
    *Thrift v. Hannah and al.
    June, 1830.
    Instrument of Emancipation — ineffectual Until Puli Probate Be Made — Case at Bar. — A feme sole, owner of slaves, makes a written Instrument of emancipation of them, m November 1798, to take effect in futuro; this instrument is attested by two witnesses; it is partly proved by one of them, and continued for further proof, in April 1799, in the county court of Fluvanna, where the emancipator then resided; in November 1799, the emancipator, holding the persons named in her instrument of emancipation in her possession, marries T. who is ignorant of the execution of the instrument; then, T. removes with his wife to Albemarle, carrying the persons named in the instrument of emancipation with him as slaves; the wife dies m 1811; the husband continues to hold the persons in question, as his slaves; in 1819, the instrument of emancipation is fully proved by the other attest-ingwitness.in the county court of Fluvanna; and, afterwards, the persons therein named, bring a suit against the husband, to recover their freedom: Iliorm, under the statute of Virginia, an instrument of emancipation is ineffectual to confer freedom, till full probat thereof be made according to law, and takes effect only from the date of the complete probat; and, as the rights of the husband, in this case, attached to the property long before full pro bat was made, the subsequent full probat did not divest or affect those rights or give any right to freedom.
    Same — Where it May Be Proved — Case at Bar. — Sem-ble. an instrument of emancipation being partly proved in the court of the county where the emancipator resides at the time, may be fully proved in the same county, though before full proof made, the emancipator removes to another county.
    This was a suit in forma pauperis, brought by Hannah and Kate against Thrift, in the county court of Albemarle, to recover their freedom. The pleadings were in the usual form, and the issue joined on the question, whether the plaintiffs were bond or free. The parties, at the trial, agreed the facts of the case:
    Rachel Magruder, on the 25th February 1796, being then a feme sole, residing in the county of Montgomery in Maryland, and holding the plaintiffs as her slaves, executed the following instrument of writing:
    “To all to whom these presents shall come: Know ye, that I, Rachel Magru-der, of Montgomery county and state of Maryland, for divers good causes and considerations me hereunto moving, have manumitted, infranchised and set at liberty, and by th;se presents do manumit &c. one negro *girl named Hannah, from and after the 1st March 1807; and all the increase whatever, male or female, issuing from her during the said time, I hereby declare to be manumitted &c. as they severally shall attain to the age of twenty-five years, both mother and children, from me, my heirs, executors and administrators, and from all persons whatsoever. In witness whereof I have hereto set my hand and seal this 25th February 1796.
    Rachel Magruder, [seal]
    Signed sealed and delivered in presence of
    William Smith.”
    This instrument of writing was, on the day of the date, acknowledged by her as her act and deed, before William Smith, a justice of the peace of the county of Montgomery, Maryland, and, the next day, admitted to record there.
    At the time this instrument of emancipation was executed, there' was a statute of Maryland in force, enacted in 1752, the provisions of which, so far as they affect this case, were in the following words — “Be it enacted, that it shall not be lawful for any person or persons within this province, by any verbal order, or by his, her or their last will and testament, or by any other instrument of writing in his, her or their last sickness, whereof he, she, or they shall die, to give, or grant freedom to any slave or slaves: and in any person, after the time aforesaid, shall, by any verbal order, or by his, her or their last will and. testament, or by any other instrument, in his, her or their last sickness, whereof he, she or they shall die, give freedom to any slave or slaves, such order, will, or other writing, shall be void and of no effect, so far as relates to such freedom or emancipation only. And to the end, that hereafter there may be an uniform and regular manner of granting freedom to slaves, Be it likewise enacted, that where any person or persons, possessed of any slave or slaves within this province, who are or shall be of healthy constitutions',' and sound in mind 'x"and body, capable by labour to procure sufficient food and raiment, with other requisite necessaries of life, and not exceeding fifty years of age, and such person or persons, possessing such slave or slaves as aforesaid, and being willing and desirous to set free and manumit such slave or slaves, may by writing under his, her or their hand and seal, evidenced by two good and sufficient witnesses at least, grant to such slave or slaves, his, her or their freedom; and that any deed in writing, whereby freedom shall be given or grante.d to any such slave, which