
    *Brown v. Handley.
    January, 1836,
    Richmond.
    (Absent Cabeli., J.)
    Verdicts — When Improper to Set Aside as Contrary to Evidence. — A verdict ought not to be set aside as being contrary to evidence, unless the inference which the j ury drew from the evidence was plainly not warranted by it.
    Slaves — Gift—Effect of Declaration of Donor’s Wife Not in Husband’s Presence. — When a father has declared that he has given a slave to a married daughter, and afterwards tells her to go and take possession of the slave, the declaration of the father’s wife, in his absence, at the time the daughter takes possession, that she did not give but only lent her the slave, is of no effect to convert the father’s gift into a loan, though the daughter receives the possession from the donor’s wife, without complaining of her qualification of the gift.
    Same — Parol Gift — Consummation.—When a father has made a parol gift of a slave to a married daughter and delivered her the possession, the gift is consummated, and he cannot afterwards retract it, by refusing to execute a deed for the slave.
    Detinue for a slave, brought by Handley against Brown, in the circuit court of Greenbrier. Plea, the general issue. A verdict being found for the plaintiff, the defendant moved the court to set it aside, as contrary to law and evidence, and to order a new trial. The court overruled the motion, and gave the plaintiff judgment. The defendant excepted to the opinion of the court refusing the new trial, and appealed from the judgment to this court.
    The bill of exceptions stated the facts of the case proved on the trial, viz. That the plaintiff Handley married Betsey Brown a daughter of the defendant. Soon after this marriage, a person who wished to purchase slaves, came to the defendant’s house, and asked the defendant, whether he would sell the slave in question (a young female) who was then in the defendant’s possession; and the defendant answered, that he would not, for he had given her to his daughter Betsey: and *the defendant said, on another occasion, that he would not sell the slave, for he had given her to Joseph and Betsey (the plaintiff and his then wife). Shortly afterwards, the defendant being at the plaintiff’s house, said to his daughter, Mrs. Handley, “Go and fetch your negro girl home, when you please;” and soon after this was said to her, Mrs. Handley went to her father the defendant’s house (he being then absent from home) and got possession of the negro girl, and carried her home with her; but at the time of her so taking possession, Mrs. Brown, the defendant’s wife, told her daughter, Mrs. Handley, “that she did not give her the negro girl, but lent her to her.” Some six months after this, Mrs. Handley asked her father, the defendant, to give her a bill-of sale or deed for the slave, but he refused to do so, saying that he understood her husband’s father had refused to make him a conveyance of some land which the defendant had expected old Hand-ley to convey to his son, apd that he, the defendant, would not make a right to the slave, until a deed was made for the land: the plaintiff Handley was present, but took no part in this conversation between his wife and her father. The slave remained in the iJossession 0f Handley and his wife until the wife’s death, which happened about a year after they acquired the possession in the manner above mentioned, and about fourteen mouths after their marriage. And not long after Mrs. Handley’s death, the defendant got possession of the slave, and refused to deliver her to the plaintiff, and still retained the possession. Upon this state of facts proved, the jury found a verdict for the plaintiff, and the court refused to set it aside.
    Johnson, for the appellant.
    This was a parol gift of a slave, which would have been undoubtedly void under the provisions of the statute of 1758; and the only question is, whether the parol gift was followed by possession *in the donee within the meaning of the amendatory statute of 1787? Brown said, he had given the slave to his daughter, and told her to take her home when she pleased; but till actual delivery of possession, this parol gift passed no title; the donor was not bound to perfect the gift; he had a right to revoke it altogether, much more to qualify it by such terms as he pleased; he had a right to convert the gift into a loan. In short, the parol gift was nothing; and it was upon the delivery of possession alone, that the donee could found any claim. If the father had been at home when his daughter went for the slave, she could not have taken the possession without his consent: and he being absent, his wife acted for him, and delivered the possession as a loan, not as a gift; and the daughter received the possession upon those terms, and so admitted her mother’s authority to impose them. The daughter, conscious therefore that the gift was not perfected by the delivery of possession which she accepted as a loan, asked her father for a deed of gift. The father refused to make the deed, and in so doing ratified the act of his wife in delivering the possession only as a loan. The daughter’s husband present at the time, and hearing this refusal of the deed, made no complaint, set up no claim ; and thus admitted the father’s right to withhold the deed; in other words, admitted that the delivery of possession was not an absolute gift. As between the father in law and son in law, then, the former had a right to resume the possession at his pleasure; and, therefore, the verdict of the jury was contrary to the law and the evidence.
    Robinson, contra.
    Such a parol gift of a slave as this, if it had occurred under the statute of 1758, before it was amended by that of 1787, might have been held *void ; Turner v. Turner, 1 Wash. 139; Taylor v. Wallace, 4 Call 92; Merritt v. Smith, 6 Heigh 486. But this case depends on the statute of 1787, which declares, that the former statute avoiding parol gifts of slaves, shall not extend to such gifts of slaves whereof the donees have at any time had possession: and the preamble of the statute of 1787, shews its especial application to such cases as this now before the court. Tor it recites, that “many parents and others since the passing of the” former statutes on the subject, “had made gifts of slaves to their children and others, without deed in writing, and such donees had continued in possession of the slaves so given, under a delivery at the time of making, or after such gifts, by which the donees had been considered as the owners of such slaves, and had obtained credit thereby;” and that the then recent adjudications upon the construction of the former statutes, tended “to injure husbands who had married women possessed of slaves under such gifts;” 12 Hen. stat. at large, pp. 505, 6. It cannot be denied, that the father, in this case, had given the slave in question to his daughter. He said so repeatedly; and, in pursuance of his gift, he told her to go and take possession ’ of the slave, when s'he pleased, without saying a word about a loan. This was an authority to the donee to take the possession, absolutely, as of a gift; and the actual possession taken afterwards, coupled with the authority to take it, consummated the gift. The wife of the donor had no right to revoke his gift, or to convert it into a loan. The daughter took (as she had a right to take) the possession under the father’s gift, not under the mother’s loan. Considering it a gift, she asked her father for a deed; and he did not refuse the deed, because he had not made the parol gift, but because her husband’s father had not made a conveyance of land to him. The husband, indeed, made no complaint. But there was nothing for him to complain of; for, whatever was his *wife’s opinion as to the necessity of the deed, the property was already vested absolutely in him.
    
