
    Henry F. Carradine vs. Samuel Collins.
    As between donor and donee the gift of A chattel is incomplete without delivery or some act equivalent to delivery ; if at the time the thing given be susceptible of transmission, actual delivery is not necessary ; it may be constructive or symbolical.
    It seems that the delivery of a deed, or having it recorded, the declarations of the donor, the situation of the parties, are circumstances which the jury may tfike into consideration on the question as to whether there was a delivery from the donor, to the donee; but without the jury are satisfied that there was a delivery, they cannot find that it was a gift.
    In error, from the Yazoo circuit court; Hon. Morgan L. Fitch, judge.
    Samuel Collins, .a minor, by William BattaiJe his guardian, brought an action of replevin against Henry F. Carradine, under the act of 1842, for two slaves. On the plea of not guilty,- plead by Carradine, a trial was had, and verdict was rendered in favor of Collins. Bills of exception were sealed on the trial, from which it appeared that Carradine was a half brother of Collins, both being children of the same mother; that Collins arid his three or four sisters lived with Carradine several years after the death of their mother, and that said slaves had ever since remained in the possession of Carradine.
    Lewis A. Stevens, a witness called by Collins, proved that he had lived with Carradine as his overseer, and had heard Carradine say that several negroes, naming them, including the two sued for, belonged to Collins and his sisters. Samuel Boylan, a witness for Collins, also proved that he had had frequent conversations with Carradine, and that he always understood from Carradine that the negroes were left to Collins and his sisters by their mother, who was also the mother of Carra-dine. Collins also gave in evidence to the jury, a transcript of the record of the district court of the United States for the southern district of Mississippi, showing the schedule of debts and property filed by Carradine in the district court, on his application to be discharged as a bankrupt. The schedule did not contain the negroes in controversy; and also, that on the 7th of November, 1842, Carradine was duly declared a bankrupt, and discharged from his debts.
    On the trial Carradine gave in evidence a deed dated 4th May, 1831, from himself, conveying certain slaves therein named to Collins and his sisters, and in it he conveys the slaves in controversy to Collins, and in the habendum of the deed conveys the slaves forever, and adds the words, “under my own proper guardianship and protection.” The counsel of Carra-dine asked the court to give the following instructions:
    1. That if they believed, from the evidence, that the negroes in controversy have always been in possession of defendant, H. F. Carradine, the donor, and if they further believe, from the evidence, that when Carradine made the deed, he reserved the use of the negroes until he chose to perfect the gift by delivery, then they must find for the defendant.
    2. That if they believe, from the evidence, that it was the intention of the donor Carradine, at the time of making the deed, to resume the management and control of the negroes until he perfected the gift by delivery, then the plaintiffs title is not perfected, and they will find for defendant.
    3. That if the jury believe, from the evidence, that the reservation of guardianship and control is consistent with the deed, then the defendant has a right to the use and control of the negroes in controversy during life, and the jury will find for defendant.
    4. That if the jury believe, from the evidence, that the gift of the slaves has been unaccompanied by delivery of the possession to the donee, then the title did not vest in the donee, and the jury must find for defendant.
    All of which instructions were refused by the court. The court then charged the jury, at the instance of the counsel for the plaintiff, as follows:
    
      “ That if they believed, from the evidence, that Samuel Collins had always lived with defendant since the making of the gift by the defendant of the slaves in controversy, then they had a right to infer a delivery of the slaves to said Samuel Collins; and further, that the words ‘ guardianship and protection ’ embraced in the habendum of the deed, did not authorize defendant to retain the property in controversy in his possession.”
    Carradine moved for a new trial, which being refused, he prosecuted this writ of error.
    
      Mount and Burrus, for plaintiff in error.
    
