DECEMBER TERM, 1832.

#### Harriet D. Eppes *v.*Joel McLemore.

Where A agreed to purchase a slave for E, but took the title to himself. and afterwards, the slave being in the possession of B, the purchase money was tendered by him to A, who declined taking it, but did not disclose his title: *Held,*that the jury were properly instructed that they might from these facts, infer a subsequent sale.

Detiwue for a slave, and on the trial at Halifax, on the Fall Circuit of 1831, before SwaiN, Judge, the case was, that the slave in dispute had been the property of the plaintiff’s husband, and was sold under an execution against his executor and bought by one Johnston, *■*who paid the purchase money, and to whom the sheriff returned he had sold. The only question was, whether the following circumstances vested the title in the plaintiff, so as to prevent the defendant from taking any thing under a subsequent sale to him by *Johnston.*The negro had been in possession of the plaintiff before the sale by the sheriff, and directly after it returned to her house. A witness introduced by the. plaintiff, de-, posed, that before the sale *Johnston*agreed to purchase the negro for the plaintiff; that after that took place, - the plaintiff offered to pay *Johnston*the price at which he had bought the slave, which he then declined receiving, requesting her to keep it; that at the time this offer was made, the plaintiff had the money in her possession, but *346it was not produced in consequence of *Johnston’s*wish that the plaintiff should retain it. Upon this point, the evidence was contradictory, and thereupon the counsel f01, the defendant moved the presiding judge to instruct the jury, that if *Johnston*purchased the slave at the request, and for the use of the plaintiff, as the slave, was bid off and returned by the sheriff as purchased by him, the legal title vested in him, subject only to a trust for the plaintiff, and that the matters deposed to by the plaintiff’s witness were not sufficient to vest that legal title in the plaintiff ;• and further, that the legal title being in *Johnston*could not be passed to the plaintiff without a written transfer, or a sale accompanied with a delivery. But his Honor refused to give these instructions, and charged the jury, that if they believed that *Johnston*purchased the slave at the request of, and as the agent of the plaintiff; and delivered the negro to her as her property ¿ that the price bid by *Johnston*was tendered to him at the time of the delivery, and was not paid because of his request; or if he was satisfied with the plaintiff’s promise to pay him. the amount; they were at liberty to find that there was a valid sale by *Johnston*to the plaintiff.'

A verdict was returned for the plaintiff, and the defendant appealed.

*Badger,*for the defendant.

*Bevereux,*for the plaintiff relied upon *Choate*v. *Wright, ('ante*á *vol. page*289.)

Ruffin, Judge.

I suppose the first instruction prayed on behalf of the defendant, to be correct as far as respects the vesting of the legal title in *Johnston,*by the purchase in his own name, ind his becoming responsible to the sheriff for the price, notwithstanding the previous agency undertaken by him. If he chose to violate his engagement and take the title to himself, he might do so. But if he did, that did not prevent a subsequent sale to the *plaintiff;*and that brings the question to the last part of that instruction, and to the next as asked for: *347■which is, that the evidence did not establish a sale from *Johnston,*or that the legal title passed from him in any way. .

A contract foi-^ave witl^possession by die vendee is

The case of' approved,.

The court is of opinion that the jury might find, that it did. The possession of the slave was transferred to the plaintiff, who offered to pay an ascertained price,, which *Johnston*agreed to accept. It is"true, the witness' says, this was in reference to the previous agreement of *Johnston*to buy the negro for the plaintiff; and. therefore, there was then no proposition about the price. But although the plaintiff claimed upon the score-of the agency, because she did not know that the purchase had been made in *Johnston’s.own*name ; yet when *Johnston*acquiesced in it, and made the plaintiff believe that she had thus the title in one way, when in fact she was getting it in another, the plaintiff’s mistake as to the mode in which it passed, shall not prevent her from? acquiring it in any mode, if the acts then done, in their legal operation, passed the title of themselves. Did the-plaintiff and *Johnston*then consider that the right to the-slave was in the former, by virtue of what was before and then done ? Was every thing done, that was expected or intended to be done, to vest the title in the plaintiff; and was this followed' or accompanied by actual delivery ? If so, it is a sale. It is an. agreement that the property is, or shall be another’s; and that agreement consummated by delivery.. Suppose Mrs. *Eppes*had then paid the price: would any body doubt the character of the transaction ? Her agreement to pay ls the same thing, if taken by the seller in place of the money ; and such the witness said was the fact — upon the conflicting testimony, it was for the jury to determine. Taking that offered by the plaintiff to be true, there was a contract of sale, which accompanied by possession, is an executed contract and valid. *(Choate*v. *Wright, ante*2 vol. 289.)

Per Curiam. — Jurgment- aeetrme»*