By the Court
Warner, Judge.
This case eomes before us on a bill of exceptions to tbe charge of tbe court below to tbe jury on tbe trial of tbe cause.
Tbe counsel for tbe plaintiffs in error requested tbe court to instruct tbe jury that they bad tbe right to infer delivery, and every other requisite of a good and valid gift, from tbe declarations of tbe donor “ that she bad given tbe negroes to tbe donee, that they belonged to her, and she bad no right to sell themwhich instruction tbe court refused to give as requested, but instructed tbe jury — “ If such declarations are accompanied and connected with acts of tbe party giving, distinctly recognizing tbe rights of the donee, or acts of tbe donee, with knowledge of the donor exercising dominion and control of tbe property, without objection from the donor, they are good to prove delivery and other requisites of a good gift.”
By the common law, to make a valid gift of personal chattels, there must be an immediate possession of tbe -thing delivered to the donee.— 2 Black.Com., 441; 2 Kent’s Com. 438; Noble vs. Smith, 2 John. Rep. 52. Do the declarations of tbe donor, “that she bad given tbe negroes to tbe donee, that they belonged to her, and she bad no right to sell them,” authorize tbe jury to find there bad been such a delivery of tbe property as required by tbe common-law rule, when tbe donor has continued in tbe possession of tbe same, and exercised the dominion over it ? We think not, and concur in the opinion of tbe court, below, [599]*599tlmt there must be some act done by the donor from which a delivery may be presumed ; and that the bare declaration of flic donor that she had given the property to the donee is not sufficient. There must some evidence that the donor lias parted with the dominion of the; property.
We do not hold an actual manual delivery is necessary to constitute a valid gift, but there must be some act shown, from which the jury would be authorized to infer there has been such a delivery of the property as the subject-matter of the gift would authorize. Whore the gift is made to an infant, of a negro, and the donor hires out the negro in the name of the donee, and for his benefit, this would be such an act on the part of the donor, coupled with the declaration he had given the negro to the donee, as would atSliorizo the jury to presume there had been an abandonment of the dominion of the property by the donor to the donee. So, the declarations of tho donor in this case that she had given the negroes to the donee, with the addition that she had delivered her possession of them, would have been prima facie evidence of the fact.
The argument for tho plaintiffs in error insisted, that where it was proved by the declarations of the donor that she had giren the negroes to the donee, it was a presumption of law that all the requisites necessary to constitute a valid parol-gift had been complied with, notwithstanding the possession of tho property remained in the donor until her death. One reason given why a parol-gift of personal chattels is not valid by tho common law, without delivery of possession is, that the locus penitent ice remains to tho donor. Although the donor has said ho will give, or has given the property to the donee, yet, if he repent of the gift before he has parted with the dominion of the property by delivering the possession to the donee, he has the right to do so, and the title does not pass from Mm. Presumptions may bo destroyed by facts. In this case, it is shown, Mrs. Williams, the donor, retained tho possession of the negroes until her death. Why is not the presumption as fair and legitimate that she repented of the gift which she said she had made to tho plaintiff, before parting with the dominion of the property by a delivery of possession, as it is to presume a delivery of the possession thereof from her declarations that she had given tho property to tho donee ?
Possession of personal property is prima facie evidence of ownership ; and the fact that she retained the negroes in her possession for some years after the marriage of the donee, which took place after tho alleged gift is proved to have boon made, affords strong evidence that .she repented of tho gift before parting with the dominion of tho property, and that there never was a delivery of the possession to the donee so as to vest tho title thereto in him.
Tho counsel for the plaintiffs in error have relied mainly on the following cases, to establish tho principle that the jury are authorized lo infer a delivery of possession of the property, from tho declarations of the donor “ that she had given tho negroes to the donee,” &c. — Brashears vs. Blassingame, 1 Nott and McCord’s Rep. 233; Davis and wife vs. the ex’rs of Davis, ib. 225; Grangiac vs. Arden, 10 John. Rep. 302; Reid vs. Colcock, Nott and McCord, 592.
