
    
      HOLMES & AL. vs. PATTERSON.
    
    West. District.
    
      Oct. 1818.
    Appeal from the court of the sixth district.
    A deed of sale, not valid as such, may be so as a deed of gift.
    A donation is valid, tho' the donor died, without delivering the deed or the property, if he did not make any other disposition of the property.
   Martin, J.

delivered the opinion of the court. The plaintiffs claim from the defendant, curator of the estate of Joseph Holmes, the property of the deceased, which came to his hands.

The right o the plaintiffs to the the estate is not disputed; but the defendant contends he has a right to a negro slave, named Lucy, and her offspring, who were by him inventoried, as the property of the deceased. He shews he was but nineteen years of age, when he made the inventory, and produces an authentic bill of sale of the slave, from Joseph Holmes to him.

It cannot be doubted that, as he was a minor, he cannot be precluded by the inventory.

The bill of sale is made for value received. Neither the amount, nor the nature, of what was given as the consideration of the sale, is expressed nor proven. It is contended that, on this account, the bill of sale is void. A price is of the essence of the contract of sale. Po-thier on obligations, n. 6 : and this price must be a serious one. Pothier, contrat de vente, n. 16. And as, in the present case, it does not appear that there was a serious price, there is no price. A price, says Pothier, which bears no proportion to the thing sold, is not a true price, as if a valuable tract of land be sold for a crown. Id. 20. But the defendant’s counsel shews that a deed for value received is good. Jackson vs. Alexander, 3 Johns. 484.

He further contends that, if the instrument under consideration be not evidence of a sale, it is of a donation. Pothier, contrat de vente, n. 16. The plaintiffs contend, that the donation, if any existed, was revoked by the death of the donor, before the acceptance of the donee. In the present case, it does not appear that there was any such acceptance; but we are of opinion that the instrument is valid, at least as a deed of gift, and that as there was such a deed, the donation is valid, although the donor died without having delivered either the deed or the property mentioned therein, if he did not make any other disposition of it. Quando ni la cosa ni la escritura fueren entregadas, si (el donante) muere y no ha dispuesto de ellas, tiene efecto la donacion a favor del que se expressa en la es-critura. Fuero real, 3, 12, 10.

The district court erred in decreeing the delivery of the slave and offspring to the plaintiffs; and the judgment is, therefore, annulled, avoided and reversed; and it is ordered, that the defendant be quieted in the possession and enjoyment and property of the said negro Lucy and her offspring, and that he account for the balance of the estate, in the district court, and the costs of the appeal be borne by the appellees.

Sutton for the plaintiff, I. Baldwin for the defendant.  