#### MRS. MAHAN'S CASE. Eliza J. Mahan et al., appellants, *v.*The United States, appellees.

(6 Court Claims R., p. 331; not yet reported in Wallace.)

*On the claimants’ Appeal.*

*In Mississipqri, ¿luring the rebellion, a mother being indebted to her daughter upon a mortgage, a parol agreement is made between them that the latter shall take a mass of cotton in part payment. The price is fixed at*20 *cents per pound, but the number of pounds is not ascertained, neither is any payment endorsed upon the mortgage, nor receipt given, nor memorandum in xoriting made, nor present consideration paid. Weither does any change of possession take place, nor is there any delivery actual or symbolic. The cotton remains where stored tilt its capture. The daughter then immediately asserts her claim to it, and subsequently brings suit for the proceeds. In her petition she alleges that the cotton was grown on her own plantation, and she does not set up title as derived through a gift*inter vivos. *The Court of Claims holds that the intent of the parties not being evidenced by the payment of the purchase-money, nor by the ascertainment of the price, nor by a receipt upon the mortgage, nor by a written memorandum, nor by the delivery of the thing sold, the facts do not in law establish a sale. Judgment for the defendant. The claimants appeal.*

I. The Revised Code of Mississippi requires as to sales of personal property for the price of §50, or upward, that the huyer must receive the property or a part thereof, or actually pay or secure the purchase-money or a part thereof, or that a memorandum in writing he made and signed by the party to he charged. Consequently where it is agreed orally between mother and daughter that a certain mass of cotton betaken in part payment of a mortgage and the price is fixed at 20 cents per pound but the number of pounds is not ascertained, neither is payment endorsed upon the mortgage, nor a receipt given, nor a memorandum in writing made, nor a present consideration paid; neither does any change of possession take place, nor is there any delivery, actual or symbolic, the sale is void and the buyer acquires no title which will enable her to maintain an action under the *Abandoned or captured property Act.*

II. Where a party alleges that she derived title to personal property through a parol contract' of sale, she cannot, on the contract being held invalid, maintain the transaction to have been a gift *inter vivos.*

*The Reporters’*statement of tbe case:

The claimant brought suit to recover the proceeds of certain *138cotton captured in Mississippi, and in her petition alleged that the cotton was raised on her plantation and was her property. ■On the trial it appeared that she had only a reversionary interest in the plantation, and that the crop of which the cotton was part had been grown by her mother. The claimant then relied upon a sale before capture. The court below found the following facts:

The captured property described in the petition, consisting ■of 116 bales of cotton, was not raised, ginned, or baled by the claimant, Mrs. Mahan, as alleged in the petition. But, on the contrary, it was raised, ginned, and baled, by James H. and Sophia G-. Mitchell, upon a plantation known as Palatine Hills, in •the State of Mississippi, where they resided. A life-estate and the possession of this plantation were in Mrs. Mitchell; the remainder in Mrs. Mahan. Mrs. Mitchell is the mother of Mrs. Mahan, and James H. Mitchell was her step-father, and the plantation had been the property of Mrs. Mitchell’s first husband, the claimant’s father. James H. Mitchell died in 1862, and Mrs. Mitchell was the administratrix of his estate.

During'the minority of the claimant; Mrs. Mahan, James H. Mitchell had acted as'her guardian, receiving the profits of her estate, so that he became indebted to her in the sum of $24,701.46. To secure this indebtedness he and Mrs. Sophia G-. Mitchell duly executed to Mrs. Mahan, then Eliza Jane Mitchell, a certain mortgage bearing date the 23d day of February, 1841, payable when the said Eliza Jane Mitchell shall arrive at the age of twenty-one years, or shall be legally married, or the said James H. Mitchell shall be called upon to make said payment in due course of law, which said sum of money the said James H. Mitchell owes to the said Eliza Jane Mitchell on his account as her guardian, duly appointed, then these presents shall cease and determine, and be null and void.

During the year 1842 the claimant, Mrs. Mahan, was married to her first husband, P. E. Nicholls, but the mortgage was not then paid, nor has it since been paid, neither principal nor interest.

In December, 1862, the Confederate General Yan Dorn issued an order requiring all cotton near the Mississippi to be removed at least ten miles from the • river, otherwise it should be burnt to prevent its capture by the United States forces. In compliance with this order Mrs. Mitchell removed the cotton to Kingston near Natchez, where it was stacked and covered.

*139After the death of James H. Mitchell, and after the cotton had been thus removed to Kingston, but before the capture of Natchez by the United States forces, and before the passage of the *Abandoned or captured property*Act, a parol agreement was made between Mrs. Mitchell and Mrs. Mahan to the effect that the latter should take the cotton as a payment upon the mortgage before described. The price was fixed at 20 cents per pound, but the number of pounds was not definitely ascertained, neither was any payment indorsed upon the mortgage, nor any receipt given, nor any memorandum in writing made, nor any present consideration paid. Neither did any change of possession take place, nor was there any delivery, actual or symbolic. The cotton remained at Kingston until its seizure by the military forces of the United States, immediately upon w7hich the claimant asserted that she was the owner, and sought to procure its release. Mrs. Mitchell, the vendor, had been guilty of giving aid and comfort to the rebellion.