      
      New Trials — Verdict Contrary to Evidence. — On this question the principal case’ is cited in .foot-note to Ross v. Overton, 3 Call 309; Mahon v. Johnston, 7 Leigh 319; Collins v. Lofftus, 10 Leigh 10; foot-note to Slaughter v. Com., 11 Leigh 681; Vaiden v. Com., 12 Gratt. 728; Read v. Com., 22 Gratt. 942, 943; foot-note to Bell v. Alexander, 21 Gratt. 1. See foot-note to Brugh v. Shanks, 5 Leigh 598; monographic note on "New Trials.”
    
    
      
      Slaves — Gift.—1The principal case is cited in footnote to Barker v. Barker, 2 Gratt. 344; Mahon v. Johnston, 7 Leigh 319; Dickeschied v. Bank, 28 W. Va. 368; Scott v. Jones, 76 Va. 235. See monographic note on "Gifts” appended to Barker v. Barker, 2 Gratt. 344.
    
    
      
      These statutes were reduced Into one at the revisal of 1792, and now form the 51st section of the general statute concerning slaves &c. 1 Rev. Code, ch. Ill, p. 432. — Note in Original Edition.
    
   BROCKRNBROUGH, J.

The statute says, that no gift of any slave shall be good unless the same be made by will, or deed duly proved and recorded; but this provision “shall be construed to extend only to gifts of slaves, whereof the donors have, notwithstanding such gifts, remained in the possession, and fifot to gifts of such slaves as have at any time come into the actual possession of, and have remained with, the donee, or some person claiming under such donee.” In this case, after the plaintiff intermarried with the daughter of the defendant, the latter twice declared that he had given the slave in question to his daughter; and, about the same time, said to his daughter, “Go, and fetch your negro girl home when you please.” Shortly af-terwards, the daughter did go to her father’s house, and- did bring away the girl and carried her home; and the girl did remain in the possession of the plaintiff and his wife, till the wife’s death, which happened about a year after the possession was so taken. If the facts proved had stopped at this point, no one would question that the gift was valid. But it was proved, that when the daughter went for the girl, her father was absent from home, and her mother said to her, that “she did not give her the negro girl, but lent her to her. ’’ And it is argued, that her acceptance of the slave must be taken to be an acceptance on the terms expressed by the mother. But the jury have decided otherwise, and, I think, correctly. She obtained the possession in conformity with the directions of him who had the right to give, and the qualification annexed to that possession by one who was not the owner, ought not to impair the validity of the act of the donor. 'The right acquired by the husband of the donee, by the gift and actual possession, could not be taken away by the subsequent application of his *wife to her father to give her a bill of sale, or deed for the girl: that application can only shew, at the most, that she thought a deed necessary to perfect the title of her husband; in which she was mistaken. Nor can the subsequent refusal of the father to make the deed, invalidate his former act. I think the judgment should be affirmed. ■

CARR, J.

