#### ELIJAH GASKILL *v.*WILLIAM C. KING.

When a deed by a husband for a slave was signed and sealed, but hot delivered, in the presence of a subscribing witness, but was afterwards delivered by the husband to his wife for the benefit of the grantee, *Held, first,*that the delivery was good and enured to the benefit of the *grantee*— Held, *secondly,*Pearson, J., *dissentiente,*that when the deed was signed, sealed' and attested by a subscribing witness, a delivery, not in the presence of the attesting witness, might'be proved by a third person, so as to satisfy the requisitions of our Statute relating to the transfer of slaves.

After the death of a husband,, the wife is a competent witness to prove the execution of a deed made by him in favor of a third person.

The cases of *Harrison*v. *Burgess,*1 Hawks 384, *Tate*v. *Tate,*1 Dev. and Bat Eq. *22,Hester*v *Hester,*4 Dev. 228, *Vines*v *Brownrigg,*4 Dev. 265, and *£3Andrews*v *Shaw,*4 Dev. 70, cited and approved.

Appeal from the Superior Court of Law of Carteret County, at the Spring Term 1851, his Honor Judge Caldwell presiding.

The action is detinue for several slaves, which the plaintiff claims as the administrator of James Gaskill, deceased, and the defendant claims under a deed of gift from James Gaskill to Anson Gaskill, son of the former, and an infant ward of the defendant. It was tried on *non detinet,*and the defendant produced a deed from the father to the son, dated in February 1833. To prove the execution thereof, one Chadwick deposed, that, at the date of the deed, James Gaskill came to a house where he was, and requested him to write a deed of gift for the slaves from him to his son Anson, who was then an infant of tender years and not present; saying that he did it at the request his wife, whh wished those negroes given to Anson-, as they were part of those, which came by her, and Anson was the only child by that marriage: that he wrote the deed, and it was signed *212and sealed by Gaskill, the father, and at his request was attested by this witness and another person, as subscribing witnesses, and then Gaskill took it and carried it away : that, about two years afterwards, Gaskill saw the witness and said to him, “I have changed my mind about that deed you wrote for me and do not wish it proved,” and'the witness replied,, that he had not seen the deed, since the day he ■yvrote it, and thereupon Gaskill remarked, “ I thought my wife had given it to you to carry to Court and prove.” The defendant further offered Mrs. Gaskill, the widow of the intestate, to prove that her husband handed the deed in question to her, and told her to take care of it for Anson, and have it. proved and recorded for him, whenever she pleased : that she then took it, and put it in her trunk, separate from her busband’s papers, and he -never saw it after-wards to her knowledge; and that he died in 1836, and shortly, afterwards she had the deed proved and registered.

The counsel for the plaintifi objected to this evidence of Mrs. Gaskill. But the Court received it, and then instruct-ted the jury, that, if they believed the witnesses, the evidence was sufficient to establish the execution and delivery of the deed. After a verdict and judgment for the defendant, the plaintiff appealed.

*W. H. Haywood*and *J. W. Bryan,*for the plaintiff.

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

Ruffin, C: J.

