
    Payne vs. Lassiter.
    Nashville,
    December, 1837.
    A remainder in a slave or other chattel, to vest in possession after tíre determination of a life estate therein, cannot be created by a parol declaration or sale; such remainder, to be valid, must be evidenced by a deed, will or other writing.
    Under the provisions of the act of 1784, a parol sale of a slave, accompanied by delivery of possession, is valid between the parties, but a pa-rol sale of a slave, unaccompanied by delivery, and to take effect after the death of the vendor is void.
    This is an action of detinue. On the trial below it was proved that Joel Brown wished to raise money, and expressed an'intention of selling the negro Peter, now in controversy. On the 10th of August, 1826, he offered to sell him to the plaintiff, Payne, upon the following terms, to wit: That he, Brown, would reserve to himself a life estate in said negro for his life time, and at his death the slave to go to Payne, if he Payne would pay him ,$¡200. To this proposition Payne acceded, and paid him the money. Peter, the negro, ivas not delivered to Payne at any time, but re*> mained in the possession of said Brown until his death, in 1885, when he came to defendant’s possession, to whom he was beqoathed in =aid Brown’s will. There was no bill of sale or other writing signed by Brown, but the whole contract about Peter was verbal. The defendant had the negro in his possession when the suit was brought, and refused to deliver him to plaintiff. The court charged the jmy, “that a remainder in a slave could not he created by a verbal declaration and sale, but only by deed, will or some other writing; and that if the remainder in said slave Peter was created by verbal contract, it would be void at law and pass no title to said slave. The court further instructed the jury, that whether the remainder in said slave was void at common law ri not, if said slave Peter was sold to said Payne by Brown, and no bill of sale made at the time, or other writing, nor possession of said Peter, delivered to said Payne, then said sale was invalid, and would not pass lite title of said slave to Payne, although the purchase money was paid. That under the provisions of the act of 17Í4, in order to make the sale of a slave valid in this state, possession of the slave sold must be delivered by the vendor to the vendee, or a bill of sale in writing executed. The jury found a verdict for defendant. A motion for a new trial was made and overruled, and. an appeal in the nature of a writ of error to this court.-
    
      F. B. Fogg and W. .3. Cook, for plaintiff in error.
    JL By the ancient common law, no remainder in personal property could be created, but it has long since been settled, that it may be done. 2 Kent’s Corn. 352, and authorities there cited. In the sale or disposal of personal property, at the common law, no deed or writing was required. Personal property of every description was the subject .of parol con-trae.!, and the moment the courts of common law determined that a remainder in personally might be created, they necessarily determined that it might he raised by such evidence as was competent by the common law, to pass an interest in personalty.
    A parol sale of a chattel not in existence, or to be delivered at a future period, is valid as an executory ntn'eement the common law; and in these executory contracts, when time anived for delivery, the contracting parties acquite mutual rights to demand, the one the goods the other the price; and the vendor may maintain trover for the goods, if they are not delivered, upon tender of the price. Ross on Vendors, 42, 43: 12 Law Lib. 23: Noy’s Maxims, 42: Towers vs. Osborn, 1 Strange’s Rep. 506: Mucklow vs. Mangles, 1 Taunton’s Rep. 320.
    2. This sale is not void by the act of 1784, c 10. It has long been settled, upon the construction of that act, that a verbal sale is good between the parties, as at common law, and that the sale was only void as to creditors. 1 Hay. 58: 2 Hay. Rep. 66-S6: 1 Murph. Rep. 466.
    
      j. S. Ferger and J. J. While, for defendant in error.
    1. The act of 1784 requires all sales of slaves to be in writing or they are void. 1 Hay. and Cobbs, 24: Oaruthers and Nick. Rev. 676.
    The construction of that act, that a sale and delivery of possession of a slave is good to pass the title without writing does not embrace this case. If neither the possession of the slave be given at the time, nor a bill of sale or other writing be given, the sale is within the act and void. There must be either a bill of sale or delivery of possession to pass the title: hence a sale of a slave to take effect after the death of the veudor is void. 1 Hay. and Cobb. 24: Car. and Nick. Rev. 676: 2 Yer. Rep. 585: 5 Do. 281: 8 Do. 3S5: 9 Do. 73.
    Any other construction than this of the act of 1784, instead of preventing, as that act was designed to do, would encourage the commission of frauds and perjury.
    2. The remainder in this case limited to take effect after the determination of the life estate, reserved by the vendors is void. No remainder can be limited of a slave but by deed, will or other writing. 2 Bla. Com. 398: 2 Kent’s Co. (2d ed.) 352: 2 Yer. Rep. 585: Noy’s Maxims, 80, 158, 159, (2d Am. ed. of 1824,) side pages 32. 100, 101; 2 Day’s Rep. 52, 26.
   Reese, J.

delivered the opinion of the court.

