Opinion
(Spring Riding, 1798.)
Under the Acts of 1784 and 1792 (1 Rev. Stat., ch. 37. sec. 19) an unattested bill of sale for slaves is good as between vendor and vendee.
DEFENDANT had given a bill of sale for negroes, without an attesting witness.
Baker, in a very lengthy argument, insisted that the instrument was void for want of attestation.
Laws 1792, ch. 6, sec. 3, directs "That in all trials at law where a written transfer or conveyance of a slave or slaves shall be introduced to support the title of either party, the due (62) and fair execution of such writing shall be proved by a witness subscribing and attesting the execution of such writing; but if such witness shall be dead or removed out of the State, then the probate and registration of such writing may be given in evidence." This clause supposes the case of a written transfer produced on the trial, purporting in the face of it to have been attested, and directs it to be proved by the attesting witness if to be had, because that is the best evidence. The act did not contemplate the case of an unattested transfer, and of course has given no directions relative to it. Even the act of 1784, ch. 10, sec. 7, requiring registration of bills of sale of slaves, does not mean to make the transaction void as between the vendor and vendee, for want of registration or attestation, but only so far as regards creditors or purchasers, who may say it is void if all ceremonies required by the act are not complied with; but as between vendor and vendee, if none of them be complied with, the sale is good. The case now before us is out of the act of 1792, and must be decided by the rules of evidence at the common law, and by the common law a deed is not void for want of attestation, and may be proven by witnesses who did not subscribe it, or by other means.
NOTE. — See the cases collected in the note to Farral v. Perry, 2 N.C. 2; also Bateman v. Bateman, 6 N.C. 97; Rhodes v. Holmes, 30 N.C. 193. A sale of a slave accompanied by a delivery is valid, and transfers the title, although no bill of sale is executed, nor any memorandum of the contract signed by the parties thereto. Choat v. Wright, 13 N.C. 289. See, also, Muskat v. Brevard, 15 N.C. 73; White v. White, 20 N.C. 427. The act of 1792 applies to a sale between the vendor and vendee, although no third person is concerned as creditor or purchaser. Caldwell v. Smith, 20 N.C. 64.
Cited: Palmer v. Faucett, 13 N.C. 242; Bell v. Culpepper, 19 N.C. 21; S. v. Fuller, 27 N.C. 29; Carrier v. Hampton, 33 N.C. 309; Thompson v. Bryant, 46 N.C. 343.