      John Battaile, for defendant in error.
    There is no difficulty in the case, because there is clearly no error in the judgment of the court below. The first, second and fourth instructions asked for, counsel for plaintiff in error did not apply to the facts of the case. The donees are the half brothers and sisters of plaintiff in error, and lived at the time and the most of them have continued to live with the plaintiff in error until just before the trial of the cause, as appears from the evidence. From these circumstances and the relationship of the parties, as much, and all of the possession that could be delivered to the parties, donees, and as complies with the requirements of the law, was delivered to and had by the donees. 5 Ran. 211 —220; 4 H. & M. 151; 3 Munf. 122.
    The third instruction asked for by plaintiff in error was also rightly refused, because there was no reservation of guardianship and control in the deed, and had there been, it would have been inconsistent with the deed and void. There are no terms in the deed which in law will bear such a construction as would establish such reservation.
    The instructions asked for defendant in error were certainly the law of the case. The words in the deed of gift, “ under my own proper guardianship and protection,” were of no effect and inoperative. They were repugnant to the estate created by the deed, and are void therefor. Conditions in a deed or other instrument of writing repugnant to the estate created by such deed, are void. 8 T. R. 60; 1 Mod. 141; 6 Pe-tersdorff’s Abr. 60; 4 M. & S. 66 ; 3 Abr. of Am. Com. Law Cases, 208, 209, (note) ; 2 Caines’s R. 345, 352, 353.
    If the said words have allusion to the guardianship of the minors, the donees, they would be equally void. For no man can by our law be self-constituted legal guardian of minors. Unlawful conditions in a deed are void. 1 Bac. Abr. 644; 1 Bouv. Law Die. 202.
    Guardians have a legal right to the exclusive possession and control of the infant’s property so long as the guardianship continues. 3 Rob. (Va.) Pr. 470; 6 R. 559, and authorities there cited. 2 P. Wins. 122 ; 7 J. C. R. 150; 5 lb. 66 ; 8 Cow. 198; 17 Wend. 75.
    The motion for a new trial was also properly overruled. The objections to the verdict’s standing, embodied in the reasons on which the motion was based, have already been met and answered in part. The evidence, in the shape of affidavits to sustain the motion, fall far short of showing anything like surprise. Such an excuse of surprise might be urged in every case. Nor is there evidence of, nor was there any interference with, the jury on the part of one of the witnesses of plaintiff below. The attempt to show this is a signal failure.
   Mr. Chief Justice ShaRKey

delivered the opinion of the court.

This was an action of replevin by Collins, a minor, by his guardian, against Carradine, for the recovery of two slaves. Several witnesses proved that Carradine had repeatedly declared that the slaves belonged to Collins. Carradine’s schedule as a bankrupt was also introduced, which did not include these negroes as part of his property. The defendant, in the court below, to rebut this showing on the part of the plaintiff, introduced a deed of gift, made by himself to Collins, who was his half-brother, which was admitted to have been recorded. This deed of gift it seems was the foundation of Collins’s title. The defendant took exceptions to the decision of the court in giving certain charges asked by plaintiff’s counsel, and in refusing charges asked for defendant. A new trial was also moved for and overruled, to which the defendant excepted. We shall confine our remarks to two of the instructions which the court refused to give.

In the first place the defendant’s counsel asked the court to instruct the jury that if the negroes had always been in possession of the donor, and that when he made the deed of gift he thereby reserved the use of the negroes until he should choose to perfect the gift by delivery, then they must find for the defendant. The fourth instruction asked, was that if the jury believed, from the evidence, that the gift of the slaves was not accompanied by delivery of possession to the donee, then the title did not vest in him, and they must find for the defendant. It seems that when the gift was made, and for several years afterwards, Collins lived with Carradine, and that the negroes during that time had remained in Carradine’s possession.

The principle invoked by the charges asked is, that no gift of chattels is valid without delivery, and by refusing to give the charges, especially the last, the court in effect decided that such a gift may be valid without delivery, either actual or constructive. So the jury must have understood the law. As between donor and donee, the gift of a chattel is incomplete without delivery, or ¿some act equivalent to delivery, if at the time the thing be susceptible of transmission. We do not say that actual delivery is necessary; it may be constructive or symbolical. Perhaps the delivery of a deed, or having it recorded, might be regarded as circumstances sufficient to amount to delivery, or to justify the presumption that delivery had been made. We do not now decide what is a sufficient delivery, or what is sufficient evidence that it was made. We only decide that delivery, actual or constructive, is necessary. This was the doctrine held by this court in Thompson v. Thompson, 2 How. 737, and in Marshall v. Fulgham, 4 Ib. 216. And it is in accordance with the current of decisions in other states on this subject. Cook v. Husted, 12 Johns, R. 188; Grangiac v. Arden, 10 Ib. 293. Delivery is a question of fact for the jury to determine. In the last case cited it was decided that the jury had a right to take into consideration the repeated declarations of the donor that a gift had been made. The subject of the gift was a lottery ticket by a father to his infant daughter. He wrote her name on the back of the ticket, but received the prize himself, and this circumstance, accompanied by his declarations, was deemed sufficient to establish the gift, although there was no proof of an actual delivery. In this case the declarations of Carradine, the situation of the parties, and all other circumstances might have been left to the jury, but they were of course of no value when the jury must have received the impression that no delivery was necessary.

The judgment must be reversed, and cause remanded.  