Upon the question, whether there was legal evidence of the delivery of the deed, the cases of *Vines,*v. *Brownrigg,*4 Dev. 265, and *Andrew*v. *Shaw,*4 Dev. 70, are in point. They lay it down, that the act of 1806 does not create any new rule, as to the proof of the execution and delivery of a deed of gift of slaves ; and that, if the subscribing witness, from want of integrity, will not, ©r, from want of memory or knowledge, cannot, prove the signing, sealing and delivery of the deed, the. deficiency in his *213evidence may be supplied by that of the other witnesses.' Those adjudications and the reasons for them are attacked on the ground, that the statute requires a deed of gift to be attested by at least one credible witness, and that he shall prove the due and fair execution of it on the trial. It is argued, that delivery is an essential part of the execution of a deed, and, indeed, that it is no deecl until delivery : and thence, that the subscribing witness must attest the delivery as well as the signing and sealing. But that seems to be rather a play on words, and an • adherence to the letter, without regard to the sense and purpose, of the Statute, which would render it absurd and inoperative. It is true, that, technically, delivery forms part of the execution of a Seed ; that is, it. is not a deed without delivery. But, in common speech, execution means generally signing and sealing a paper, as contradistinguished from its delivery.' It seems plain, that it is to be understood in that sense in statutes, which require subscribing witnesses ; for no one ever thought of delivering a deed before its attestation.— This verbal criticism, overlooking the context and nature of the thing, would destroy the attestation of Heeds delivered as escrows, unless the same person happened to be the witness to the signing and sealing and to both the first .delivery and the final one ; for, until the latter, the instrument is not a deed, and, so, the attestation could not be that of a •witness to the deed. Thus, also, the statute of devises uses the language, that no last will shall be good, unless such last will be written in the testator’s life and signed by him, and be subscribed in his presence by two witnesses at least;, and, then, that the same shall be proved by at least one of the subscribing witnesses, but, if contested, it shall be proved by all. What is to be subscribed by the witnesses ? The will, answers the statute. But, by the same statute, *litera-*tim, it is not a will, until it be subscribed by the two witnesses ; and then, according to the argument, the attestation must be null, since it was-nol a will — that is, a perfect will *214—upon !he subscription of the first witness, nor indeed until the death of the testator. That cannot be the meaning of the statute. On the contrary, it is manifest, that *“*such last will shall be subscribed by two witnesses” means, that the paper writing, purporting to be the will, shall be thus subscribed. Accordingly, it has been supposed to be perfectly settled, that the two witnesses need not even subscribe together, but may do so at different times and not in the presence of each other. The ground, on which *Vines*v. *Browning*and *Andrews v. Shaw*are impeached, thus seems to the majority of the Court altogether unsatisfactory in itself, and to leave those cases with all the authority, to which, as judicial precedents, they are entitled. The point decided 'distinctly arose in each case; and, upon mature consideration, the judges held, that it was not the purpose of the act of 1806, more than that of 1792, to require more to be proved by the witnesses to the writings mentioned in them, than by the witnesses to other instruments, but that the intention was merely to restore the rule of the common law, that upon trials such instruments were to be read upon proof of them then made by the witness, and not upon the proof, on which they were registered. That was thought to be the whole scope of the act of 1806, and, the more especially, as it was but applying to it the construction known to have been invariably put on that of 1792 couched in like language. Those decisions were made in December 1833, and have been fully acquiesced in, we believe, ever since, by the profession, and not questioned until the present time. They have, besides, received the sanction of the legislature. In revising the body of the statute laws in 1836, not only is the first section of the act of 1806 re-enacted without alteration, but, with those decisions before the legislature, the third section of the act of 1792, and the second of that of 1806 are incorporated into one section, saying that on trials the due and fair execution of written conveyances of slaves, by way of gift or sale,. *215shall be proved by the subscribing witness; thus expressly putting the two on the same footing, as the Court had by inference before held it had been intended to do. Rev. St. ch. 37, sec. 21. It would be a public mischief, in this state of the matter, to over-rule those cases ; for, if the point now agitated is not to be considered as1 thus put to rest, it would seem that nothing is to be deemed settled in our law.

