#### JAMES WALKER *vs.*ROBERT W. REED & AL.

A. by deed conveys to B. a negro woman in exchange for a negro boy, with condition in' the deed, that B'.’s heirs shall convey their right derived from- their grandfater to A., and, if they do not, each party is to resume the right to his negro. *Held*that, before B.’s heirs refuse to malte this conveyance of their right, the right ofB. to the negro woman is not devested out of, but remains in, him.

Appeal from’the Superior Court of Law of Mecklenburg County, at Fall Term, 1843, his Honor Judge Settle presiding.

This was an action of detinue to recover two negro boys, the children of a woman named Peg. The defendants pleaded the general issue and the Statute of limitations. The plaintiff offered in evidence a paper writing, of which the following is a copy : “Know all men by these presents, that I James Walker and Anny Reed, for various considerations and con-veniency to us both, have mutually changed negroes, viz. I the said Walker have given to her the said Anny Reed a negro girl named Peg, with two children Maximilian and a younger one, both boys, for a negro boy named Bennet, left her by her father in his last will and- testament, the girl and her issue to be and remain with her the said Anny Reed in every respect in conformity to the last will and testament of Robert Walker, our father. The said exchange of negroes to be permanent and- forever with the said Anny Reed’s heirs making the said James Walker a right from their grandfather’s last will, and without the legatees agree to the right, anyone to take their negroes; said Walker is equally bound with the legatees of said Anny Reed. In witness whereof we have hereunto set our hands and affixed our seals this 7th day of March A. D. 1831.” (Signed and sealed by Anny Reed and James Walker and attested by witnesses.) The plaintiff then proved a demand of the negroes from the defendants, who were in possession, and that they relused to surrender them. The defendants proved that the slayes *153had been in their possession and that of their father and mo. ther under' Whom they claimed title,-until they were seized by a constable, under regular judgments and executions against the father of the defendants, Hugh- Reed,, who was a witness to the paper writing above recited, and the' husband of Ann Reed, who executed the said instrument during her coverture. The said negroes, to wit, Peg and her childreh'^ were sold by the constable. At the sale the plaintiff and the defendants were present, and forbade the safe, each party claiming the negr'oes in his own right. They' were sold, however, and purchased' by one Samuel A. Harris at between eighty and ninety dollars. Alter the sale and during',, the same day, the plaintiff applied to Harris, the purcharer and enquired what he would take for the negroes — to’which Harris replied he would take two hundred dollars cribr a-hd above what he had paid for t'hefn. The plaintiff then went to the defendants and u'rged' them to buy the negroes at the price Harris asked for them. The defendants decláred they would not give that sum-. The plaintiff then insisted they should go to see Harris. They all then went to. Harris-, it being the evening of the same day of his purchase, and Harris then agreed to take one hundred and fifty dollars, above what he had *given.*The plaintiff insisted that the defendants should buy them- at that price, and told the defendants, that, if they would do so, the plaintiff would aban-, don all' claim to the claves, go their surety for the price to Harris, and'give bond to Harris, covenanting not to sue him. The defendants then agreed'to purchase the negroes-upon these terms. The negroes'were present. Thedefem dants executed their notes to Harris for the purchase money, with the plaintiff as their surety,-and the plaintiff gave his bond- not to sue Harris. Harris, then, in the presence and at the request of the plaintiff,' delivered the slaves to the defendants. It appeared that the defendants had paid Harris-' the purchase money, and' had had' possession of the slaves ever since their purchase, which was some four months before the commencement of this suit. It was proved, that the constable only offered for sale the interest of Hugh Reed; *154defendant in the said executions,-and that the negroes Were w0rth t375 each-

The Court charged the jury, that *the*plaintiff had not divested'himself of the title to the slaves in controversy by executing the paper writing above recited — that his title was the'same after executing the said instrument that it was before. The plaintiff’s counsel moved the Court to instruct .the jury, that the plaintiff did not, nor could he lose his title by a- parol estoppel. The.Court so charged the jury: but instructed them, if they were satisfied from the testimony that Harris acted as the agent of the plaintiff in the sale and de-delivery of the slaves to the defendants, then the title passed to the defendants without a bill of sale or any writing ordering a sale.

The jury returned a verdict for the defendants, and judgment having been rendered pursuant thereto, the plaintiff appealed.

*Hoke*and *Alexander*for the plaintiff.

*Boyden*for the defendants.

DaNiel, J.

This is an action of detinue, brought to recover two negro *boys,*the children of the slave Peg. The plaintiff by the deed mentioned in *the case, conveyed*Peg and her two children (the boys now sued for) to his sister Anny Reed, with the assent of her husband, Hugh Reed. She was- to hold them in the same manner, that she had held the slave Burnett (given in exchange) under her farther’s will: The slaves Peg and her two sons were then taken into the possession of Hugh Reed. The deed contains a de-feasance or condition subsequent, that if the “legatees” ('children of Anny Reed we suppose) do release to him Walker; ail’the interest which they have in the slave Burnett, under theirg.rondfather’s will,then the conveyance of Pegand her children shall become absolute, permanent and forever. If, however, the children of Anny Reed should refuse to release or transfer to Walker their right' in the slave Burnett, then each party to the deed was to be at liberty to take back *155the slave or slaves given by him or her in exchange, and hold the same as if the said deed had never been executed.

The terms of the contract in the deed are certainly very badly expressed. But we .think, from our reading of it, that we can distinctly make out-the meaning and intention efihe. parties to it to be, as before set forth. The plaintiff did not, on the trial, shew in evidence, that the “ heirs,” as they are called in the instrument, ever refused to execute to him a release of their interest in the slave Burnett. The title conveyed to Mrs. Reid, consequently, has not been divested. We therefore think, that, at all events, -the plaintiff has no right as yet, to retake Peg and her children, .under the condition contained in the deed of exchange. Hence, although we think Harris could not be deemed, upon the evidence, the plaintiff’s agent, and without deciding the effect of the plaintiff’s conduct upon his title, if he had any, we -hold, that the .judgment must be affirmed.

Per Cue jam, Judgment affirmed.