
    Samuel Foster, et al. v. Samuel Cherry.
    In an action of trover for certain negroes, where they had been formally delivered to the plaintiff, and a deed executed to him at the same time for them, he cannot recover, unless he produce the deed, or show the loss of it.
    Where a father had a deed written, of certain negroes, to his children, and he makes a'delivery of the negroes, and immediately afterwards executes the deed, this wiü be regarded as one entire transaction.
    Where a deed of negroes has been made to a person, and the property delivered, it will be regarded as a delivery to the uses pointed out in the deed.
    This was an action of trover, for a negro, Joe, tried before Mr. Justice Johnson, at Pendleton, Spring Term, 1820.
    The plaintiffs claimed under a gift from their father, John Crow Poster, made in 1808, who had sold Joe to the defendant, in March, 1816, for a full and valuable consideration.
    Reuben M’Kenzie, called by the plaintiffs, swore, that in October or November, 1808, he was sent for by John Crow Poster, and went to his house, and he stated to him that he was about to give some negroes *to his children, • abfcsj plaintiffs, all of whom were then young, and had called on him to be a witness to the transaction ; and that he then made a very formal delivery to them of several negroes, and among them the negro Joe, by declaring, that “ for the natural love and affection he had for them he gave and delivered,” &c.
    A number of witnesses were sworn, and a great deal of evidence given on both sides, on the question, whether this gift was fraudulent or not, and, finally, John M’Croskey, called by the defendant, stated, that he was present when the delivery spoken of by the witness, M’Kenzie, was made, and agreed with him as to the time and manner of it. But he added, that John C. Poster had before procured a deed to be written, giving the negroes to his children, and as well as he recollected, it contained some provision for his wife, in relation to the same negroes, and that he, immediately after the delivery, executed the deed, and himself and M’Kenzie subscribed it as witnesses, and that it was delivered to Mr. Samuel Earle, to have it recorded in the clerk’s office, and that he had not seen or heard of it since.
    The witness, M’Kenzie, being called again, and re-examined, accorded in this further statement of facts, except that he had no recollection that the deed contained any provision for the wife. It was also proved, that John Orow Poster retained the possession of Joe, up to the time of the sale to the defendant, and that the plaintiffs were then minors, and lived in his house.
    The plaintiffs being unable to prove the loss of the deed, or to give of it any account whatever, the counsel for the plaintiffs, on the suggestion of the presiding Judge, that without some proof on this point, the verdict must be for the defendant, suffered a nonsuit, with leave to move to set it aside, on the ground:
    That the delivery anterior to the execution of. the deed, vested the right of property in the plaintiffs, and they had their election to rely on the parol gift and delivery, or the deed.
   *369] *The opinion of the Court was delivered by

Johnson, J.,

(who tried the cause.) The position assumed in the grounds of this motion, no one will attempt to controvert, for where there is a parol gift and a delivery of a chattel which may be passed without the solemnity of a deed, no subsequent Act of the donor, by deed or otherwise, can change or alter the right vested by it. But I think it equally clear, that it has no application to this case.

The delivery of a chattel does not necessarily vest an absolute and unqualified. property in the receiver. The giver has the right to direct to what uses and by what tenure it is to be held. In this case, it is contended, that the delivery and the declaration accompanying it, prove the intention of the donor to give an absolute and unqualified property. But this is not the best evidence the nature of the case admitted of; there was a deed executed at the time, and no account has been given of it, and the witnesses disagree about the contents of it.

It is said, however, that the delivery was prior in point of time to the execution of the deed, and therefore succeeded it. When we are prepared to exclude a part of the res gestee, or to garble evidence by admitting that which makes against a party, and excluding that which makes for him, this doctrine may be held, but not before. It will be recollected, that, in this case, the donor had procured the deed to be written before, and executed immediately after, the delivery; now, either, without the aid of the other, would have passed the property, but both constituted one entire transaction, and the deed, being a part of the res gestae, was the best evidence of the intention of the parties, and ought to have been produced or accounted for.

M’Duffie, for the motion. Davis, contra.

The fact, that the witness thought the deed contained a provision for the wife, furnishes, I think, a practical illustration of the correctness of the rule. If this be true, it may contain provisions inconsistent with their right to recover, and probably does, as the *wife is still liv- r^qirn ing. I would not willingly impute to any man the madness and L ° folly of making a formal and unqualified gift to his children, when he had before procured a deed to be written, declaring his intention inconsistent with it, and immediately, in the same moment affixed his hand and seal to it. The delivery, therefore, cannot be otherwise regarded than as a delivery to the uses pointed out in the deed.

The motion must be discharged.

Coloock, Nott, RichARDson, and Gantt, JJ., concurred.

Hugeb,, J., absent.  