It was, however, further contended in the argument, that although that may be generally true, here the deficiency is not supplied because the wife was not competent to accept the delivery, nor to prove it. "As to the competency of Mrs. Gaskill to give evidence : It is true, she could not have done so in her husband’s life time, in a controversy to which he was a party, both in respect of his interest and person. But when he died, her exclusion, as far as it arose Irom the interest of the husband or the policy of the law, ceased ; and she became competent in any suit by or against the husband’s administrator, to give evidence against the administrator, though not for him. The first she can do, because she swears against her interest, which is always allowable ; the latter she cannot, beeause the effect of her evidence would be to increase the fund, out of which she is to have a distributive share, or repel a charge on it. But the question of her capacity to give evidence in this case is much like that started in *Harrison*v *Burgess,*1 Hawks, 384: whether, upon a caveat of a husband’s will, the widow could prove, that he depositedit with her for safe-keeping, so as to bring it within the act of 1784: on which the opinion of the Court was, undoubtingly, in the affirmative. In truth, this communication must, from its nature, have been made to the wife for the express purpose that she should make it known so as to effectuate the deed; and therefore, the case falls directly within that of *Hester*v *Hester,*4 Dev. 228. As to the other part of the proposition, namely, that the delivery to the wife was not a delivery of the deed in law: This is said on the ground, that husband and wife *216iirc one, and thence is derived the idea, that the delivery to her was retaining the custody in his own hands; and, so, lie did not part from the control of the instrument, and it never became his deed. The Court cannot adopt the reasoning. In the case just cited, this notion was repudiated. For, although, to many purposes husband and wile are one, yet they are naturally two persons, and to many other purposes they ate distinct in a legal sense, both *criminaliter*and *cioilüer;*and among those instances it was there held, that a wile might be a depository of her husband's will as any other friend might be. That seems to be directly applicable to the case in hand. It is common doctrine, that a wife may be her husband’s attorney, and, with the husband’s assent, the attorney of another person. There is nothing in their relation to forbid that. If a third person, then, had made this deed, and delivered it to the wife for the son, there can be no question oí the delivery. , For, not only is it delivery to the donee’s attorney a delivery to the donee, but it has been long laid down, that a delivery to a stranger for the donee is suilicient and makes it a deed presently, and until he disagree thereto. The old cases were looked into in *Tate*v *Tate,*1 Dev. and Bat., Eq. 22, and the conclusion there drawn from them is, that when the maker of a deed parts from the possession of it to any body, there is a presumption, that it was delivered for the benefit of the gaantee, and it is for the maker, to show the contrary. If, indeed, the husband had professed to deliver the deed to'his wife, or to any one else, to keep for him, or subject to his disposition/the presumption just mentioned would not arise. But that was not the fact in this case. The deed was expressly delivered to the mother for the son. The wife did not take it, as wife, or the servant of the husband, but exactly the contrary. The intention was, that it should operate as a deed to the son. It is said, however, that he had a legal dominion over her, and might have compelled her to give him up the paper, Whether he could or not, de*217pends upon the question, whether she held the instrument as the husband’s or the son’s property. He might, it is true, by superior strength and his authority over the person of the wife, have forcibly compelled her to part from the paper. But he could not have done so rightfully, if he parted from the instrument as his deed for one instant; for, he would have no more authority, legal or moral, to take from his wife a deed made by him to his son and in her custody for the son, than he would have to take a deed made by a third person and left with her by the donor or donee to keep for the donee. The dominion of a husband over the wife is given for his security and her protection, and to those ends •will be upheld. But the law will not allow it to be abused and perverted to the prejudice of other persons, and such of their rights as are founded in justice and law. In this case, by the act of delivering the deed to the mother for her son, the husband expressed in the strongest manner he could, that she might act on behalf and for the benefit of their child in taking and keeping the deed as the son’s; and it became at once as operative as if it had been put into the hands of the infant himself, and could not be recalled.

Pearson, J.

*dissentiente.*The deed of gift was signed and sealed in the presence of two, who signed their names as witnesses, but the paper was not delivered in their presence ; and, if it was delivered at all, the delivery was made some time afterwards to the wife of the donor, who alone proved the delivery after his death, when it was registered.

The act of 1806 requires a subscribing witness to all deeds of gift for slaves. To hold, that in this case there is a subscribing witness to the deed, is, in my opinion, contrary to the meaning and intent of that Statute, and I am forced to entei my dissent

“A deed is a writing on paper or parchment sealed and delivered.” Signing is now made also necessary in most cases by Statutes. A subscribing witness to a deed is one *218who sees it signed, sealed and delivered, or hears it acknowledged, and signs his name as a witness, at the instance of the maker — he is a witness provided by law to guard a* gainst fraud and perjury.

One, therefore, who sees a paper signed and sealed, and signs his name as a witness of these two facts, but who is unable to prove its final consummation as a deed by delivery, does not come within the above definition of a *subscribing witness to the deed ;*and, therefore, *the deed*in this case has not a subscribing witness as required by the Statute.

What reason can be assigned," why the Statute should seek to guard against fraud and perjury in reference to two of the acts necessary to make a deed, and provide no such guard in reference to the third, which is the final and most important act, and the one, about which controversy is ■most apt to arise, and as to which a safeguard is most needed, -apd fraud and perjury most easily perpetrated ? As to -the-signing, an attempt at perjury may usually be detected by the handwriting. As to the sealing, that, since the use of a mere scrawl, amounts to but little. The delivery is the act most exposed to be procured by fraud or to be proven by perjury. It seems to me a strange construction, by which the Statute is made to require a witness as to the former, to sign the paper at the instance of the donor, and yet to provide no witness as to the fact, that the delivery was his deliberate and well considered act.

