#### KENION T. WEST & AL. *vs*JOHN TILGHMAN.

Where an owner of a slave stands by and sees the slave sold by another, haring no title, and makes no objection, yet he is not thereby estopped from asserting his legal title.

The title to a slave can only be conveyed, according to the laws of this State, by a sale in writing, except when delivery accompanies the sale, or by a gift evidenced by a written instrument, the written instrument in each case to be attested by a subscribing witness and proved and recorded.

Wherever a suit will survive to a wife she may be joined with her husband in the action.

The case of *Bird*v. *Benton, 2*Dev. 180, overruled. The cases of *Governor*v. *Freeman,*4 Dev. 474, and Lente v. *Chambers,*5 Ire. 599, cited and approved.

Appeal from the Superior Court of Law of Craven County, at the Fall Term, 1848, his Honor Judge Settle presiding.

The case is as follows: Joseph Watson, by his will, gave his son, Jno. A. B. Watson, after the death of his wife, a negro slave named Reuben, and a negro woman, named Sylva. By a subsequent clause, he directs, that *164at her death, all the property he had lent her, should be equally divided between his son, John and his daughters, Teresa and Susan, with survivor-ship, upon either dying without leaving issue. John died without issue, after his mother’s death, having by deed, conveyed to a Trustee,for the payment of his debts, all his property, including the negroes Reuben and Sylva. Among the debts secured, was one to West, the plaintiff, who had married Teresa, and some to Kilpatrick, who had married Susan. The Trustee took the property' into his possession, after the death of John A. Watson, which took place in 1835, hired out the negroes in the month of until the succeeding Term of the County Court of Lenoir, when he sold them at public auction, and the defendant purchased the slave Reuben, and Kilpatrick, the plaintiff, the negro Sylva. But West and Kilpatrick knew that the slaves were conveyed in trust, and knew of the sale; both were on the ground when it commenced, and the latter continued there during the whole time, and each received a portion of the money raised by the sale, as secured creditors.

His Honor charged the jury, that if they collected from the evidence, that the plaintiffs knew of the execution of the deed of Trust, the hiring of the boy, Reuben, by the Trustee, for one month, and of his intention to sell him, and that they attended at the time and place of sale, and that one of the plaintiffs, Kilpatrick, purchased the negro Sylva, conveyed in the same deed of trust with Reuben and subject to the same claim the plaintiff now set up to him, and that if West, the plaintiff loft the place of sale w'ithout forbidding the sale or setting up any title to the slave Reuben, and that the plaintiffs, West and Kil-patrick, by their act and conduct, induced the defendant and others to believe, that the title of the Trustee to the slave Reuben was undisputed, and if they further believed, that the plaintiffs received, each of them, from the *165Trustee a portion of the money arising from the sale of Reuben, they were not entitled to recover.

Verdict for the defendant and appeal to the Supreme Court.

No counsel for the plaintiffs.

*J, H. Bryan,*for the defendant.

Nash, J.

The instruction given to the jury, in substance is, if the facts enumerated did exist, in *law,*the plaintiffs could not recover. This could not be, we think, unless *they*had transferred the slave to some other person. It is admitted that the legal title to the slave had been in the plaintiffs ; have they, in any mode known to the law, parted with it ? By the law of this State, all sales of slaves must be in writing, except where delivery accompanies the sale, or it is void, and all gifts must be evidenced by a bill of sale. In neither of these modes, have the plaintiffs parted with their title. But it is alleged, that the circumstances, proved in the case, amount either to an estoppel, or to a conveyance by them. We think neither conclusion is correct. The fact, that a person was present, when property, claimed by him was sold, without making known his title, amounted to an estoppel, was decided in *Bird*v. *Benton, 2*Dev. 180. That case, however, has been over-ruled by those of *Governor*v. *Freeman,*4 Dev. 474, and *Lentz*v. *Chambers, 5*Ire. 587. The principles governing this case are laid down by the Court in the case of *Jones*v. *Sasser,*1 Dev. & Bat. 462. There it was contended, that the plaintiff, by his concealment and *misrepresentations*of the ownership of the property, was estopped and concluded from setting up any claim to the injury of those, whom he had thus imposed on and deceived. It was ruled, that even misrepresentation, coupled with concealment, was no estoppel, and that there was no such rule of *law,*which *166precluded the plaintiff from showing his title. In this case there is no pretence, that the plaintiffs were guilty of either concealment or misrepresentation — there is no evidence that they knew of their title. For, although it is under the will of Joseph Watson, that they claimed, yet it was a matter of construction; and that they were ignorant of it, is strongly implied by one of the acts, upon which the defendant relies, to-wit: The purchase by Kilpatrick of the negro Sylva, to whom their title was just as good as that to Reuben, both being included in the deed of trust. It is difficult to imagine a motive, in making the purchase of her consistent with a knowledge of their title, unless upon the ground of fraud, which is not pretended. But even if they did know it, it would not alter the case in this Court. The case of *Sasser*further decides, that to hold, that the representations or misrepresentations of a party could transfer the title to another person, would be to violate the positive law of the State. That case is supported by that of *Pickard*v. *Sears and Barratt,*33, En. C. L. R. 117. That was an action of trover for machinery. The property had belonged to one Metcalf, who had mortgaged it to the plaintiff, to secure a debt due to him. Metcalf was permitted to retain the possession, and use the machinery. While so in his por session, it was levied on to satisfy an execution against him, and at the sale, the defendant purchased. It was proved on the trial at *nisi prius*before Lord Den-man, that the plaintiff, before the sale, had frequent conversations with the attorney of the defendants, concerning the machinery, and advised with him, as to the best mode of *raising money*on it to pay off the execution, and that he knew of the intention to sell, but at no time made known the fact of the mortgage. His Lordship refused to leave it to the jury, to say, whether the plaintiff had not concurred in the sale, on the ground that there was no evidenco of such concurrence. In delivering the opinion *167of the King’s Bench upon a rule for a new trial, he says that the plaintiff, having a “ good title to the machinery, could not be divested of it, but by a sale or gift.” He concludes, as to the ground, upon which a new trial was granted, as follows, “We think his (the plaintiff’s) conduct, in the standing by and giving a kind of “ sanction to the proceedings under the execution, was a fact of such a nature, that the opinion of the jury ought to have been taken, whether he had not, in point of fact, ceased to be owner.” Not that the facts-set forth, themselves, deprived the plaintiff of his title, but whether they were not of such a nature, as to satisfy them, that, before the sale, he had, in fact, divested himself of the title to the property, in one of the ways, known to the law, and previously stated by him, to wit : by gift or sale.

We are of opinion that the Judge below erred in stating to the jury, that if they believed the circumstances existed, as enumerated by him, the plaintiffs could not recover. Those circumstances might be some slight evidence of the fact, that, before the sale, the plaintiffs had, by the means known to the law, transferred their title to Reuben to some other person, and, thereby, ceased to be the owners. Sitting in a Court of Law, we cannot enter into questions of Equity or hardship. These are considerations, which belong to another and distinct tribunal *Sasser*v. *Jones,*3. Ire. Eq. 19. We think the action was properly brought in the names of the wives as well as in those of the husbands. Wherever the suit will survive to the wife, she may be joined in the action. *Dunstan*v. *Burweld,*1 Wil. 224.

Per Curiam. Judgment reversed and a *venire de novo*awarded.