#### MARY H. SMITH *vs.*JAMES H. DAVIS

Jn trover for a slave, it appeared that the plaintifFhad had possession of the slave for more than three years, and that at the time she took possession she executed to the owner an obligation with the foiiowing condition, “that whereas the said Mary H. Smith hath this day received of said Houston a negro girl named Nell, which the said Smith is to have the entire service and peaceable possession of during her natural life for the sum of $350 to him in hand paid by the said Smith ; now if the said Smith shall keep the said negro and her issue (if any) in the County and State aforesaid and sufficiently clothe and feed them and humanely treat them during their time of service, and the said Smith or her executors shall before or at her death return said negro or negroes to said Houston,” <frc. *Held,*that the plaintiff had a title to tire slave and her issue during her life.

Appeal from the Superior Court of Law of Mecklen-burg County, at the Fall Term, 1847, his Honor Judge Peakson presiding.

The action is trover for a female slave, Nelly, and several of her children. Plea not guilty. At the trial the plaintiff gave evidence that, in June 1827, she came into possession of the woman, and continued in possession of her, claiming her as her own for the term of her life, until November 1844, The other negroes were the children of Nelly, born in the possession of the plantiff, and held and claimed by her in like manner as their mother. At the latter period the defendant took the negroes from the plaintiff’s possession and carried them to Mississippi.

The defendants then gave evidence, that they claimed under one R. B. Houston ; and further gave in evidence an obligation from the plaintiff to Houston dated June 16th, 1827, for the penalty of $350, with a condition as follows:

*509“The condition of the above obligation is such that? whereas the said Mary H. Smith hath this day received of said Houston a negro girl, named Nell, which the said Smith is to have the entire service and peaceable posses» sion of during her natural life, for the sum of $350 to him in hand paid by the said Smith, the receipt whereof ^acknowledged by the said Houston ; now if the said Smith shall keep the said negro and her issue (if any) in the County and State aforesaid and sufficiently clothe and feed them and humanely treat them during their time of service, &e., and the said Smith or her executors shall before or at her death return said negro or negroes to said Houston,” &e.

Thereupon the counsel for the defendant prayed the Court to instruct the jury that the title to the slaves was in Houston, and that the plaintiff's remedy was against him for the breach of his executory agreement, and that she could not maintain this action against the defendant. But the Court refused to give the instruction, and from a verdict and judgment for the plaintiff for the value of the negroes for her life, the defendants appealed,

*Osborne,*and *Wilson,*for the plaintiff.

*Bynum,*v *<tnd Alexander,*for the defendant.

Ruffin, C. J.

• This seems to be as plain a case for the plaintiff as can be. She has the property in the slaves both under the Act of 1792, which makes parol sales of slaves valid, when accompanied by aetual delivery, and that of 1820, which makes adverse possession for three years a good title, excepting only in the case of oral gifts. That the plaintiff claimed under a sale, and not a gift, is clear. It is true, she did not call witnesses directly to the fact of her purchase, nor does she produce a receipt under her vendor’s hand for the price.

But the defendants established the fact for her by their own evidence. They produce from Houston the plain*510tiff’s obligation to him. for tbe proper treatment of the slaves and tbeir delivery at the plaintiff’s death ; wherein it is recited that the obligee, Houston, had sold the girl to the plaintiff at the price of *$850,*and that she had paid the same and received the negro. We say that the instrument recites a sale, because it says, the plaintiff had received the *negro from*Houston and paid for her, and was “to have the entire service and possession” of the negro; and it is difficult to tell what is property in a slave if the right to the exclusive possession and service be not, whether it be for years or for life or for ever. But it is said, that a life estate merely in a slave cannot be created orally, but that a deed or writing is required by the Act of 1823. That is admitted, without at all weakening the plaintiff’s case. For, the whole effect of the argument is, that, although the parties intended for her only a life estate, yet that the legal operation of the transaction was to give her the absolute *property at law.*We think it very probable that the parties perfectly understood that such was the legal effect; as that would rationally account for the obligation coming from the plaintiff, reciting that she had purchased but a life interest, and obliging her to have the negroes delivered at her death, instead of such an obligation or ex-ecutory'contract on the part of Houston as the legal owner, to let the plaintiff have the use or enjoyment of the negro for life. This circumstance makes this case the converse of *Smith*v. *Margrave,*3 Hawks 560, in which Smith received an absolute conveyance for the slave from Buckhart and at the same time executed the instrument granting the sevices of the negro to Buckhart for life; and it was held that Smith did not intend thereby to part from the property in the slave, because, being for the life of the grantee, it would, in effect annul the whole transaction and place the parties as if no deed had been made at all. But here the instrument is executed by the plaintiff, not to give a life estate, or the ser*511vices for life to another, but to declare that she is really entitled to the possession and services of the slave but for her life, and contracting then to return, reconvey, her and her issue to the former owner. If, therefore, *Smith*v. *Hargrave*was law, which was much doubted, it rather supports than meditates against the plaintiff’s title *\*for, if she had not the title at iaw, the natural course would have been that Houston should give her some in-* strument, as permanent evidence of his obligation to allow her the enjoyment, rather than that she should give the obligation she did to him. The executory contract, was really from her to him, and not *vice versa,*and the judgment ought to be affirmed. It is to be remarked, although the plaintiff may have had the absolute legal title, that no injustice has been done by the verdict ascertaining the damages against the defendants who claint under Houston, since it expressly stated that the plaintiff on claimed, damages for the conversion for her life.

Pías Curiáis Judgment affirmed