The particular facts of this case show, that such a construction makes the Statute a dead letter, so far as regards ■any useful purpose. It is clear from1 what the donor said to the witness, about his not wishing the deed proven, some two years after it was signed, that what he did was by the importunity of his wife to give her child a preference over ■his other children, and he was reluctant to do it. There was, then, a necessity of clear proof, that he made the delivery, as to which there is no evidence, but that of the *219wife. Suppose, under the decision of *Hester*v *Hester,*as qualified by *Jolly’s case,”*3 Dev. and Bat., 110, she was a competent witness after her husband’s death, she certainly appeared in a “ most questionable shapeand if it be wise to require a “ witness of the law” in any case, this is that case.

' The majority of the Court feel bound by *Vines*v *Bvovm-rigg.*The reasoning in that case is unsatisfactory and inconclusive, and I am persuaded, that the decision entirely destroys the utility of the Statute, and therefore do not feel at liberty to follow it.

The learned Judge, who delivered the opinion, devotes more than three fourths of it to a question, which was not controverted, viz : whether, on the trial, the execution of the deed of gift must be proven, or such proof is dispensed with by the *ex parte*probate and registration. At the close of the opinion, he asserts the proposition, that, “if A. is a subscribing witness to a writing, evidencing a gift of slaves, saw it signed and sealed, but could not prove its delivery, then B., who is not a subscribing witness, may be introduced to prove the delivery.” He cites two English cases' which establish this proposition, that, under the Statute of wills, if two of the three, who purport to be attesting witnesses, deny their attestation, and the *fact of their being attesting -witnesses*is established by the other attesting witness, who knew the fact, *that they did attest the will,*such proof satisfies the Statute; for, otherwise, any will might be defeated by perjury. Hence, he infers, that, if a subscribing witness to a deed of gift denies the fact of his being a subscribing witness, and thus perjures himself, the fact of his being a subscribing witness may be established by other witnesses. This is a correct conclusion. And so, if the subscribing witness cannot prove the delivery from the want of memory, other witnesses may prove, that *he did in fact witness the delivery*as well as the signing and the sealing. But where there is no perjury and no want of *220memory, and the fact is, that he did not witness the delivery, the inference from the above premises, that other witnesses may prove, not that he did *witness the*deed, but that the deed was delivered in his absence and without bis knowledge, is a “ *non*sequiturand to assume, that he is a subscribing witness, is a *“petitio principii.”*For, whether, under the facts agreed, (to wit, he saw the paper signed and sealed, but did not see or know of its delivery,) he is a subscribing witness to the deed or not, within the meaning of the law, was the very question to be decided.

In the case of *Andrews*v. *Shaw*4 Dev. 70, which was decided at the same term, *Vines*v. *Brownrigg*is incidentally referred to and approved. But *Vines*v. *Brownrigg*is the only case decided on the point, and the question is, does that give to the Statute its true construction ? The question, whether a writing attested by a witness subscribing, the same, accompanied by an actual *delivery of the slave,*passes the title, does not arise; for, here there was no delivery of the slave and a deed of gift was necessary.

The above was submitted to the Court before the opinion of the majority was bled, as my ground for not following the case of *Vines*v. *Brownrigg.*

*First:*My impression was, that *Andrews*v. *Shaw*did not present the point. I therefore treated it as a *dictum,*and not a decision; because in that case the subscribing witness saw the deed signed and sealed, and heard it *acknowledged by the maker,*and *was directed in his presence to hand it to the attorney, who drafted it.*This, I thought, made him a witness of the “delivery,” as well as the signing and sealing, and according to my own definition, he was a subscribing witness to the deed. But suppose it is in point, it was decided at the *same*term, upon the same reasoning, and is a mere repetition.

