Superior Court of North Carolina, 1799

Hancock v. . Hovey

Superior Court of North Carolina · Decided July 5, 1799 · MOORE, J.

1 N.C. 152

Counsel

Harris , for the defendant, objected that a deed of gift duly recorded was necessary to complete the plaintiff's title under the seventh section of the Act of 1784, cap. 10, the words of which are: "And whereas, many persons have been injured by secret deeds of gift to children and others, and for want of formal bills of sale for slaves, and a law for perpetuating such gifts and sales for remedy, whereof be it enacted, that all sales of slaves shall be in writing, attested by at least one credible witness; or otherwise shall not be deemed to be valid; and all bills of sale of negroes and deeds of gift, of whatever (153) nature, shall, within nine months after the making thereof, be proved in due form and recorded; and all bills of sale and deeds of gift not authenticated and perpetuated in manner by this act directed, shall be void and of no force whatever."

Opinion of the Court

The Act of Assembly referred to does not reach this case. It does not require a deed of gift as essential to constitute a title, but merely provides that where a deed of gift is made, it shall be recorded.

HAYWOOD, J. I am of opinion that no deed of gift is necessary, under the circumstances of this case. The evil the Legislature intended to remedy was the want of a law for perpetuating gifts and sales which, before the passing of the Act of 1784, were made secretly; and the remedy designed was for the benefit of creditors and purchasers, since none others could be injured by the want of perpetuation. In this case the mischief does not exist, for there are no creditors or purchasers; nor was the transaction secret, for a delivery is made, and possession openly and publicity kept afterwards. This is very different from the sort of transaction the act aims at.

Had the transaction been secret, or were the rights of creditors or purchasers liable to be affected, I should have thought a deed of gift necessary; otherwise, the act would produce the effect of making the generality of such transactions more secret than they would have been without it; for, in those cases where the gift is intended to be kept secret, no deed of gift will ever be made, if, when made, it must be recorded, and thus made public; but if not made, the gift will be good without. Such a construction is surely at variance with the spirit of the act.

Verdict for the plaintiff.

NOTE. — See note to Farrell v. Perry, 2 N.C. 2.

See same case. 3 N.C. 86-7.

Cited: McCree v. Houston, 7 N.C. 451; Bell v. Culpepper, 19 N.C. 21;Tooley v. Lucas, 48 N.C. 148.

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