shall be intended to take place in futuro, shall be good to all intents, constructions and purposes whatsoever, from the time such freedom or manumission is intended to commence by the said deed or writing, so that such deed and writing be not in prejudice of creditors, and that such slave at the time such freedom or manumission shall take place or commence, be not above the age aforesaid, and be able to work and gain a sufficient livelihood and maintenance, according to the true intent and meaning of this act; which instrument of writing shall be acknowledged before one justice of the peace of the county wherein the person or persons granting such freedom shall reside; which justice shall indorse on the back of such instrument, the time of the acknowledgment, and the party making the same, which he or they, or the parties concerned, shall cause to be entered among the records of the county court,-where the person or persons granting such freedom shall reside, in six months after the date of such instrument of writing.”
    After the execution of the above recited instrument of emancipation, in December 1796, the legislature of Maryland passed another statute, repeating the provisions of the statute of 1752, with some alterations and additions: it enacted, “That where any person or persons, possessed of any slave or slaves within this state, who are or shall be of healthy constitutions, and sound in mind and body, capable by labour to procure to him or them sufficient food and raiment, with other requisite necessaries of life, and not exceeding *forty-five years of age, and such person or persons possessing such slave or slaves as aforesaid, and being willing and desirous to set free or manumit such slave or slaves, may by writing under his or their hand and seal, evidenced by two good and sufficient witnesses at least, grant such' slave or slaves, his, her or their freedom; and that any deed or writing, whereby freedom shall be given or granted to any such slave, which shall be intended to take place in futuro, shall be good to all intents, constructions and purposes whatsoever, from the time that such freedom or manumission is intended to commence by the said deed or writing, so that such deed and writing be not in prejudice of creditors, and that such slave, at the time such freedom or manumission shall take place or commence, be not above the age aforesaid, and be able to work and gain a sufficient livelihood and maintenance, according to the true intent and meaning of this act; which instrument of writing shall be acknowledged before one justice of the peace of the county wherein the person or persons granting such freedom shall reside; which justice shall indorse on the back of such instrument, the time of the acknowledgment, and the party making the same, which he or they, or the parties concerned, shall cause to be entered among the records of the county court where the person or persons granting such freedom shall reside, within six months after the date of such instrument of writing; and the clerks of the respective county courts' within this state, shall, immediately upon the receipt of such instrument, indorse the time of his receiving the same, and shall well and truly enrol such deed or instrument in a good and sufficient book in folio, to be regularly alphabeted in the names of both parties, and to remain in the custody óf the said clerk for the time being, among the records of the respective county courts; and that the said clerk shall, on the back of every such instrument, in a full legible hand, make an indorsement of such enrolment, and also of the folio of the books in which the same shall be enrolled, and to such instrument *set his hand, the person or persons requiring such entry paying the usual and legal fees for the same.”
    And in 1810, another statute of Maryland was passed, concerning servants and slaves, so much of which as affects the present case, was in the following words: “Be .it enacted that any deed heretofore executed for the manumission of any slave or slaves, who by law might have been manumitted or set free by deed, and which had been acknowledged and recorded in the manner directed by the act entitled an act relating to negroes, and to repeal the acts therein mentioned, shall be valid and effectual in law, to give freedom to any such slave or slaves and their issue, although such deed of manumission or writing as aforesaid may not have been evidenced by two or more good and sufficient witnesses. And be it enacted, that a copy of any such deed of manumission or writing as aforesaid, taken from the records of the county, and duly attested under the seal of the court, shall, at all times hereafter, be deemed to all intents and purposes, good evidence to prove such deed of manumission : provided always, that nothing in this act contained, shall be so construed as to affect or destroy the right of any preson, who before the passage of this act, was a bona fide purchaser of any slave or slaves, claiming his, her or their freedom, under such deed of manumission ; and provided also, that notwithstanding such deed of manumission, no slave shall be entitled to his or her freedom under the provisions of this act, who has heretofore been adjudged to be a slave, by any court of law in this state.”
