From Halifax.
Upon a marriage of his daughter in 1805, her father put into her possession a slave. In 1807, he purchased a tract of land for his son in law and family to reside on (the son in law having become nearly insolvent), and sold the slave to pay for the land. The son in law died, and in 1809 the father sold the land. His daughter complained: he answered that he would build her a house, and let her have another slave. He put into her possession another slave, and she married, and her husband sold the slave. The purchaser is not entitled to the slave as against the father; for
The daughter must be considered either as a donee or a purchaser. If she claimed under a gift, it not being in writing, is void by the act of 1806. She could not claim as a purchaser, because the first slave sold by her father, and by her consent, to pay for the land, was the slave of her first husband. She paid nothing to her father for the second slave.
She could not claim upon the ground of a compromise of a doubtful right, for there was no subsisting right in her or her father. In the cases of compromise of doubtful rights, there is a distinct and intelligible right in one of the parties, and the effect of the compromise is to end a dispute which must otherwise terminate in litigation.
For the Plaintiff it was insisted, that Mrs. Williamson was to be regarded as a purchaser of the slave, (the mother of those in question.) That she had a claim to the land in part purchased with the negro slave first put into her possession after her marriage with Williamson; that at that time (previous to the act of 1806) the law regarded this putting of the slave into her possession as a gift; that she asserted her claim to the land when the Defendant (485) was about to sell it, and had agreed to abandon her claim in consideration of the promise of the Defendant to let her have the slave, the mother of those in question; that the Defendant let her have the slave in pursuance of this promise; and the Court was requested to instruct the jury, that if they were of opinion, from the evidence that this was the history of the transaction, and that the slave was given in satisfaction of what Mrs. Williamson thought herself entitled to, and with a view of making peace in the family, they should find for the Plaintiff. The Court declined giving such instructions to the jury, who found a verdict for the Defendant; and a rule for a new trial being obtained, the Court discharged the rule, and the Plaintiff appealed.
TAYLOR, Chief-Justice:
From the circumstances of this case, the Plaintiff can make out a right to the slaves in dispute, only by establishing such a transfer from Pender to his daughter as would be valid since the act of 1806. Unquestionably it cannot prevail as a gift, because it was not in writing, as that act requires. It is alleged, however, by the Plaintiff, that Pender passed the slave to his daughter as a compensation for a tract of land sold by him, on which she lived, and which land had been purchased with a slave that he had formerly given to her, but had taken away to pay for the land; that the slave now in question was given to the daughter in satisfaction of what she might think herself entitled to, and with a view of making peace in the family; and that the compromise of a doubtful right is a sufficient foundation on which to decree the specific execution of an agreement. But the act of 1806 must bear on this transaction, unless it can be shown that the slave was sold to the daughter. A sale implies a valuable consideration, as money or the like: it cannot exist without a valuable consideration; though the law established free gifts without the same. Noy's Maxims, 87. Hob. (486) 230. A consideration ought to be matter of profit and benefit to him to whom it is done, by reason of the charge or trouble of him who doth it. Cro. Car. 8. What profit or benefit could the father derive from the agreement of the daughter?
Assuming as a fact that this slave was transferred in the manner alleged by the daughter in the conversation with her father, still the first negro was given to her, if given at all, while she was the wife of Williamson, in whose possession the slave was, while he was at Tarborough. Upon his death, therefore, the right devolved upon his administrator, and his wife had no claim except under the statute of distribution, from the surrender of which to the father he could derive no benefit since it could not repel the right of Williamson's representatives.
The compromise of a doubtful right recognizes a subsisting right in one or the other of the contracting parties. Here it was in neither. The gift of the father, if ever made, divested him of the right, and the same act placed it in Williamson. In the cases of compromise of doubtful rights, there is a distinct and intelligible right in one of the parties, and the effect of the compromise is to end a dispute, which must otherwise have terminated in litigation. In every view of the subject, the Court is of opinion that the Jury were properly instructed, and the rule for a new trial must be discharged. (487)