[600]*600In JBrashears vs. Blassingame, the evidence of the ‘gift was the repeated declarations of the father, hoth before and after the marriage of his daughter, that he had given the negroes to her ; and at one time, when the negroes were seen at work for the daughter at her father's house, he said he had given' them up to her. Afterwards, when the daughter and her husband were about to leave her father’s house to go to housekeeping, he made a formal delivery of the negroes, together with household and kitchen furniture, to the daughter and her husband until he should call for them. It will be seen that in this ease there were some acts, from which a delivery of the property might be presumed. The declarations were made by the donor when the negroes were in the employment of the donee; and there was & formal delivery of the negroes, attempted to be qualified by a loan, until he should call for them ; but the court repudiated the loan, and it was competent for the jury to say whether the delivery of the negroes had reference to the gift which he declared he had made of them, or as a loan. Mr. Justice Nott, who delivered the opinion of the court in that case, says, “ that a delivery is necessary to perfect a parol-gift of a chattel, is distinctly admitted : without it, there is no gift. When, therefore, the old man said he had 'given the property to his daughter, he must be understood to have done it with all the solemnities necessary to constitute a gift, and the subsequent possession with his consent, was sufficient evidence of delivery.'" The learned judge in this case recognizes the common-law rule, that there must be a delivery of possession ; and that the possession of the negroes by the donee, with the consent of the donor, was in compliance with that rule.
In Davis & wife vs. ex'rs of Davis, the court say: “ The formal ceremony of a delivery is not essentially necessary. It is sufficient if it appear that the donor intended an actual gift at the time,- and evidenced such intention by some act which may fairly be construed into a delivery, as in the case cited from Strange, where the donee was put into possession by being entrusted with a key, &c. The donor acknowledged he had given the negroes to his daughter, when questioned on the subject, and at a time when she had one of them in her arms.
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By the Court
Warner, Judge.
This case eomes before us on a bill of exceptions to tbe charge of tbe court below to tbe jury on tbe trial of tbe cause.
Tbe counsel for tbe plaintiffs in error requested tbe court to instruct tbe jury that they bad tbe right to infer delivery, and every other requisite of a good and valid gift, from tbe declarations of tbe donor “ that she bad given tbe negroes to tbe donee, that they belonged to her, and she bad no right to sell themwhich instruction tbe court refused to give as requested, but instructed tbe jury — “ If such declarations are accompanied and connected with acts of tbe party giving, distinctly recognizing tbe rights of the donee, or acts of tbe donee, with knowledge of the donor exercising dominion and control of tbe property, without objection from the donor, they are good to prove delivery and other requisites of a good gift.”
By the common law, to make a valid gift of personal chattels, there must be an immediate possession of tbe -thing delivered to the donee.— 2 Black.Com., 441; 2 Kent’s Com. 438; Noble vs. Smith, 2 John. Rep. 52. Do the declarations of tbe donor, “that she bad given tbe negroes to tbe donee, that they belonged to her, and she bad no right to sell them,” authorize tbe jury to find there bad been such a delivery of tbe property as required by tbe common-law rule, when tbe donor has continued in tbe possession of tbe same, and exercised the dominion over it ? We think not, and concur in the opinion of tbe court, below, [599]*599tlmt there must be some act done by the donor from which a delivery may be presumed ; and that the bare declaration of flic donor that she had given the property to the donee is not sufficient. There must some evidence that the donor lias parted with the dominion of the; property.
We do not hold an actual manual delivery is necessary to constitute a valid gift, but there must be some act shown, from which the jury would be authorized to infer there has been such a delivery of the property as the subject-matter of the gift would authorize. Whore the gift is made to an infant, of a negro, and the donor hires out the negro in the name of the donee, and for his benefit, this would be such an act on the part of the donor, coupled with the declaration he had given the negro to the donee, as would atSliorizo the jury to presume there had been an abandonment of the dominion of the property by the donor to the donee. So, the declarations of tho donor in this case that she had given the negroes to the donee, with the addition that she had delivered her possession of them, would have been prima facie evidence of the fact.