    Rachel Magruder, being still a feme sole, and having the plaintiffs in her possession,. sometime between the 26th February 1796, and the 25th November 1798, removed, and brought the plaintiffs with her, to the county of Ehuvanna in Virginia, where she resided, with the plaintiffs in her possession, till her intermarriage with the defendant Thrift; upon which, she and her husband removed to the county of Albe-marle, carrying the plaintiffs with them, and continued to reside there, till the death of Rachel, the wife, in 1811.
    5:'But, on the 25th November 1798, before her marriage with Thrift, Rachel Magruder, then residing in Flu-vanna, with the plaintiffs in her possession, executed the following instrument:
    “Know all men by these presents, that I, Rachel Magruder of Fluvanna county and state of Virginia, for divers good causes me thereunto moving, do set free, manumit and release from slavery, the following negroes at the periods hereafter mentioned, viz. negro Toney, one year from the date hereof; negro Pharo, one year from the date hereof; negro Hannah, eight years from the date hereof, and her future increase, males at the age of twenty-five, and females at the age of twenty-one years; negro Kate, nine years from the date hereof, and her increase, males and females, at the age of twenty-five years; and do hereby declare the said negroes named as above, as soon as the periods as above mentioned arrive, to be free, and released from all claims against them as servants, both from all persons claiming under them, or to claim by, from or under me, as well as from myself. As witness my hand and seal this 25th November 1798.
    Rachel Magruder [seal]
    Teste, J. B. Magruder,
    T. D. Boyd.”
    This last instrument of emancipation was partly proved, by one of the subscribing witnesses, in the county court of Fluvanna, at April term 1799; and at June term 1819, it was further proved by the other; and was, thereupon, admitted to record.
    The plaintiffs were the same persons mentioned in the deeds of emancipation, by the names of Hannah and Kate: and they were, and always had. been, sound and healthy; capable, at the institution of this suit, of maintaining themselves by their own labour; and, on the 1st March 1807, not above forty-five years of age.
    *The marriage of Rachel Magruder with the defendant Thrift, took place the 7th November 1799; she being still in possession of the plaintiffs, and having always continued in possession of them, as before stated. Thrift held continual possession of them, from the time of his marriage till the institution of this suit. And Thrift, at the time of his marriage, had no knowledge of either of the instruments of emancipation, unless notice of them may be imputed to him, from the previous proof of the Virginia instrument, by one of the subscribing witnesses, in the county court of Fluvanna, in April 1799.
    This being the agreed state of the case, the counsel for the plaintiffs moved the court to instruct the jury, that the two instruments of emancipation of February 1796 and November 1798, were both good in law, and competent to give the plaintiffs their freedom. The county court was of that opinion, and so instructed the jury; and Thrift filed exceptions to the opinion.
    There was a verdict and judgment for the plaintiffs; from which Thrift appealed to the circuit court of Albemarle, which affirmed the judgment; and then he appealed to this court.
    The cause was argued here, by Stanard for the appellant, and by Johnson assigned counsel by the court, for the appellees.
    I. The first question was, Whether the Maryland instrument of emancipation of 1796, was duly executed and perfected to confer freedom on Hannah, according to the law.s of that state? Whether the statute of Maryland of 1752, did not require, that all instruments of emancipation, as well those intended to confer freedom in future as those which conferred it presently and immediately, should not only be acknowledged before a justice of the peace' and recorded, but attested by two good and sufficient witnesses at least? See James v. Gaither, 2 Har. & Johns. 176, *which was decided in 1807, and probably gave occasion to the Maryland statute of 1810.