And upon these facts the court below held, as its conclusion of law, as follows:

From these facts we think there cannot be deduced those elements of a sale and delivery which constitute the ownership of personal property. Whether a gift *inter vivos*or a grant from parent to child in consideration of natural love and affection would be sufficient to transfer property from a disloyal to a loyal citizen, as against the subsequent capture of the' United States, it is not necessary now to inquire; neither the one nor the other is pretended here. The party relies upon a purchase and sale at 'which, so far as the evidence shows, she paid no money, relinquished no rights, released no debt, assumed no responsibility, and acquired no possession. The intent of the parties was not evidenced by the ■ payment of the purchase-money, nor by the ascertainment of the price, nor by a receipt upon the mortgage, nor by a written memorandum between the parties, nor by any formal or decisive declaration before witnesses, nor by the delivery of the thing sold. The facts do not in law establish a sale and delivery, and the evidence to prove the ownership of the captured property fails.

*Mr. B. M. Gorwine*for the clainiants, appellants:

The rule is, that where the sale of a *ichole*number or bulk, *140when the counting or weighing is only for the purpose of reckoning the price, the sale is valid and passes the *title.*— Grofoot v. Bennett, (2 Oomst., 260;) 2 Kent’s Comm., 496 j Story on Sales, note 1 to § 296.

No memorandum in writing was necessary, and no indorsement on the mortgage was requisite. Indeed, the latter could not have been made then, because the weights of the bales had yet to be ascertained, and, as we have seen, that was not a necessary precedent act to pass the title. Neither at common law nor by the statute of frauds of England or Mississippi was it-necessary that the evidence of sale should be in writing. Story on Sales, ¶ 258, in commenting on the English statute, states the rule with respect to agreements for the sale of personal property to be, that where it is to be performed within one year it need not be in writing. The statute of Mississippi (Howard & Hutchinson’s Compilation of- Mississippi Laws, p. 37 J, sec. 1) re-enacts the English statute, and in so far as the sale of personal property is concerned where the agreement is to be performed within one year, the language is the same and so is the law.

But if this transaction is held not to be such a sale as passed the title absolutely to Mrs. Mahan, it must be held to be a gift *inter vivos.*The rule is, that such a gift when completed by delivery passes the title to the thing, so that it cannot be recovered back by the giver. (Bouvier’s Law Dictionary, vol. 1, p. 561.) Tested by this elementary rule, it will be readily seen that this transaction has all the elements of such a gift. The *relation*of the parties made it eminently proper. Love and affection in themselves constitute a sufficient consideration. But there is more than that in this case. The mother was moved to make the gift by the additional consideration of equitable obligation. If the test of the validity of a gift *inter vivos*is the inability of the donor to recover it back, that fact exists here in the strongest possible manner. Mrs. Mitchell has sworn that she does not claim the cotton, and that it is her daughter’s property, and she has placed that renunciation and that fact in writing. It is of no consequence, so far as the legalizing of the gift is concerned, whether the j>ossession is given at the time or afterward. It is the fact that the act is irrevocable and the gift irrecoverable, that the court will look at. Being satisfied on that point, the gift will be held good.

*141*The Attorney-General*for the United States, appellees:

The claimant, Mrs. Mahan, seems to rely upon a purchase and sale at which she paid no money and acquired no possession. The interest of the parties was not evidenced by the payment of the purchase-money, nor by the ascertainment of the price, nor by any formal or .decisive declaration between the parties, nor by the delivery of the thing sold. These facts do not establish a sale and delivery.

The consideration was not good, for if this were a gift *inter vivos*from parent to child, it being a parol gift of personal property without any actual delivery, the title was not passed. *Irons*v. *Bmallpiece,*(2 B. & A., 5515) *Shower*v. Pilóle, (4 Ex., 478.) And the laws of Mississippi make such parol gifts fraudulent. (Statute Law of Miss., Howard & Hutchinson, 370, sec. 2.)

The consideration was not *valuable,*as no money or any other equivalent for the grant was given.

The number of pounds was not ascertained, and the price was to depend on the quantity of the cotton, and the performance of these things was a condition precedent to the transfer of the property, although the individual cotton was ascertained, and it was in the State in which it ought to be accepted. (Benjamin on Sales, 221, 222, *et seq.,*and cases cited;) *Logan*v. *Le*Mesunir, (6 Moore, P. 0., 116.)

The contract, if legal, did not pass the title in the property; it amounted only to an executory contract.

The case of *Grofoot*v. Bennett, (2 Comstock, 258,) cited by the appellants, does not apply here, as the circumstances were different, inasmuch as in that case a portion of the bricks in a specified kiln were sold at a certain price per thousand, and the *possession of the whole kiln was delivered to the*vendee, that he might take the quantity sold.

