
    
      Fanny vs. Dejarnet's Administrator.
    motion.
    Error to the Oldham County Court.
    
      Slave, Emancipation. . Statute. Written Instrument,
    
    October 10.
    émanc?pated° by anymstrument of. wri-necessary that such in-sealeifor recorded in Butslave have itre™^ corded, if be choose to per-pe uate it.
   Judge Robertson

delivered the opinion of the Court.

ON the 10th day of May, 1822, Thomas Dejarnet signed and acknowledged, in th'e presence of three attesting witnesses, a deed for emancipating Fanny his slave.

At the October term, 1824, of the Oldham county court, Fanny moved the court to hear proof of the deed, and admit it to record. The administrator of Dejarnet, (he having died) resisted the motion. After a thorough examination of the subscribing witnesses, and others,the court refused to record the deed; and thereupon, Fanny has prosecuted this writ of error.

The act of 1798, declares that no slave shall be emancipated, except by deed, acknowledged and recorded in the county court.

But the act of 1800, declares, that slaves may be emancipated by any instrument of writing.

Tt has been decided, and we have no doubt, correctly, by this court, in “Winney vs. Cartwright, III. Marshall, 493, that the act of 1800, repealed so mllch of that of 1798, as required a seal, and record-*n8 in ^ie county court, as necessary to the emanci» pation of a slave.

But in the same case, it is stated, as the opinion of a majority of the court, that the person liberated, may ^*ave fh*3 instrument of manumission proved ancl recorded “inperpetuam rei, memoriam,” and that, consequently, such an instrument, like a will, may be recorded on proper proof of its execution, although a(q. 0f jg00, does not expressly require it to be recorded, nor provide any mode for recording it.

Whatever might have* been our opinion on this last point, if no construction had ever been put upon these two statutes, by this court, we are not inclined to make an innovation on what has been recognized, and acqiuesced in, as the law of the land, when the case involving no principle is such, that although the correctness of the exposition which has been given, is somewhat questionable, it is not so important^ whether the law shall be expounded inone way orinanother; as it is, that it should be known and established

The only point to be considered, therefore, is, whether Fanny proved such facts, as entitled her to have her deed recorded.

The execution of the deed was well proved; the fact of its having been signed, sealed and acknowledged, was not disputed. But the capacity of De-jarnet, was called in question. And on this fact, the evidence was various and apparently contradictory. Two of the subscribing witnesses, and some others, swore that they were inclined to the opinion, that when he acknowledged the deed, Dejarnet was “won compos but they admitted that he was as rational, as he had been, for some years, and some of them assigned reasons for their opinions, which would not justify them. They also proved, that he was in the habit of making shuttles and selling them.

On the other side, it was proved, that Dejarnet had once been found a lunatic, by inquisition, and bad been under4 the controul of a committee; but, that before the deed of emancipation was acknowledged, he had been liberated from his committee, and restored to the dominion of his property, on proof of his restoration to reason.

It was also proved, that he had made two wills, many years before the date of the deed, and when his sanity was not doubted, in both of which, he liberated Fanny. It was also proved, that it was the “dying request” of Mrs. Dejarnet, (the wife of Thomas,) that Fanny should be manumitted, whenever she should bear five children, one for each of her (Mrs. D’s) children; and that Fanny had become the mother of more than five children, when the deed was executed; and other witnesses swore, that they had no doubt, that he was compos mentis; one of these was a subscribing witness to the deed.

These facts tend to shew, that it was the settled and matured purpose of Dejarnet, for years, to set Fanny free; and that he was urged by the last injunctions of his deceased wife, not to change this deter-miftation, but to give liberty to Fanny, so soon as she should be able to present to each of his children* one of her own, as the price of her freedom.

Denny and Armstrong, for plaintiff; Monroe, for defendant.

He did, not only what he had been long predetermined to do, but what, as a rational man, he would have felt it due to the memory of his departed wife, not to neglect, and what he frequently said, he never would omit. We cannot doubt, that he knew well, what he was doing, and was fully competent, (although a man of dim intellect) to estimate the consequences. The facts evince the exercise of reason, as well as the flow of a reflecting benevolence. Such an act could not be nullified by this court.

The deed should be recorded, not because its registration will be necessary, to the freedom of Fanny, but because she desires it for security, and desiring it, has a right to do it, according to the case of Winney vs. Cartwigbt.

How far the recording of the deed, will conclude the rights of all concerned is a question, that is not now before us.

Wherefore, the order of the county court is reversed, and set aside, and the case remanded with instructions to admit the deed to record.

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■ 1st. It does not appear that the bill of exceptions, taken to the decision of the county court, contains all the evidence. After the plaintiff had given her evidence, it is said, “upon all which, the said negro, by her counsel, moved the court to record said deed of emancipation, which was objected to by John Dejar-net, and the objection sustained by the court,” &c. But it is not said, the defendant did not introduce evidence. And it is not said the plaintiff’s evidence was all giyen on the trial.

This deficiency in a bill of exceptions, has been, times out of number, ruled to be fatal to the parjfy complaining of the decision.

2d. It does not appear that the county court of Oldham had any jurisdiction of this matter. The act of 1798, II. Digest, 1155, Sec. 27, authorized deeds of emancipation to be acknowledged or proved in the county court where the owner resided. And the court has held that the writing by which a slave may be emancipated, under the act of 1800, may also be proved and recorded. And because there is some authority for this opinion, and the question has been considered by the court, nothing more will be said on it.

