
    Williams vs. Walton.
    As between the party themselves, a bill of sale, proved and registered, is not necessary to pass the title to a slave.
    The possession of a negro by a guardian, or by. the father, as natural guardian for an infantj^for three years, held in good faith, will vest the title to the slave in the’infant, whether the right was given by a strang'er or by the father himself, to the infant.
    This was an action of trover, brought on the 3d of March, 1832, to recover the value of Sarah, a negro woman slave and her children. The proof shows that the mother of Sarah wásonce the property of plaintiff’s grandfather, and that his father, Marmaduke, and his uncle, Morgan Williams, were the executors of their father’s will. There was evidence going to show that the mother of Sarah was pürchased from, or given to Marmaduke by his father. There was evidence tending to show that about 1809 or 1810, Marmaduke Williams, the father of the plaintiff, conveyed the negro, Sarah, to his brother, Morgan Williams, by bill of sale, to whom he’delivered the possession, of all'which the defendant knew. On the 16 th of February, 1811, Morgan Williams conveyed said negro to the plaintiff by a deed of gift, which was proved at the March term, 1811, of the Smith county court, by one witness, the- defendant, James Walton, and registered the 10th of May- following. Upon the execution of this deed of gift, the possession of the negro was delivered to the father of the plaintiff, Marmaduke Williams, the plaintiff being then an mfjmt. Marmaduke Williams afterwards mortgaged the negro to one bmith, who saw and read the deed, ox gift from Morgan to the plaintiff, and he sold her to the defendant, Walton. Tlie negro was mortgaged to Smith about the year 1817 or ISIS, There was much evidence tending to show the fairness and unfairness of the transaction between Morgan and Marmaduke; hut it is not necessary to recapitulate it, as the case was not decided upon it. The circuit judge charged the jury that, “if Marmaduke and Morgan Williams were executors of their father’s will, they had each an entire control over the property of the estate, and a gift by either would transfer the title to the donor, so far as the executors were concerned. If, therefore, the negro girl in controversy was the property of the estate, Morgan’s gift of her to the plaintiff was binding on him and Marmaduke both; but it was not binding on a subsequent purchaser for value from either of them, unless it was by deed, duly proved by two witnesses, and registered. This deed of gift being proved by only one witness., is void. If the negro girl belonged to Marmaduke Williams, and he sold her to Morgan for an inconsiderable amount paid in cash, and took his note for the material part of the consideration, and afterwards the note is given up and the hill of sale destroyed, under an arrangement that Morgan should convey to the plaintiff, which was accordingly done; this would amount to a recision of the contract of sale, and a voluntary settlement by Marmaduke on his child, through the instrumentality of Morgan, and to he good against Walton, as a subsequent purchaser for value, it must have been evidenced- by a duly registered deed. As the parties would thus have divested it of the character of a sale, by a giving up of the consideration by the vendor, and a giving up of the evidence of title by the vendee, it would be unnecessary to enquire what would be the consequence of Walton’s purchasing from Marmaduke with notice of such sale. If the original character of the .transfer of Marmaduke to Morgan was, that Morgan was constituted a mere trustee for the plaintiff, no considera- „ . f, , tion passing from him to Marmaduke, then the convey-anee should be evidenced by a registered deed; a voluntary conveyance to the child, directly or' indirectly, could only be made good against a subsequent purchaser by being duly proved and registered. The purchaser’s having notice of it can make no difference; registration is the only notice which the law deems sufficient. Nor does the purchaser’s having no registered deed, render his de-fence unavailing. The delivery of possession will not do as a substitute for registration,'-unless, the possession is held openly and distinctly long enough to confer a title of itself, that is three years. If a third person had given a nbgro to the child living with its father, the father’s possession, as natural guardian, would confer the title on the child, but when the gift is directly from the father to such child;'or indirectly by first delivering it to a trustee, and then that trustee within three years, redelivering to the father to hold for the child, that is .not such an open re-7 maining in -possession by the donor as will do against a purchaser in place of registration, and his having notice of the transaction, would not affect him.” Upon the above charge, the jury returned a verdict for the defendant, and the plaintiff having asked for a new trial, and the same being refused him, he appealed in the nature of a writ of error to this court.
    