    XI. Then, as to the instrument of emancipation of 1798, executed in Virginia, Stanard referred to the statute, 1 Rev. Code, oh. Ill, $ 53, p. 433, and to Givens v. Manns, 6 Munf. 191, and Lewis v. Fullerton, 1 Rand. 15, as settling the construction of the statute, that the probat is essential to the perfection and efficacy of such instruments. He remarked, that the statute does not call these instruments of emancipation deeds, but only instruments in writing : neither were they nor could they be deeds, for they were not contracts; there could be no contract between master and slave; and as there was nobody capable to receive delivery, so there could be no delivery of them. The legislature, mindful of this, had appointed the court to receive probat of instruments of emancipation; had substituted the agency of the court to perfect them by taking the proof or ackn'owl-edgment of them, in lieu of the agency of the parties in perfecting deeds by making and receiving delivery. An instrument of emancipation, then, depending for its consummation, and for all its efficacy, upon the probat, could only take effect from the probat, and was not binding on the party who made it, till the probat: he might decline or refuse to acknowledge it, or let it be proved, in court; hold it in his own possession ; revoke, cancel or destroy it, at pleasure; and if, in the mean time, the rights of third persons in any way attached to the subject as property, the subsequent probat could not divest those previously vested rights. It would be most strange,.and of most pernicious Consequence, if these instruments of emancipation might be held up for any indefinite period of time, and then, upon being proved, should be allowed to overreach rights accrued and vested in the interval; and the vested rights too of purchasers withoiit notice. In the present case, the property of these slaves was vested in Thrift by his marriage with Rachel Magruder in 1799, and the instrument of emancipation, under which they claimed freedom, was never proved, and therefore never of any efficacy, till 1819. It was never proved till twenty years after the marriage, and till eight years after the death of the maker of it. And as her marriage, and her death, each, annihilated her power to acknowledge or have it proved in court, so they were, each, the most effectual revocation of it imaginable. In fine, the instrument was not proved, at last, before a court of competent jurisdiction to receive the probat; for the statute requires, that the probat shall be made in the court of the county where the party resides; and this instrument was finally proved in 1819, in Fluvanna, whénce the party had removed twenty years before, and thenceforth till her death resided in Albemarle.
    Johnson insisted, that though the pro-bat of such instruments was essential to the efficacy of them to confer the right of’ freedom, that did not affect the question, what was the legal operation and effect of' them after they were proved. It was not decided in Givens v. Manns, that such instruments take effect from the probat, but. only that the probat must be in the county court; and Lewis v. Fullerton established, nothing more than that a deed of emancipation executed in Ohio to operate in Virginia, must be perfected and proved according to-our laws: neither of those cases touch the .question in this case, which is, whether the act of emancipation, when duly proved, should take effect from the date of the pro-bat, or from the date of its execution? The distinction attempted between deeds and instruments of emancipation, he said,. was too nice; there *was no policy of law that required any such rigour in regard to those instruments. In principle, they ought, like other deeds, to take effect the moment they were delivered to the party himself, or to any body else for him; the moment the maker of them put them out of his own possession, with intent to divest himself of all farther controul over them, and to have them proved according to the provisions of the statute. For, he said, the manifestation of the maker’s will, was as complete by this act, as he could make it by any act. In this case, the owner of the slaves, having executed the instrument of emancipation in due form of law, delivered, or caused or allowed it to be delivered, into court, in order that it should be proved; and it was proved in part soon after it was executed: thenceforth, it was in the possession and custody of the court r she could in no manner recover possession of it: how could she revoke the act which put the instrument out of her hands, and gave it to the court? how could she cancel or destroy it? And if no express revocation of the act was possible, how could revocation be implied from her marriage? If the argument for the appellant were just, it would lead’ to strange consequence^; it would prove, that after the owner of a female slave has executed a deed of emancipation, after he has delivered it to another to be delivered into court and proved, even after he has himself acknowledged it or had it proved, her children born between the execution and the probat of the instrument, are- slaves. As to the probat being completed in Fluvanna, where it was commenced, though the party had long before removed to Albemarle, he said, if the statute required, that an instrument of emancipation, when proved by witnesses, should be'proved in the court of, the county where the party resides, (which he did not admit) still the proper court was that where the party resides at the date of the execution of the instrument, not of the probat: especially, when, as in this case, the probat has already been commenced, and properly commenced, it ought to be finished in the court where it was begun.
    