I am, in general, opposed to these claims to slaves, founded on a parol gift between parent and child; and it probably proceeded from this, that, on the argument, my impression was in favour of the appellant. A closer examination, however, has changed it. The parties went to trial on the general issue; and the jury found a verdict for the plaintiff, thereby establishing the gift, and that possession followed it. The court refused a new trial, and on exception taken, spread the facts upon the record. We are to judge from these facts whether the court erred. This court said in Ross v. Overton, 3 Call 319, that “a court applied to to grant a new trial because the verdict is contrary to evidence, ought to grant it only in case of a plain deviation, and not in a doubtful one, merely because the court, if on the jury, would have given a different verdict; since that would be to assume the province of the jury, whom the law has appointed the triers.” Here, we have both the jury who tried the issue, and the court which heard the evidence, and saw the manner of the witnesses, and could weigh their honesty and intelligence — we have both these, in favour of the verdict. The deviation ought to be plain and strong, to authorize this appellate tribunal to say, that the verdict was' contrary .to evidence. How are the facts? It is in clear proof, that on two occasions the father said he had given the slave to his daughter; that, on a third, he said to her, “Go and fetch your negro girl home, when you please;” that shortly after, she did go and carry the girl home; and *that the slave remained in the possession of her husband till his wife’s death, about a year after. If this evidence stood alone, there could be no ground for doubt: it would shew, clearly, a parol gift followed by such possession as the law contemplates. But there are two circumstances, changing somewhat the aspect of the case. 1. When the donee went for the girl, her father was from home, and her mother told her, “she did not give her the negro, but lent her to her.” Whether in taking the slave, the donee meant to assent to this qualification, or whether she took her under the unqualified leave of her father, considering that her mother had no power to change it, was a question for the jury; in deciding which, I certainly cannot undertake to say, that they have plainly deviated from the evidence. Indeed, I cannot even say, that if I had been upon the jury,. I should have found differently : it might have depended on matters, of which as an appellate tribunal it is impossible for me to judge. 2. The other circumstance is, that, about six months after they had the slave in possession, the donee, in her husband’s presence, asked her father to give her a bill of sale or deed for the slave, but he refused, saying that he understood, her husband’s father had refused to make her husband a deed for some land he had expected him to convey to him, and that he would not make the right to the slave until the right to the land was made. The husband took no part in this conversation. Now, as to the effect of this conversation — whether it proved an acknowledgment of the daughter and husband, that they had accepted possession of the slave as a loan, or proceeded from their ignorance that a parol gift followed by possession was valid, or was the offspring of a wish .to avoid disputes and to be perfectly secured in a title which without such security they meant to claim; of all this, I am sure that the jury and the court which tried the cause, were better qualified to judge than I *am. Therefore, I cannot say, that in the conclusion they have come to, they have grossly erred; on the contrary, I feel satisfied with it.

BROOKE, J.

I concur. I think, that the facts stated, that the father, after saying that he had given the slave to his daughter, told her to go and fetch her negro girl home when she pleased, and that the daughter accordingly went to her father’s house, took the slave, and carried her home with her, — brought the case within the meaning of the statute of 1787, and consummated the gift. The decision of Taylor v. Wallace, upon the construction of the statute of 1758; that actual possession in the donee under a parol gift of slaves, was not sufficient to perfect the title, was no doubt the cause of passing the statute of 1787, to correct that construction. It has been since often held in this court, that a parol gift of slaves, followed by possession subsequently delivered to the donee, passes the title. Here, the direction of the father to his daughter, to go and fetch her nergo girl home when she pleased, was clearly a parol gift of the slave; and the donee getting the possession, strictly in pursuance of the direction so given, though her father was not at home at the time, consummated the gift, and put it out of his power to retract it. I, therefore, put out of the case the mother’s declaration, and the father’s refusal to execute a deed of gift.

TUCKER, P.

I also concur in the opinion, that the circuit court was right in refusing a new trial in this case. Indeed, though I have always doubted the policy of repealing the statute of 1758, believing, that a statute of frauds is full as necessary in relation to gifts of slaves, as it ever was in relation to contracts for the sale of lands, and though I have always, of course, leaned against the claimant, unless the gift was sustained by very clear proof, yet, in this case, I think the *jury were right in their inference from the facts. The fact, that the father said to his daughter “Go and fetch your negro girl home when you idease,’’ amounted both to an acknowledgment of a gift, and to a delivery of possession, as soon as the donee did get possession. She did go in a short time, and took the girl, and kept her till her death. This delivery of possession rendered the gift complete, unless we are to consider it as limited and controlled by the mother’s declaration “that she did not give her the negro girl, but only lent her.” But there is no proof, that the mother was authorized by her husband so to limit and control the delivery, and thereby, in effect, to revoke the express gift which he had made but a short time before. As to the subsequent refusal of the father to execute a deed, that cannot affect the title of Handley, which had become vested and complete by the prior transaction.

Judgment affirmed.  