      James Campbell and Wm. B. Campbell.- for plaintiff in error.
    The court among • other things, charged the jury that the deed of gift (meaning the bill of sale from Morgan to the plaintiff,) being proved by only one witness, was void. ' Whereas, he ought to have told the jury that it was valid béttyeen the parties. Hawwk’s Dig. 372.
    If the negro belonged to Morgan, and he conveyed her to the plaintiff, even though Marmaduke, the father? ^ave given up the one hundred and twenty five-dollar note in consideration of the conveyance, yet this-vested the title to said negro in the plaintiff. See Childs vs. Derrick 1: Yer. Rep. 79.
    The bill of sale from Morgan to the plaintiff not being registered, is valid between the parties, and no person hut. a creditor or purchaser froin Morgan can take advantage of the want of registration. See 5 Cranch, 154; Morgan vs. Elam, 4th Yer. Rep. 375.
    Whatever title Morgan had to the negro, passed by his bill of sale to the plaintiff, and not to Marmaduke.
    The bill of sale from Morgan to plaintiff, by being duly registered, would have conveyed no additional title to said negro, more than was conveyed by the bill of sale without registration. Registration would only operate to bar the claim of a subsequent purchaser from Morgan. One proposition contained in the charge of the court is founded upon the assumed fact, that there was evidence conducing-to prove, that the bill of sale from Marmaduke to Morgan, was destroyed by mutual consent, before the conveyance from Morgan to the plaintiff. Now there is no evidence proving, or conducing to prove, that the said bill of sale was ever destroyed at all.
    It is manifest from the charge of the court, that the mind of the jury was particularly directed to the question of registration, as if that was the pivot on which the cause turned: whereas it is insisted by the counsel for the plaintiff, that in no possible aspect of this case, could it be a matter of any sort of importance whether the bill of sale from Morgan to the plaintiff was registered or not, and that this was calculated to mislead the jury, and did influence -their verdict.
    If the bill of sale was made by Morgan Williams (the owner of the property) to the plaintiff, the want of registration could not render it liable to the claims of a creditor of Marmaduke Williams, or authorize-him to sell and convey the negro to any person: yet from the charge of the court, the jury must have believed that this want of re'gis-tration would authorize Marmaduke Williams to sell the property.
    In Read vs. Franklin, it was held, possession of the parent is the possession of the child. Orraxton vs. Gaines, 4th: Hen. and Munford, p. 151.
    No question is raised in the record as to the new registration of the bill of sale from Marmaduke to Morgan Williams, and if there had, it would not avail, because a . consideration was paid, and possession accompanied and followed the deed.
    Possession of a slave for three years, gives title, Martin andYerger, 426.
    The court in effect charged the jury, that the bill of sále from Morgan to Almedius not being duly registered, the title could not vest in the son, but vested in the father, because he paid the consideration. This is directly at war with the uniform decisions of this court in similar cases. See Childs vs. Darrick, before referred to: Gray vs. Faris, decided August term, 1832, of this court. Davis vs. Mitchell 5th: Y. R. 281.
    Rucks, for defendant.
   Green J.

delivered the opinion of the court.

The charge of the circuit judge is for the most part unexceptionable; but in several propositions stated by him there is error.

Speaking of the deed from Morgan- Williams to the plaintiff, he told the jury that as it was only proved by one witness, it was void. This as a general proposition, as here laid down, is not true. Although, as against creditors of a purchaser from the donor, it' would be void unless proven by two witnesses, and registered as the law directs, yet as between the parties it is good without registration. Hawk’s. Dig. 372: Davis and Mitchell, 5: Yer. Rep. 282.

In the latter part of the charge the court says, “if a , . . third person had given a negro to the child living with its father, the father’s possession as natural guardian, would confer the title on the child; but when the gift is directly from the father to such child, or indirectly by first delivering it to the trustee, and then that trustee within three years, redelivering to the father to hold for the child; that is not such an open remaining in possession by the donee, as will do against a purchaser.” The first part of the above quotation is correct. An adverse possession of a slave for three years, will confer on the possessor the title, as washolden in Kegler vs. Miles, Mar. and Yer. Rep. 426. And the possession of the negro by a guardian for an infant, will vest the title in the infant. Davis vs. Mitchell, 5 Yer. Rep. 282. It is not perceived how the .-question of the operation of the statute of limitations is affected by the source from whence the title of an infant to the negro may he derived. A gift from a father to an infant child, is as valid as if it were made by a stranger. "The fact in the former case, that the possession was held openly and notoriously for the infant, would be more difficult to establish;-but having been established, the same consequences result as though the gift had been made by a third person. This was the case of Davis vs. Mitchell; Davis’ father gave him the negro while he was an infant, and lived with the family of his father, where the negro also lived. On "reference to the record it is perceived that the report of that case is defective, in not stating the fact that the negro was given by the father of the plaintiff, and remained in his possession for his son.

If, therefore, the negro was sold by Marmaduke to Morgan Williams, and the possession held by him for himself, and afterwards conveyed by him to the plaintiff, and the possession delivered to his father, and holden for him for more than three years, it would vest in the plaintiff a good title. So too, if Marmaduke honestly gave the negro to his son, and made use of the conveyances to his brother, and from his brother to his son, and after-Wards held the negro in good faith for his son, for three years, the act of limitations would vest in him a good title. But if it was a feigned gift, to deceive and defraud creditors, and a mere pretence that he held for his son, the plaintiff would not have acquired any right thereby.

The judgment will be reversed, and the cause remanded for another trial, when the law as laid down in this opinion, will be delivered to the jury, in addition to that part of the charge which has not been held herein to be ero-neous.

Judgment reversed.  