      
      Instrument of Emancipation — Ineffectual Until Full Probate Be Made. — To tbe point that an instrument of emancipation is ineffectual to confer freedom till full probate thereof be made according to law the principal case and Givens v. Manns, 6 Munf. 191 were cited in Manns v. Givens, 7 Leigh 710. The principal case was also cited in Wood v. Humphreys, 12 Gratt. 357; Manns v. Givens, 7 Leigh 697, 704, 705, and distinguished in Manns v. Givens, 7 Leigh 707, 717.
    
    
      
      The words of the statute are. “It shall be lawful 'for any person, by his or her last will and testament, or by any other instrument in writing-, under his or her hand and seal, attested and proved, in the county or corporation court, by two witnesses, or acknowledged by the party in the court of the county where he or she resides, to emancipate and set free his or her slaves, or any of them: who shall thereupon be intirely and fully discharged from the performance of any contract entered into during servitude, and enjoy as full freedom as if they had been particularly named and freed by this act.”— Note in Original Edition.
    
   *CARR, J.

The deed of emancipation of Hannah, executed in 1796, by Rachel Magruder, then a feme sole residing in Maryland, purports to give the slave her freedom not presently, but after some years. It was executed under a statute of Maryland of 1752; a statute very darkly and clumsily penned. That statute speaks of deeds giving- freedom in presentí, and deeds giving freedom in futuro ; and, to my understanding, requires that the former shall be evidenced b3’ two witnesses, but that the latter shall be good if acknowledged before a magistrate and recorded. The deed before us is so acknowledged and -recorded. I, therefore, should have considered it good and valid, but that we find it -decided by the court of appeals of Maryland, in James v. Gaither, that a deed giving future freedom, must be evidenced by two witnesses, as well as acknowledged before a magistrate, and recorded. Yielding my opinion to the construction given to this statute of Maryland by her own courts, I shall proceed to consider the next and much more important question, arising-under our own laws, and affecting a numerous class of cases.

Was the county court right in its instruction to the jury, that the deed of emancipation of 1798, executed by Rachel Magruder, then a feme sole residing in Fluvanna, was good and effectual? Against the validity of this deed several objections were taken at the bar. It was insisted, that it was a nullity until it was fully proved in court: that it must take its date as a deed from the time of such final proof: that the delivery of the deed, if delivered to the witness •or another, was no delivery in law, but a mere authority to have it recorded; an authority revocable by the grantor, at anj' -moment before full proof in court; and revoked in this case, by her marriage and death before such proof was exhibited: and that the probat was not in the proper county. At common law, we know, the sealing and delivery of a deed make it binding at once on the grantor, and irrevocable by any after act of his; and this delivery may be either by word or act, and either to the grantee or a third person ; *and any thing which amounts to evidence that the act or word was meant as a delivery, will constitute one. The delivery being the perfection and consummation of the deed, throws the proof of any restriction or condition upon it, on the grantor. All this will be admitted, as ■to deeds between parties capable of contracting; but it was insisted, that as slaves are not so, none of these rules apply to deeds of emancipation. But do not these rules apply to deeds of gift, and may not such deeds be executed to many who have a capacity to receive deeds, though not to contract? In truth, is not every deed, as a common law instrument under seal, governed by the same rules? Does not the execution of the deed, in all cases, take from the grantor the power of revocation? When the statute gives every owner the right to emancipate his slave by instrument in writing, under his hand and seal, it describes (to my mind) a deed; and to this deed we must annex (unless the statute forbid it, which it does not) the common law incidents and attributes of deeds, with the principles which govern them. As, then, slaves may be emancipated by deed, such deed may be delivered; for a delivery is necessary to its completion, and such delivery binds the grantor from its date; for such is the rule of the common law. It is true, this rule is so far controuled by the statute, that the deed is not effectual, unless proved by two witnesses, or acknowledged by the party in the court of the county where he resides; but when so proved or acknowledged, it is a deed from the date of its execution. And it will be remarked, that though in other cases, eight months are given, as the general period within which deeds shall be recorded, in deeds of emancipation no time is limited. It was contended at the bar, that there could be no delivery of this deed of emancipation, but to the court which received the final proof; and that, of consequence, it could not, till such pro-bat, be consummated. But the statute itself shews that this is a mistake. It says, “the instrument may be proved in the county court by two witnesses.’ ’ Now, to what would they testify? *Why, that on some prior day, they saw the grantor sign, seal and deliver the deed, or heard him acknowledge the same. The delivery, then, in all such cases, must be out of court, and prior to the probat.

It was considered (in the argument) monstrous, that a deed should thus be held back for twenty years, and when at length proved, have relation to its execution, and thus intercept rights which had grown up in the meantime. But, 1. the law has limited no time within which, if the deed be not recorded, it shall be void; and 2. this tardiness of the second witness can hardly be charged to the paupers; for on their rights it has operated most injuriously. By the deed, one of them (if entitled at all) was entitled to be free in 1806; the other in 1807: yet they remained in slavery, and the deed unproved, till 1819; and if this last witness had died, they might have lost wholly the benefit of it. By this delay in the proof, then, they had every thing to lose; the appellant, every thing to gain.