The plaintiff brought against the defendant an action of detinue for a negro slave, it was proved on the trial that one Joe! Brown, under a bequest in whose will the defendant claimed title to the negro in question, wishing in August, 1826, to raise money, offered to sell the slave to plaintiff on the following terms, to wit: “That he, Brown, would reserve to himself a life estate in said slave, and that at the death of Brown, the slave should go to Payne, if Payne would pay to him $200.” This offer was accepted by Payne, and he thereupon paid the money to Brown. The slave was not at the time of the contract, nor at any time delivered to Payne, but remained in the possession of Brown till his death, which took place in 1835; when he came into the possession of defendant, under a bequest in Brown’s will. There was uo bill of sale or other writing signed by Brown in evidence of the contract as to said slave, but the agreement on the subject was merely verbal. Upon this state of facts the court charged the jury, that a remainder in a slave could not be created by a verbal declaration and sale, but only by deed, will or other writing, and if the remainder in the slave was created by verbal contract it would be void at law, and pass no title to the slave. The court further charged the jury, that whether the remainder in the slave was void or not, if the slave was sold by Brown to Payne, and no bill of sale was made at the time, or other writing, nor possession delivered to Payne, then the sale would be invalid and not pass the title to Payne, although the purchase money was pa d by him, That under the provisions of the act of 1784, in order to make the sale of a slave in this state valid, “possession must be delivered by the vender to the vendee, or a bill of sale executed. . A verdict was rendered in favor of the defendant, a motion for a new trial was made by the plaintiff, which having been overruled by the court, an appeal in the nature of a writ error has been prosecuted to this court.

Upon the charge of the circuit court to the jury, two questions arise, 1st, Can a remainder in a slave, or other chattel be created without will or deed, or other writing, to take effect after the determination of a life estate interest reserved? 2d. Under the provisions of the act of 1784, can a parol gift or sale of a slave be held to be valid, as between the parties, when soph parol gift or contract of sale is neither accompanied nor followed by the delivery of the slave to the donee or bargainee. As to the first point, it may be remarked that anciently there could be no limitation over of a chat-tie interest, hut a gift for life, carried the absolute interest, and of course therefore it would seem, that a reservation for the life of the grantor, would continue in him the alsolute interest. As early as the time of Coke, Manning’s case, 8 Coke, 95, it was settled that chattels real might be so limited by will, and it has since been well settled, that a personal chattel may be also given by will to A for life, with remainder over to B, and the limitation over after the life interest in the chattel has expired, will be good. Jn Child vs. Baylie, Cro. J. 450, the court speak of such a remainder as being created equally by grant or devise. See 2 Kent’s Com. 352, (2d ed.) That a remainder can be created in a chattel by will or deed, is established by numerous American decisions. In North Carolina indeed, in several cases, it has been ruled, that the limitation of a remainder in a slave by deed, is not good. There courts seem to regret that they have got into such a train of decisions. The contrary, however, has been determined in this state, in the case of Cain and Wife vs. Marly, 2 Yer. 582, where it is settled that a deed of gift of slaves, to take effect after the death of the donor is valid. But no case has been, or it is believed, can be shown where a remainder in a personal chattel, to take effect after the determination of a life interest, has been held good, when been created by parol, and without deed, will, or other writing But it is argued, that upon principle this can be done, that as at common law, the payment of the price of a personal chattel, upon a contract of purchase and without delivery, vests in the vendee the property in such chattel; why will not the same consequence attend a remainder, when that is the subject of purchase and payment? The difference is founded upon the nature of a remainder itself, which in the case of a chattel is not a present title to the tliina; sold, but a right to its future enjoyment after the deter-initiation of a life estate interest, which has been carved out °f ¡t. Chancellor Kent in his Commentaries, 2 vol. 4G8, (2d ed.) says, “the thing sold must have an actual or potential existence, and be capable of delivery, otherwise it is not strictly a contract of sale, but a special or executory agreement.” A remainder in a chattel is not a thing so existing as to be capable of delivery.

But if the argument in question were even more plausible than it is, still as at common law limitations in remainder of chattels, by will or deed, met with a slow if not reluctant sanction from the courts, and have never been carried further, there is no ground .of either policy or power to tempt or warrant this court, in now giving effect to a mere parol creation of them. We think, therefore, that there is no error in the charge of the court to the juty upon the first point.

2d. As to the construction of the act of 1784, “it has been constantly held, that when possession is delivered at the time a gift or sale of a slave is made, it is good as between the parties and vests a title without a deed.” Such is the language of this court in the case of Davis vs. Mitchell, 5 Yer. 282. Numerous decisions made in North Carolina from the time almost of the passing of the act to the present day, sustain the same principle, and this too has been the unvarying tenor of judicial construction upon the act within our own state. It cannot now be departed from. To do so now would be productive of immense mischief and place in great danger the titles of thousands to this species of property. But enlightened judges, both in North Carolina and Tennessee, have in recent cases expressed their surprise and regret that the courts of an earlier period had not felt themselves constrained to adhere to the literal requirements of the statute. See 2 Dev. 326, 329, 332; and 3 Yer. Rep. 334-5. Virginia and Kentucky more wisely, it is believed, enforced the literal provisions of the act of the former state of 1758, similar in its terms, if not identical with the act of 1784. See 1 Wash. Rep. 139: 1 Marsh. 163. The ground upon which the courts in North Carolina and Tennessee, in their departure from the statute placed . . themselves, was that a delivery of the slave at the time the sale or gift, being a public and notorious act, evidencing a change of ownership, made unnecessary the bill of sale required by the statutes; and now we are asked, in as much as former courts have by judicial construction removed one barrier set up against frauds in this species of property by the statute, to remove that other barrier, which the courts themselves set up as a substitute for it. Thinking as we do with regard to the act of 1784, and the decisions upon it, we have no power to do so, and even if we had, we have no inclination on grounds of public policy to do so, but would content ourselves with saying, in the language of the Baron’s qf England, on an early occasion, “nolumus mutari.” Let the judgment be affirmed.

Judgment affirmed.  