never were intended to enlarge the rights of creditors, but merely to protect them, and that in fact is the only meaning of the savings in the registration acts, “it is only intended to “exclude a conclusion.” They direct the timé, &c. of registering,, alter the former laws, make valid deeds, bills of sale, &c. if registered in a given time, extend the time, and declare-that they shall be valid, but carefully guard against the conclusion, which might be drawn, that it was intended to impair the right of creditors.
    Neither the act of 1807, or 1827, referred to in the argument of Mr. Rucks, is in conflict with the opinion of the court, heretofore expressed in this casé. The act of 1807, (Vide Digest, 60,) was only intended to give further time, and prescribe more particularly the manner, &c., in which deeds and other instruments of writing, “required by law” to be registered should be proved, &c. The same may be said of the act of 1827, (Vide Digest, 64.) It does not prescribe or direct, what, instra-ments of writing .shall be registered, hut introduces a new . . , , , r , • . , , principle, and speaks ot those instruments required by the laws of this State to he recorded. This act of 1827, makes valid all deeds of conveyance, which may be registered at any time, and when so registered shall be as good and valid in law as if registered within the time prescribed by law. But in the mean time, if the right of a creditor has attached, that is saved; and this saving of the right of a creditor is seized upon, as attaching to property, the transfer of which is not evidenced by writing, recorded, &c. This is the fruitful source of error upon this subject, not ascertaining what bills of sale are “required by law” to be registered. The acts of 3 807 and 1827, referred to in the petition, give no direction ' as to that. I have sought in vain for the act, which directs.-all transfers and sales of slaves to be in writing and that registered. The acts of 1784 and 1789 have been properly construed, not to extend to bona fide sales for slaves, accompanied with a delivery of possession; and. it would be just as natural to construe the acts of 1807 and 1827, to require a bill of sale, and that to be registered, for a horse, or any other chattel, as of a slave; for personal property is spoken of in connection with slaves and immediately succeeding.
    I consider the act of 1801, ch. 25, (Digest, 128,) as settling the law upon this subject. All fraudulent conveyances, transfers, &c. of property,' are void as to creditors; all bona fide transfers and sales, for a valuable consideration, are valid against all the world. This act renders a bill of sale wholly unnecessary, if there has been, a bona fide sale and possession delivered.
    The true question is, was the sale bona fide, or was it fraudulent? The doctrine of presumptions has been, in a great measure, exploded by this court. A sale may be bona fide and the vendor remain in possession; his possession is not now, in Tennessee, a fraud per se.'
    
    The case of Knight vs. Thomas, (1 .Hayw- 289,) referred to by the other side, is very loosely reported. It , / „ , ’ T, \ , J , r, , does not inform us, that Mrs. Knight ever had the possession of the slaves. The report says, “they (the ne-groes) had been conveyed before by parol, &c. One had been delivered in presence of witnesses, but it does not say that she kept the possession after the delivery. The case referred to in 2 Hayw. 86, is believed to be a clear case against the defendants in error. The court does not say, “that if a creditor or purchaser intervened, there must be a bill of sale, and that proved,” &c.; but it does say, “Had it (meaning the gift) been secret, and had a creditor or purchaser been concerned, a deed of gift would have been necessary;” ergo, if not secret no deed of gift necessary. I have always considered the act of 1801, as being conclusive of the question. I also understand the decision of the court, in the case of Reed vs. Staten, 3 Hayw. 159, as settling the question in the same way. At p. 163, the court says, “The sale was not rendered notorious by a bill of sale, proved and registered as required by 1784, ch. 10, sec. 7. There is no evidence of a sale, which can be supported against a creditor. The property remained still, as it was before, that is, in the possession of the pretended vendor. If the possession had been changed, the sale would have been notorious, that is the office of registration; but rendered unnecessary, when it is performed by change of possession.
    I deem it unnecessary, before this forum, to discuss the facts of the case, not connected with the legal question. When we shall come before a jury, with all the facts, it will be time enough to enter upon their discussion.
   Catron, Ch. J.

delivered the opinion of the court.

As between the parties, it is admitted by the argument, the title passed, and that the sale of the slave was valid, by force of the bill of sale, and delivery of possession, without registration, as holden in Cains vs. Marley, (2 Yerg. Rep. 583,) and Davis vs. Mitchell, (5 Yerg. Rep. 287.)

Such has been the construction given' to the act of 1784, ch. 10, sec. 7, with what propriety is 'not at this day open to inquiry; but it is insisted, the construction has not extended beyond dispensing with registration as-between the parties to the contract, withdtit which it is still void as to the creditors of the grantor; -and so is every gift or sale of a slave not in writing, proved and registered. Certainly the statute is most emphatic, “that all sales of slaves shall be in writing, attested by at least one creditable witness, or otherwise shall be deemed invalid: and all bills of sale of negroes, and deeds of gift of any estate of whatever nature, shall, within nine months after the making thereof, be proved in due form and recorded, and if not so done shall be void.”

The act of 1807, ch. 85, requires .two witnesses to attest and prove the deed. Thus stood the register acts, controlling the effect of bills of sale, when that of 1827, ch. 59, was passed, subject to the immediate provisions of which, the bill of sale in controversy was made and registered; and on this construction mainly must this case be rested. It declares, “That, bills of sale thereafter executed, and not registered within twelve months, (1819, ch. 47,) may at any time be registered, .and when ;so . done, shall be good and valid in law, as if registered within'twelve months after their execution: provided, that nothing in the act contained, or such after .registration, shall affect -the rights of creditors.

1. The exception in the proviso of -the .act of 1827, refers to the creditors of the grantor. Pearce vs. Turner, (5 Cranch. Rep. 154:) Morgan vs. Elam, (4 Yerg. Rep. 375:) Washington’s lessee v. Trousdale, (Mart. & Yerg. Rep. 388:)

2. The act of 1827, does not expressly repeal any previous register act, but gives effect to deeds from the date of their execution, as between the parties, if registered after the time prescribed by law. The law referred' to, and intended partially to be altered by the legislature, was that of 1819, ch. 47, which provided, “that deeds' and instruments required by law to be registered, should be registered within twelve months from the execution thereof, when they should be valid and take effect as to parties, and as to creditors and purchasers from their execution; but if not registered within the prescribed time, then they might be registered at any time, after the expiration of twelve months, in which case, such deed or' other instrument, should only operate and take effect from the time when registered.

This statute made no exception; the deed, as between the parties, took date from the time of registration, if after the expiration of the year: and an ejectment brought could not be sustained by the relation of the deed, if registered after the suit commenced, and after the year had expired. So this court held in the case of Hay’s lessee vs. M’Guire, et al., and this die act of 1827 altered: but creditors are excepted from the provisions of the statute; as to their rights the act of 1819, ch. 47, is in full force, and furnishes the governing rule: when then did the bill of sale from John to William Douglass take effect, as against the execution creditors of John? It was executed the 24th of November, 1828, and registered the 6th of December, 1830, more than two years after its execution, and four days after the creditor had levied his execution upon the slave; it operated and took effect as if executed on the 6th of December, 1830, when the creditors’ lien was fixed by the levy, and the special property and legal title in the officer, which he conveyed to the. defendants.

The true construction of the act of 1819, ch.. 47, was settled in the important and litigated case of Washington’s lessee vs. Trousdale and the Banks, (Mart. & Yerg. Rep. 391,) which is followed in this case. We therefore aeree with the circuit judge, that the bill of sale was the best evidence of title, and as against the creditors of John Douglass, under whom the defendants claim, that it is void; and the judgment below must be' affirmed.

Judgment affirmed  