But it was said, that the decisions of this court have settled the doctrine, that the deed is a nullity until fully proved according to the statute; and Givens v. Manns and Lewis v. Fullerton, were referred to. I have examined these cases, and do not think they go so far. In Givens v. Manns, all the court said on the point, is this: “the court is further of opinion, that the alleged deed of emancipation (made part of the record in this bill of exceptions) not being acknowledged or proved in the court of the county or corporation, as the law directs, was not so authenticated as to make it evidence in the trial, nor ought to be received as such evidence, until it shall be proved or acknowledged before the proper court. ’ ’

Here we see, the deed, so far from being treated as a nullity, expressly considered as an existing deed; not so authenticated, to be sure, as to make it evidence; but stilt capable of being made so, by proof in the proper court. In Lewis v. Fullerton, the deed of emancipation was executed in Ohio, by Rogers, styling himself a citizen of Virginia: it looked to this state for its operation and effect, *but was not proved according to our laws: and the court said, “In that case, it must, to have its effect, conform to the laws of Virginia. It is insufficient, under those laws, to effectuate emancipation, for want of a due recording in the county court, as was decided in Givens v. Manns, in this court.” Thus we see, that in neither of those cases, was the deed pronounced null and void, but in each, the deed was treated as a deed defective^7 proved.

With respect to the third objection, that the deed was not proved in the proper county; the grantor resided in Fluvanna, when the deed was executed, and also when it was proved in the court of that county by one witness: and it is clear to me, that that was the proper court to receive the full proof.

Upon the whole, I am of opinion, that the instruction of the county court was right as to the Virginia deed, and that both judgments should be affirmed.

GREEN, J.

But for a decision of the court of appeals of Maryland in 1807, I should have thought that the deed of emancipation, executed and recorded in that state in 1796, would have effectually emancipated the appellee Hannah, from the time appointed by the deed; there being an obvious distinction in the authentication required by the Maryland statute of 1752, for instruments giving immediate freedom, and those giving it in futuro. The statute of Maryland of 1810, repudiate the decision of the court, by confirming all instruments authenticated as this is, saving the vested rights of strangers, and those affirmed by previous adjudications: and if this case was not to be decided by a Maryland court, Hannah would necessarily prevail by force of the instrument of 1796. But, as the Maryland statute of 1810 never attached upon this case, we ought to yield to the construction given to the statute of 1752, by the supreme judicial tribunal of that state.

The case turns, then, on the effect of the instrument executed in Virginia in 1798, which the appellant insists was *not duly recorded, either as to the place or time where and when it was recorded.

If this paper could be recorded any where, so as to give it effect after the marriage and death of the owner who executed it, I think the county in which she resided at the time of its execution, was the proper place in which to record, it, although she no longer continued to reside there. The literal terms of the section of our statute authorising the emancipation of slaves, do not require, that the instrument of emancipation, when recorded upon the proof of witnesses, shall be proved in any particular county or corporation court. It is only when it is authenticated by the acknowledgment of the owner, that it is required to be acknowledged in the court of the county in which he resides. According to those literal terms, in the first case of proof by witnesses, it is sufficient if that be made in the court of any county or corporation of the state. But this is probably not the true construction of the statute, as it might counteract its policy in requiring the instrument to be proved or acknowledged in a court: whatever was the object of that requisition, it will be best promoted bj7 confining the proof or acknowledgment to the county, in which the owner resided at the time of the attestation of the witnesses, or of the acknowledgment of the owner.in court; for that is the place, in which all who have any interest in the existence of the instrument, would most probably look for it; especially in the cases where, the emancipation was to take effect immediately; which, indeed, were the only cases in the immediate contemplation of the legislature, as is manifest from the concluding terms of the section, “who shall thereupon be intirely and fully discharged &c.” And although when the emancipation is to tafie effect in futuro (as in this case) which has been repeatedly held to be valid, some other rule, as to such a case, in the event of the removal of the owner, or ot any one claiming under him, with the slave, to another county in the state, might be more desirable, the court cannot prescribe such a rule as it may think expedient, *but must apply the rule prescribed by the statute, to all cases indiscriminately.

