Leonard, Judge,delivered the opinion of the court.
The question here is, as to the effect of the alleged instrument of gift under which the intestate claimed the slave in controversy, from Howdeshell, the original owner.
This instrument was not a recorded deed, and the possession of the property given did not accompany it, but remained with *165the donor until his death, and the slave was then hired by his administrator to the defendant. The transaction between Howdeshell and the plaintiff’s intestate was an imperfect gift, remunerative it may be for services rendered, but still purely voluntary ; and under the third article of the law of 1835, concerning slaves, was altogether ineffectual to effect a change of legal ownership, even as between the parties themselves for want of the solemnities there. required. Under our law, as it stood when this transaction occurred, in order to perfect a gift of a slave, so as to divest the title of the giver, even as against himself, there must have been either a change of the possession or a recorded instrument of the character designated in the statute. The law is so written, and it is not pretended that either solemnity was observed here. There is no ground, therefore, for insisting that the gift transferred the title even in a controversy between the original parties. Our statute, which came here in 1804, is a copy of an ancient Virginia act, and the construction we now put upon it is the same given to the Virginia act in Durham and wife v. Dunkly (6 Rand. 14).
All of us concur in affirming the judgment; but Judge Scott does not concur in the grounds upon which it is here put.
Scott, Judge.There is no deed of gift in this case. The instrument claimed to have conveyed the slave is not under seal. There then being no seal and no actual delivery of the slave, the instrument amounted to nothing more than a contract to convey, and passed no property. In my opinion, a deed of gift, under seal, without actual delivery, will pass a title to a slave, notwithstanding the late statute concerning slaves. The common, law respecting gifts was in force notwithstanding the statute, leaving it to operate in cases within its provisions. (Swartz v. Chappell, 19 Mo. 304.)