*Second:*To support the case, it is said : “But in common speech execution means, generally, signing and sealing 3 paper, as contradistinguished from its delivery. It seems *221plain, that it is to be understood in that sense in Statutes, which require subscribing witnesses; for, no one ever, thought of delivering a deed before its attestation.” To this my reply is, that execution means “finishing, completing an actand as delivery is a substantial, not a mere technical, requisite, the execution of a deed means, that it has been “ *delivered,”*as well as signed and sealed ; and, although it is frequently the case, that the maker of a deed, after signing and sealing the paper, requests some one to attest it and then delivers it to the other party as his deed ; yet this request is generally made with the understanding,, that it is then and there to be delivei’ed or acknowledged in the presence of the attesting witness. Yet it is also, frequently the case, that the maker, after signing and sealing, acknowledges the delivery, and requests some one to. witness it as his deed; which being done, the other party, takes possession of it, as a thing delivered to him before the attestation. The truth is, whether the attestation is before or after the delivery, the acts are understood to be contemporaneous and continuous, and form a part of the “ *res gesta.” It*makes tno difference which comes first, so that they both come. But, I apprehend, it is quite unusual for one to witness a paper *as a deed,*when the maker has no present purpose of making a delivery ; and except in the case of *Vines*v. *Brownrigg,*and the present case, I question if such a thing has occurred within the last twenty years. The thing is so unusual, that from the fact of there being a subscribing witness, if he is dead, proof of his handwriting is deemed in law sufficient evidence for a jury to infer the delivery.

*Third:*The objection, that “no deed could be delivered as an escrow, unless the same person happened to be the witness to the signing and' sealing and to both the first delivery and the final one” is met by the fact, that there is only *one. delivery,*which is, when the maker parts with the possession and control of the paper. If there be a witness to the *222signing and sealing, and he also is a witness to the fact, that the maker delivered the paper as his deed, to be handed to a third person if a certain thing is done, .then the Statute has been complied with, and if the thing is done, it is ' the deed of the maker from the time of its delivery, as an es crow. *Hall*v. *Harris,*5 Ire. Eq. 303.

*Fourth :*I am so unfortunate as not to feel the force of the illustration from the Statute of Devises.

*Fifth: Vines*v. *Brownrigg*and *Andrews*v. *Shaw*were decided in 1833 and have been “ fully” acquiesced in by the profession and have received the sanction of the Legislature; for, in 1836, when the Statutes were revised, no change was made in the law.

My reply is first: I presume ho case of the kind has happened, except the present, since 1833. At all events, *Vines*v. *Brownrigg*and *Andrews*v. *Shaw*were not cited on either side in the argument.

*Second: Wagstaff*v. *Smith*was decided in 1832 — it was over-ruled in 1833 — and the law was then decided to be, that, as between tenants in common, an account for the profits was cut oif by the Statute of limitations, except for the last three years, (it is proper to say, this latter decision was not reported from some cause or other, ’till 1845). Still, the decision was one of importance and bore upon questions occurring almost every term. It was, of course, known to the profession, and we must presume it was known to the members of the Legislature, not. only in 1836, but in 1834-37 — and up to 1849, December Term, when *Northcot*v. *Casper*6 Ire. Eq. 403, “overruled it,” upon the ground, that it had put a construction on the act of 1715, Rev. Stat. ch, 65, sec. 9; which was contrary to the “reason of the thing,” and contrary to previous authorities, the acquiescence of the profession and of the Legislature “ to the contrary notwithstanding.”

• My idea is, that “ law” is not a mere list of decided casés( but a “ *liberal science,”*based on general principles'and cor-; *223rect reasoning. Cases are mere evidences of what the law is; and if a case is found to be unsupported by principle and “ the reason of the thing,” the Court is no more bound to fpllow it, than is a jury bound to believe a witness, who is discredited by proof of his bad character, or his demeanor or direct contradiction. In the one, there is a *sworn*witness : in the other, there is a decided case — both are *prima facie*entitled to credit, until the contrary is -made to appear. - v -

It is true,’ law should be “ fixed and steadybut it is also true, it should be “reasonable and right.” The latter, is the most important; because, without i t, the former object cannot be attained. There are two extremes — a disregard of authority, which I disclaim; and a blindfolded following of cases, which I also disclaim, as not only absurd, but impossible, (for, suppose a Corn#, in attempting to follow a case, should “ miss the point,” which case is then to be followed ?) There is a medium, which I try to adhere to— take a comprehensive view of all of the cases from the “ year books” down to the present time — has not this middle course been adopted and acted on throughout ? Is it not supported by good sense and general practice ? , Let a case be taken, as settling the law, *prima facie ;*but if it is shown, not to be supported by principle and “ the reason of the thing,” let it be over-ruled — the sooner the better; for, if the error is allowed to spread, it may insinuate itself into so many parts, and become so much ramified, as to make it impossible to eradicate it, without doing more harm than good. But if the seed has not spread too much, pull it up and throw it away.

Pee Cueiam Judgment affirmed.