Did the full proof of the instrument, made after the marriage and death of its author, give it validity? Such an instrument has no effect in giving freedom, until it be proved or acknowledged, in the manner prescribed bj7 the statute, as was held by this court in Givens v. Manns: and it is therefore insisted, by the appellant’s counsel, that not being a contract between parties capable of contracting, and a pure emanation of the will of the owner, he may revoke it at pleasure, at any time before it shall be consummated and take effect b37 the proof or acknowledgment required by the statute; and that in this case, the instrument was revoked bj7 the marriage, and especially by the death, of its author. It is not necessary to inquire, whether the party might, under such circumstances, actually revoke such an instrument with effect, since there has not been any such actual revocation, either by the original owner or her husband, after her marriage, or death; and, in the absence of any evidence of an intention to revoke it, the question is, whether the marriage or death of the owner executing the instrument, has that effect? This depends upon the common law doctrines of relation, according to which, when several acts are necessary to the consummation of any purpose, and all are done, the last act relates to the first, and the whole takes effect from the date of the original act; especially, when the object of the transaction would be frustrated by a contrary construction — ut res magis valeat quam pereat. And this being the chief object of such relations, they are generally confined to that object, and not allowed to operate to the prejudice of third persons, and not even of a party beyond the necessity of preventing the total frustration of the main purpose of the transaction. Without going at large into the cases on this subject, I refer, generally, to these cited in Viner’s title Relation. Thus, to give only one instance, an escrow delivered upon condition, does not become the deed of the party, even as between the parties “themselves, until the performance of the condition and the second delivery, and only operates from the latter period. 13 Vin. Abr. Faits, O. 3, pl. 1, p. 29. Yet if it be made by a feme sole, and she marry before the condition performed or the second delivery, or if the grantor or obligor die in that interval, the deed is valid, by relation to the first deliverj' as an escrow. 18 Id. Relation, E. pl. 1, 2, p. 290. I can see no distinction between those cases and that at bar, the relation being resorted to in each, for the sole purpose of giving effect to the intention of the party. And this could prejudice no stranger to the transaction, if it was not allowed to extend (as I think it ought not) to affect the creditors of or purchasers from either the wife or husband. But there is none such in this case. A husband is not a purchaser of his wife’s property by the marriage: he only thereby acquires the marital rights of a husband, and takes her property as she held it, to all intents and purposes, unless something has been done in contemplation of the marriage, in fraud of those rights. In this case, there is nothing of that sort. I think the judgment should be affirmed.

CABELL, J.

The requisites to an instrument of emancipation, under our statute, are, that it be ‘ ‘under the hand and seal” of the party making it, and that it be “attested and proved in the county or corporation court, by two witnesses, or acknowledged by the party in the court of the county or corporation, where he or she resides.” It is not necessary that it should be by deed. If the legislature had intended it to be by deed, it would have been so declared, either by speaking of it expressly as a deed, or by the use of equivalent expressions. Thus we find, in the firs+ section of the statute of conveyances, (1 Kev. Code, p. 361,) where it was meant to declare, that the title to lands shall not pass but by deed, the expressions are, as follows; “no estate of inheritance or freehold, or for a term of more than five years, in lands or tenements, shall be conveyed from one to another, unless the conveyance be declared by writing, “'sealed and delivered.” And even if the instrument of emancipation be accompanied with all the forms and requisites of a deed; be in writing, signed, sealed and delivered; yet it is manifest, that the law attaches no importance to the circumstance of its being a deed: for it would be just as effectual without being delivered as a deed, as it would be when delivered in the most solemn form. The statute no where calls it a deed : it speaks of it only as the instrument of emancipation.

But it is important to consider the analogy between a deed at common law, and an instrument of emancipation under the statute. A deed is a writing sealed and delivered. All these requisites, writing, sealing and delivery, are essential to give it efficacy as a deed. Although it be attended with all the requisites, except the final one, delivery, it is no deed; and the party who has signed and sealed, does not thereby impose on himself any obligation to complete it by delivery: he retains full power over the instrument: he may withhold its delivery, or may obliterate and destroy it. He retains, moreover, full power over the subject of the instrument, and may make any other disposition thereof he may think proper. And even when a deed is completed by delivery, the delivery has no relation back, so as to give it effect from the time when it was written, or when it was signed, or even when it was sealed. It operates as a deed only from the time when it was delivered. Let us apply these principles to the case before us.

An instrument of emancipation, like a deed at common law, has many requisites; writing, signing, sealing, attestation and proof or acknowledgment in the court of the county or corporation where the party resides. Proof or acknowledgment in court is to an instrument of emancipation, what delivery is to a deed at common law. It is the final requisite, .without which all others stand for nothing. This is established by Givens v. Manns and Lewis v. Fullerton. And I think it perfectly clear, on principle, that this final requisite, proof or acknowledgment before the proper court, can no more have relation back to the date of “the instrument of emancipation, than the delivery of a deed at common law, has relation back to the date of the deed; for the party has, at all times before this final act, the same power over the instrument and its subject, that the party to a writing signed and sealed but not delivered, has, at common law, over the instrument, or the subject of the instrument. He has even greater power; for, in some cases, a writing signed and sealed, but not delivered, may operate as a contract, although it may have no effect as a deed. But an instrument of emancipation, not completed by proof or acknowledgment in court, can never operate as a contract: there can be no contract between master and slave.

