#### *Lewis Busby and Mary, his wife,*vs. *Thomas B. Byrd and others.*

A parol gift of a negro to take effect in possession at tbe donor’s death, is necessarily void, because there can be no delivery, and to a parol gift delivery is essential.

To constitute a *delivery,*it is essential that the deliverer should part with Ms control over the chattel; and where his intention is to vest a future interest, though he may go through the form of delivering the chattel, yet, inasmuch as he retains his control over it, there is no delivery.

*Before*Johnston, Oh. *atAlléville, June,*1851.

Johnston, Ch. This was a bill filed by Lewis Busby and Mary, his wife, against Thomas B. Byrd, administrator of the estate of Rhoda Pullam, deceased, the distributees of the said Rhoda and others; claiming the delivery of a negro woman, Leah, and her children, and partition of the same among the four daughters of Lucy Pullam, deceased, viz: Mary, the wife of Lewis Busby, Ma-hala, the wife of Matthew II. Bryson, Rhoda, the wife of Wm. Sanders, and Eliza, the wife of Thomas B. Brooks.

James Pullam, the husband of Rhoda Pullam, had owned Leah, the negro in controversy. At the sale which was made of his property after his death, in the year-, Leah was bought by one Charles B. Eoshee, who kept her about one year and then sold her to Rhoda Pullam, who had her in her possession from that time until her death, except the period of time during which Lucy Pullam had possession of her, and whilst John P. Coleman owned her, of which more will be said hereafter.

*10Leah and her children, who have now increased to the number of eight, are still in the possession of Thomas B. Byrd, the administrator of the estate of Bhoda Pullam, who died in June, 1846; and he alone of the defendants has answered.

Lucy Pullam was the widow of Benjamin Pullam, who was the nephew of James Pullam the husband of Bhoda Pullam; and the plaintiffs, for themselves and for the other three daughters of Lucy Pullam, claim, that, in consequence of their relationship to the said Bhoda, she had given, in her life time, Leah and her child Ally (the only child then born) to the plaintiff, Mary, and her sisters above named. They allege, that Bhoda Pullam, “ in or about the year of our Lord one thousand eight hundred and thirty-five, gave and delivered to your oratrix and her sisters, named aforesaid, who had but small means, a negro woman, Leah, and her daughter Ally. Whatever the precise terms of the said gift were, your orator and oratrix assert there was a substantial and legal gift of the said Leah and her said daughter, to the sisters of your oratrix with herself, and actual delivery of the said slaves accompanied, for some time, by possession.”

The plaintiffs endeavored to show a parol gift from Bhoda Pul-lam ; and upon that point offered many of her declarations stating in various forms, (as the witnesses remembered them), that she intended to give, and at other times that she had given, Leah and her children, or some of them, to Lucy Pullam or her daughters.

I did not regard the gift made out either by these declarations or the temporary possession of the woman, Leah, by the said Lucy Pullam; and I admitted counter declarations of the alleged donor (when subsequently in possession,) stating that she had intended to give, but had changed her mind — that she had not given, that she never intended to give Leah or her children, either to Lucy Pul-lam or her daughters — and that she had made 'her will, giving Leah to Lucy Pullam and one of her children to each of her daughters, but that she had destroyed it, &c. ’ The testimony was somewhat conflicting, and apparently inconsistent, but I think susceptible of reasonable explanation in the view which I have *11taken of the case. The evidence is all in writing, either in answer to interrogatories propounded by the parties or taken by the Commissioner, and is appended to this decree, so that either party may have the full benefit of it.

It will be seen that Lucy Pullam died in August, 1836, and that Leah and her child Ally had been sent back to Rhoda Pullam but a short time before her death. By referring to the testimony, it will also be seen that Leah remained in the possession of Lucy Pullam for a period of time less than a year. All the witnesses concurred in this. Some of them say that Leah was with Lucy Pullam only a few months. So that there is no clear evidence either of a declaration of Rhoda Pullam that she had given Leah, or of Lucy Pullam’s possession of her and her child, prior to the summer of 1835. Dr. Calhoun says that “ he made a will for Rhoda Pullam in the latter part of the year 1835, by which the girl Leah and her children were given to L. Pullam, with an injunction, that she would give one negro child to each of her daughters, when they married, or came of age, should the woman have so many.” This will was not destroyed until the year 1841, and I am of opinion that all the declarations of Rhoda Pullam, in relation to the alleged gift of Leah and her children, had reference to this will, then in existence, and the provision which she had made thereby for Lucy Pullam and her children — that she never meant that she had given up all control over the said slaves, but that she had made that disposition of Leah and her children by will, and that it was her intention that they should go in that way, unless she chose to alter and destroy the will, which she still retained the right to do, and which afterwards she did actually do, when some of the parties had offended her by taking counsel to ascertain whether they could hold the negroes under the gift. She not only destroyed the will, but destroyed it in such a manner, (by “ burning it on her pipe,”) as to indicate her strong disapprobation of, and contempt for, the conduct of the parties of whom she complained, and her determination to give them nothing.

