
    Charles Porter, ads. Samuel Ingram.
    
      When the premises of a deed of conveyance are complete and perfect and, the habendum repugnant thereto, the habendum is void. Donor gives to his daughter a slave, by the premises oj a deed, in the usual form, to have and to hold the said slave, after his (the Donor’s) death: Held that the gift took effect in presentí.
    
    The plaintiff gave in evidence a bill of sale from Daniel Porter to Joseph Ingram, dated 1809, and a bill of sale from Joseph Ingram to plaintiff, dated 1810; together with possession from that time till shortly before the action was brought. The defendant gave in evidence a deed of gift from Daniel Porter, to liis daughter Phebe Porter, wife of defendant, dated 1802, when Phebe Porter was a minor, living with her father Daniel Porter; which deed was duly executed, proved and recorded, and is in the following words: — “ To all to whom these presents may come — I Daniel Porter of the State of North-Carolina and county of Anson send greeting*.
    Know ye that I the said Daniel Porter, for and in consideration of the natural love and affection which I have and bear Unto my beloved daughter Phebe Porter, of the state and county aforesaid, and divers other good causes and considerations, me hereunto moving, have given and granted, and by these presents do give and grant unto the said Phebe Porter all and singular, one negro girl named Rose, to have, hold and ’ enjoy all and singular the said negro girl Rose, after my death,- to the said Phebe Porter, her heirs, executors and assigns, to the only proper use and behoof of her the said Phebe Porter, her heirs and assigns for ever; and I, the said Daniel Porter, all and singular the said negro girl Rose, to the said Phebe Porter, -her heirs, executors and assigns, against all persons whatever, shall and will warrant and forever defend, by these presents. In witness whereof I the said Daniel Porter have hereunto set my hand and seal, this 20th February 1802.”
    The court charged the Jury that the deed could have no operation before the death of Daniel Porter, and therefore ivas wholly testamentary.
    The jury found for the plaintiff.
    The defendant moved for a new trial, on the ground, that the charge of the Court was erroneous in point of Law.
   The opinion of the court mas delivered hy

Mr. Justice JIugcr.

The deed of gift to Phebe is formally drawn. The premises however appear to be at variance with the habendum. In the premises, Rose is given in presentí, the habendum is in futu-ro. When the premises, of a deed are not. complete- and perfect, resort must he bad to the habendum to ascertain the intention of the parties. It may t! .en limit or extend or even frustrate the premises. But when the premises are complete and perfect and the habendum is at variance with them, and they cannot stand together, the habendum is void. The first part of a deed has priority in law, as well as in fact, which is said not to be the case with wills, 3 Dyer, 272; 14 Vin, 51, 56, 100, 141, 145. If therefore the habendum to Phebe, after the death of the donor, be inconsistent with and repugnant to the gift in presentí, set forth in the premises, the habendum is void, and Phebe was entitled to Rose from the date of the gift. It is unnecessary in this case to determine whether the premises and habendum may not be reconciled, by regarding Phebe as taking Rose in trust for her father during his life and to her own use after his death; in either case, she is now entitled to Rose, if the deed was not fraudulent and Rose was delivered in conformity to its provi-" stons. The motion for a new trial is therefore granted.  