By the marriage of Eachel Magruder, in this case, she ceased to be owner of the slaves, which thereby became the property of her husband; andas that event happened before the proof of the instrument, and of course before it had taken effect as an instrument of emancipation, it could not take effect as such afterwards; since none but the owner of slaves can emancipate them.

The silence of the legislature, as to the time within which an instrument of emancipation may be recorded, affords a strong argument against its having relation back io any period prior to the probat. If it had intended any such relation, it would not have permitted the party to hold the instrument up to an indefinite period, to the destruction of rights intermediately acquired.

Upon the question, what is the proper court in which to record an instrument of emancipation, I give no opinion; it not being necessary to be decided in this case.

I think the county court erred in giving the instruction excepted to by the appellant.

COALTEE, J., concurred in this opinion.

BEOOKE, P.

The construction given to the law of Maryland by the decision of the court of that state, puts the Maryland deed of emancipation out of the case. The only question, then, is as to the validity of the Virginia *deed of emancipation ; and that depends on the construction of our own statute authorising emancipation of slaves, and prescribing the mode.

I do not think, that, in considering this question, any light is to be borrowed from the doctrines of the common law, applicable to deeds of conveyance of property, to which the party has a perfect right, and over which 4ie has full dominion. Such deeds are consummated by delivery alone, and they take effect from their date, unless there is something in them to the contrary. Independent of the statutory provision, an instrument of emancipation of a slave, from its nature, from the relation in which the grantor and grantee stand to each other, could confer no right, though delivered to the grantee or to some one for him: he is still a slave and incapable of receiving such right, if the grantor had the power to convey it, which is not admitted, since it is one of the highest acts of sovereignty, to elevate a slave from his degraded state to the rank of a freeman. Although it had been the practice of owners to emancipate their slaves, before the act of 1691 forbidding such emancipation except on certain conditions, that practice gave no perfect right to owners, of their own will, to emancipate their slaves; nor did the permission under that act, or the subsequent statutes down to the present time, to emancipate slaves, confer more than an imperfect right, to be exercised by the owners in the manner prescribed by those laws. No equivalent for the requirements of the statutes, no constructive proof of the recording or delivery, of the deed of emancipation, founded on any supposed right in the owner or his grantee, could be resorted to. This was the principle which governed the decision in Givens v. Manns. The question of emancipation, is a question of statutory law, and can only be dissolved by referring to the terms of the statute. The statute, after prescribing the mode of emancipation, with great particularity, provides, that the persons so emancipated, “shall thereupon” (from the time the. requirements of the statute shall have been complied with, in all its particulars,) “be intirely and fully ^discharged &c. and enjoy as full freedom, as if they had been named in this act:” that is to say, by force of the specific provisions of the statute, and not by virtue of any general, undefined power or right, supposed to exist in the owner, independently of the statute, to emancipate them. Therefore, there can be no relation to the date of the deed to fix the period of emancipation : until the terms of the statute be complied with, they are slaves to all intents and purposes: they cannot be emancipated by a fiction of the common law invented to protect existing rights. The statute having made no provision for the proof and recording of deeds of future emancipation, such deeds ought, perhaps, never to have been established ; yet as they have been sanctioned by the decisions of this court, in this spirit of humanity, rather than- in the spirit of the law, I do not mean now to question them. But if such deeds as the one before us, are brought within the statute, they must be subject to all its requirements, like deeds of present emancipation. They cannbt be put on higher ground.

In the present case, the grantor in the deed had married, removed from the county, and was dead, before the deed in question, was attempted to be consummated by proof in the court of the county in which the grantor had formerly resided. The marital rights of her husband, had attached upon the property in her slaves. His will and not her’s was to be consulted. His right to the slaves could not, without his own consent, be overreached by the proof and recording of the deed, even if it were a question of property merely. But it is enough, that the grantor had, by her marriage, lost her power to emancipate the slaves before the requirements of the statute had been complied with; that she was dead before the deed was proved and recorded; and that, in either view, the requirements of the law could not be complied with.

Both judgmeiits are reversed, and the cause remanded for a new trial, in which no such instructions as those excepted to, are to be given to the jury.  