*Mr. Gorwine*in reply:

"When the brief heretofore filed in this case for claimant was prepared, it was in expectation that the court would.grant her application for a writ of error, and order the evidence to be sent up. That application having been refused, makes much of that *142brief unnecessary and improper for the consideration of the court, in so far as it comments on some of the evidence read in the case below, not embraced in the findings of fact of the Court of Claims. (See 7 O. Cls. R., p. 282.)

An actual delivery is not necessary as between the parties so long as the rights of third parties do not intervene. As against the mother, the daughter might well maintain replevin for this cotton, because she was entitled to immediate'posses* sion of it. Certainly as. against a stranger, who has acquired the possession by capture and not by purchase, she might do-this. The Court of Claims erred when they supposed that actual or even symbolic possession is necessary to perfect the right of a vendee to claim property taken possession of by capture merely. The right of the daughter to this property was-complete as soon as this agreement was concluded.

Mr. Justice Millek

delivered the opinion of the court:

This is an appeal by the claimant from a decree of the Court of Claims, dismissing.absolutely her petition for the proceeds of certain cotton seized and sold under the acts of Congress concerning captured and abandoned property in the States recently in insurrection.

The sole question in the case is whether appellant was the owner of the cotton at the time of its seizure by the agents of the United States, and this must be decided as a matter of law on the finding of facts made by the Court of Claims, notwithstanding the frequent reference of counsel to the view which he takes of the evidence given in that court.

It seems to be established that the claimant had a just demand for a large amount against her step-father, which was-secured by a mortgage on a valuable cotton-farm in Mississippi, the life estate of which was in her mother, that estate being-covered by the mortgage. Some time in the year 1862, both mother and daughter being widows, and the war flagrant in Mississippi, it is alleged that a contract was .made between them, by which the cotton in question, then owned by her mother, was turned over to and purchased by the appellant in part payment of the debt secured by said mortgage; and whether this transaction transferred the title of the cotton to plaintiff is the question to be decided. The finding of facts. *143on this point is thus stated by the Court of Claims: “After the death of James H. Mitchell, and after the cotton had been thus removed to Kingston, but before the capture of Natchez, by the United States forces, and before the passage of the *Abandoned or captured property Act,*a parol agreement was made between Mrs. Mitchell and Mrs. Mahan, to the effect that the latter should take the cotton as a payment upon the mortgage before described. The price was fixed at 20 cents per pound, but the number of pounds was not definitely ascertained, neither was any payment indorsed upon the mortgage, nor any receipt given, nor any memorandum in writing made, nor any present consideration paid. Neither did any change of possession take-place, nor was there any delivery, actual or symbolic. The cotton remained at Kingston until its seizure by the military forces-of the United States, immediately upon which the claimant asserted that she was the owner, and sought to procure its release.”

It is strongly urged by counsel for claimant that, by the common law, these facts constituted a valid sale of the property, and that, as there was no statute of frauds in force in the State of Mississippi requiring delivery or a written memorandum to. make a sale of personal property valid, the parol agreement set out in this finding constituted a valid sale. Whether this would be so in the absence of such a statute as most of the States, have on that subject, might admit of serious debate.

But, while there is no such provision in the authorized publication of the statutes of Mississippi of 1840, by Howard & Hutchinson, to which we have been referred, we find in the Revised Code of Mississippi of 1857, which, from our own researches, we are bound to believe was the law in force when this agreement was made, a very stringent provision on this-subject in the statute of frauds and perjuries of that code.

Article four of chapter forty-four (page 359) enacts that no contract for the sale of any slaves, personal property, goods, wares, and merchandise for the price of $50 or upward shall be allowed to be good and valid, except the buyer shall receive the slaves, or part of the personal property, goods, wares, and merchandise, or shall actually pay or secure the purchase-money,, or part thereof, or unless some note or memorandum in writing of the bargain be made and signed by the party to be charged by such contract, or his agent thereunto lawfully authorized.

*144• The finding of the Court of Claims negatives in the most express terms the existence in the agreement, by which the title of the cotton was supposed to be transferred, of each and every one of the acts or conditions, some one of which is by that statute made necessary to the validity of the contract.

To hold that an agreement which that statute declares shall not be allowed to be good and valid was sufficient to transfer the title of the property to claimant, would be to overrule the uniform construction of this or a similar clause in all statutes of frauds by all the courts which have construed them.

The Court of Claims held that the agreement passed no title, and we concur in their conclusion on that subject.

It is unnecessary to examine into the effect of the transaction as a gift *inter vivos.*The finding that there was no delivery would be as fatal to such a gift as to the agreement of sale; besides, there is nothing in the petition of plaintiff, or in the findings of the Court of Claims, on which such a gift could be considered as in the issue. The finding that it was a parol contract of sale is directly opposed to the idea of a gift.

The decree of the Court of Claims is therefore affirmed.