This view of the testimony is supported by the reference to the *12deed of gift, said to have been drawn by Dr. Calhoun, when the provision in favor of Lucy Pullarn and her children was spoken of: he having drawn no *deed*of gift but a *will,*which was revocable : and it is also strengthened by the conduct of Lucy Pullarn herself, when, in the presence of Coleman, she returned Leah to Rhoda Pullarn, expressing her dissatisfaction with the manner in which she had taken the negroes, stating that her friends had told her that she was working and raising negroes for other persons, that the title to her children was worth nothing, and unless Rhoda Pullarn *would malee a deed*of gift, it would be useless for her to keep the negroes any longer. Rhoda Pullarn replied, she would make no deeds about it, and if they refused to take her word for it, they might send them home: and in a few days after they were returned.

I think there is nothing in the circumstances of this case — either in the relationship of the parties^ the declarations of Rhoda Pul-lam, or in the temporary custody, which Lucy Pullarn had of these negroes, explained as it is, which would authorize the Court to presume a gift other than that made in the will drawn by Dr. Calhoun, which was revocable, and in fact revoked.

I am also against the plaintiffs on the statute of limitations. After the return of Leah to Rhoda Pullarn, as stated above, Cole-' man says, “ she never did acknowledge any right except her own.” She sent for Ally. Afterwards, in 1839, she sold Leah to Coleman, who owned her between one and two years, and then sold her back to Rhoda Pullarn, at an advance of three hundred dollars. When a letter was received from Rhoda Pullarn, Jr., one of the daughters of Lucy Pullarn, claiming a negro or money, she declared that “the Pullarn girls ” had no interest in Leah; which she occasionally repeated down to her death, in June, 1846.

There is no reason to doubt, (even if there ever had been a gift,) that Rhoda Pullarn, and her representative since her death, have had adverse possession of Leah and her children quite long enough to confer title to *them;*and there is as little room for doubt that the daughters of Lucy Pullarn knew that their mother had re*13turned them — that Rhoda Pullam had sent for Ally, and that she had changed her mind upon the subject, and held them in her own right and under her own control, and adverse to every other claim, although she still intended, until affronted, to give them by her will.

It is not an answer to the plea of the statute, to say that the gift by its terms was not to take effect until the death of Rhoda Pullam. If there ever was a gift, it was a parol gift, and such gift to take effect in possession at the death of the donor, is void for want of delivery. The formal words of delivery may be pronounced, the ceremony may be performed, but it is inconsistent and impossible that there can be a real delivery in such a case: because it is necessary, in order to complete a parol gift, that the property itself should be delivered, and by the very terms of a gift to take effect *in futuro,*the donor is not to deliver but to retain possession. A delivery is neither more nor less than the abandonment of control by one party, and the transfer of it to the other: and when the intent is to retain that control, a delivery is impossible. I have stated my opinion on this point in my decree in *Jaggers*vs. *JEstes,*(8 Strob. Eq. 379,) and very recently in the case of *Miller*vs. *Anderson,*which I heard at Edgefield, and content myself with a reference to what I have there said.

There is another point upon which I think I should be justified in refusing to decree a specific delivery in this case. In no view that can be taken of the testimony, is the evidence of gift so free from doubt and obscurity, as to entitle the plaintiffs to insist upon the equity of such a decree: and they should be left to their remedy at law, if there be any. It is ordered that the bill be dismissed.

The complainants appealed, on the grounds:

1. That the evidence established a gift to complainant and her sisters to the slaves mentioned in the pleadings.

2. That the statute of limitations did not begin to run until Rhoda Pullam’s death, and ought not therefore to have been held a bar to complainant’s claim.

*143. That the suit for the delivery and partition of the slaves in controversy, was, in this instance, prosecuted in the proper Court, and that the remedy was not at law.

4. That there was reasonable proof of the gift of Leah and her children to complainant, Mary, and her sisters — proof of possession under such gift — and of permissive possession by Rhoda Pul-lam until her death: and that the decree should have been rendered for complainants in accordance with it.

*Thomson, Noble,*for appellants.

-, contra.

*Per Curiam.*

This Court concurs in the decree of the Chancellor ; and it is ordered that the same be affirmed, and the appeal dismissed.

JoiiNSTON, DuNKIN, Dargah and Wardlaw, CO. concurring.

*Appeal dismissed.*