Penny v. Toulouse

delivered the opinion of the court.

The plaintiff, Ann Matilda, wife of J. Penny, alleges that she is the legal proprietor of a mulatto slave named Jourdan, now in the possession of the defendant, Toulouse. She alleges title to him in virtue of a notarial act, annexed to and making part of his petition.

The original defendant denies the title of the plaintiff, and asserts that he is the just owner in virtue of a sale from John Reed, who is cited as warrantor.

The answers of Reed also denies the title of the plaintiff, and avers that the act of sale and donation relied on by the plaintiff, is simulated, null and void, being made to a minor, and accepted contrary to law, and with the fraudulent intent *113of covering the property of A. A. White, the father of the plaintiff, from his creditors. He further alleges that the slave was the property of White, and as such, was seized and sold under execution, in 1823, and- was purchased by him, the respondent, band,fide.

The act relied on by the plaintiff as evidence of title, purports to be a sale of the slave in question, together with his mother, from John Noble to Alexander White, for the price of seven hundred dollars; in the same act the purchaser declares that he makes the acquisition for his daughter, Ann Matilda, aged about seven months, and he makes to her a perfect and irrevocable donation in the best form donations could be made, and he accepts the donation in the name of his child.

As between Noble and White, this act undoubtedly contains all the essentials of a contract of sale, and the title of the slaves vested in White. It only remains, therefore, to inquire whether the act furnishes evidence of a valid donation from White to his infant daughter.

It is contended on the part of the defendant, that the act, as a donation, is null and void, because it has not proper parties, the donor himself accepting for the donee; because it never was transcribed in the office of the recorder of mortgages ; and because it is not accompanied by any estimation as required by law; and he relies on the code of 1808, pages 220, article 53 ; 222, articles 62 and 64; 218, article 48.

We have not thought it necessary to inquire whether the father’s acceptance for his child under the age of puberty, would be valid, or how far the price mentioned in. this act might be considered as a sufficient estimate to accompany the donation ; because, admitting the donation, in this: case, to-be sufficiently formal in these respects, it has appeared to us that the want of inscription is alone fatal. The code in force at the date of this transaction required that a transcript of the instrument containing a donation of property susceptible of mortgage should be recorded in the office of the register of mortgages, and that the want of such transcription might be pleaded by any one except those who were charged to have *114the transcription made, and the donor, and that minors should not ¡jg entitled to restitution against the want of such transcription or acceptance, saving their recourse against their tutors or curators. Articles 62, 63, 64, page 222.

This being a petitory action, and the plaintiff having failed to show title in herself, it is useless to examine a question which arises on a bill of exceptions, whether the court erred in admitting as evidence, to show title in the defendant, a copy of the act of sale.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.