It is most earnestly contended, that if the writings which have their effect under the act of 1800, are to be recorded, they must be proved and recorded in the county court of the county in which the grantors in the deeds reside, as required in the cases of deeds of emancipation, under the act of 1798. And the instrument of emancipation in this case, was a deed, if any thing; it is sealed. There is no reason for allowing the instrument to be recorded in a distant county, after the grantoris death; and there is in favor of confining the jurisdiction to the county of the grantors, such strong reasons supported by analogy, and all the rules of propriety, that no apprehension is entertained that the court will be inclined to extend the principles of the dictum, in the case of-Marshall.

I do not believe the court will allow such instruments to be proved and recorded in any county court in the state, where the negro may find the justices of the peace, or the clerk, the more suitable to the purpose.

Now, there is no proof in the whole bill of exceptions, of the residence of either the grantor, Dejar-net the elder, or of John Dejarnet, the administrator. And the court may, must, judicially, know the deed offered for record was executed before the county of Oldham was established; whether the grantor resided within the present boundaries of Old-ham, is a matter left entirely at large*

Surely this court will not indulge a presumption, that the residence of the Dejarnets or either of them, was within Oldham, as it now exists. In the cases of the registration of deeds, the certificate of the clerk has no effect, unless it be shown the land conveyed, is situated within the proper county. Hence the clerk, in admitting a deed for land, out of his county, to record, does a void act. And if he were to refuse to do such- an act, surely he would not be compellable, by any -writ of error or mandamus, nor would he be answerable to the party applying to have such act done.

If the county court had entertained the cause and admitted the instrument to record, there might be some pretext, for indulging presumptions in fa-vour of their act; but the justices having refused to admit the paper, no presumption can be indulged against their decision.

But I deny, that if the county of Oldham does now embrace the spot of ground, on which the grantor resided at the time he made thq deed, and when he died, the jurisdiction, would therefore, belong to that county. It was the residence, at the making of the deed, that gave the jurisdiction, and that jurisdiction attached, the instant the deed was executed, and vested in the county court of Jefferson; and we do most earnestly insist, mustst.ill remain there; this is not like the case of an ordinary action, transitory or local. In the case of transitory actions, the execution of the process, gives the jurisdiction. In the case of local actions, it is the local situation of the thing, in controversy, which gives the jurisdiction. I will not stop to inquire, what went with the jurisdiction of the local actions, which originated within thepresent limits of the county of Oldham. Whether the jurisdiction of such cases, appertain to the old counties of Shelby, Henry,and Jefferson; but will refer the court to the act of the legislature, establishing the county, found in Session Acts of-It is to this effect.

But I leave this question, of the local actions, because I do not think, this case governed by the same principles. Here, it was not the thing in controversy, as in the local actions, which gave the ju•risdiction. It was not the act, or the place of the act, but the residence of the party, making the grant, which fixed the jurisdiction. This jurisdiction, I insist, was not affected by any change of residence of the grantor. But be this as it may, the jurisdiction of the county court, could not be ousted, by the estab-lishmentof anew county, which might take off into it, the old residence, now the grave of the grantor. It is impossible to conceive of the mode of such an operation.

2d. It is contended, that even, if the county court had jurisdiction, to admit this instrument to record, no writ of error lies to this court, to compel that court, to record the deed. The first acts for the registration of deeds allowed them to be proved or acknowledged-in court; afterwards, the clerks were permitted to take the proof, or receive the acknow-ledgement of deeds for land, and yet, there never was a case of an appeal or writ of error, from the decision of a county court, refusing or admitting a deed to record. Such a thing never was thought of, by any one.

Again, no appeal, or writ of error, ever was attempted, in either Virginia or Kentucky, from any decision of the county court, refusing or admitting to record, a deed of emancipation.

Suppose this court now, “set to,” and take jurisdiction of the controversies in the county courts, in relation to deeds of emancipation, (and it is likely, they may beepme numerous.) Will you not be bound to entertain also the cases arising out of deeds of conveyance?

But the county courts are not now, usually applied to, to admit deeds for land to record; they may, however, be applied to now; but what will the court do with the erronéous decisions of the clerks of the county court?

Might not the plaintiff in this case, apply to the clerk, as well as to the county court? 1 do not see why, if indeed, the decision is to stand, which allows such instruments to be recorded, any where, they shall not be recorded, as other instruments of conveyance, are allowed to be registered.

But the clerks are permitted to receive proof of such papers, find can this court say the like cases, before the county court, shall be revised here, and the decision of the clerk, remain unalterable? Or how will you approach the clerks? by mandamus? or how? And why shall not the county courts be approached in the same mode?

Is this power of hearing, proof of deeds, and admitting them to record, judicial? or what is it? How is it that it is exercised by both clerks and courts? and this too, notwithstanding the constitution has divided the executive and judicial power?

But this court, has given costs against the owner of this slave, in her favor, without deciding whether she is free or not. In feet she is left by the opinion, just as the county court left her, excepting, thatitis now proposed, the instrument must be recorded. In this, it is hoped, the court may be inclined to reconsider.

Again, if such deeds are to be proved and recorded, ought this not to be offered in the grantors lifetime,

A re-hearing is prayed.

The petition for a re-hearing overruled.  