The argument for tho plaintiffs in error insisted, that where it was proved by the declarations of the donor that she had giren the negroes to the donee, it was a presumption of law that all the requisites necessary to constitute a valid parol-gift had been complied with, notwithstanding the possession of tho property remained in the donor until her death. One reason given why a parol-gift of personal chattels is not valid by tho common law, without delivery of possession is, that the locus penitent ice remains to tho donor. Although the donor has said ho will give, or has given the property to the donee, yet, if he repent of the gift before he has parted with the dominion of the property by delivering the possession to the donee, he has the right to do so, and the title does not pass from Mm. Presumptions may bo destroyed by facts. In this case, it is shown, Mrs. Williams, the donor, retained tho possession of the negroes until her death. Why is not the presumption as fair and legitimate that she repented of the gift which she said she had made to tho plaintiff, before parting with the dominion of the property by a delivery of possession, as it is to presume a delivery of the possession thereof from her declarations that she had given tho property to tho donee ?
Possession of personal property is prima facie evidence of ownership ; and the fact that she retained the negroes in her possession for some years after the marriage of the donee, which took place after tho alleged gift is proved to have boon made, affords strong evidence that .she repented of tho gift before parting with the dominion of tho property, and that there never was a delivery of the possession to the donee so as to vest tho title thereto in him.
Tho counsel for the plaintiffs in error have relied mainly on the following cases, to establish tho principle that the jury are authorized lo infer a delivery of possession of the property, from tho declarations of the donor “ that she had given tho negroes to the donee,” &c. — Brashears vs. Blassingame, 1 Nott and McCord’s Rep. 233; Davis and wife vs. the ex’rs of Davis, ib. 225; Grangiac vs. Arden, 10 John. Rep. 302; Reid vs. Colcock, Nott and McCord, 592.
[600]*600In JBrashears vs. Blassingame, the evidence of the ‘gift was the repeated declarations of the father, hoth before and after the marriage of his daughter, that he had given the negroes to her ; and at one time, when the negroes were seen at work for the daughter at her father's house, he said he had given' them up to her. Afterwards, when the daughter and her husband were about to leave her father’s house to go to housekeeping, he made a formal delivery of the negroes, together with household and kitchen furniture, to the daughter and her husband until he should call for them. It will be seen that in this ease there were some acts, from which a delivery of the property might be presumed. The declarations were made by the donor when the negroes were in the employment of the donee; and there was & formal delivery of the negroes, attempted to be qualified by a loan, until he should call for them ; but the court repudiated the loan, and it was competent for the jury to say whether the delivery of the negroes had reference to the gift which he declared he had made of them, or as a loan. Mr. Justice Nott, who delivered the opinion of the court in that case, says, “ that a delivery is necessary to perfect a parol-gift of a chattel, is distinctly admitted : without it, there is no gift. When, therefore, the old man said he had 'given the property to his daughter, he must be understood to have done it with all the solemnities necessary to constitute a gift, and the subsequent possession with his consent, was sufficient evidence of delivery.'" The learned judge in this case recognizes the common-law rule, that there must be a delivery of possession ; and that the possession of the negroes by the donee, with the consent of the donor, was in compliance with that rule.
In Davis & wife vs. ex'rs of Davis, the court say: “ The formal ceremony of a delivery is not essentially necessary. It is sufficient if it appear that the donor intended an actual gift at the time,- and evidenced such intention by some act which may fairly be construed into a delivery, as in the case cited from Strange, where the donee was put into possession by being entrusted with a key, &c. The donor acknowledged he had given the negroes to his daughter, when questioned on the subject, and at a time when she had one of them in her arms. This was of itself evidence of a delivery, or surrender of his right to his daughter, and, accompanied with other circumstances, might be deemed a sufficient proof of a prior delivery of all the negroes in dispute.”
In Grangiac vs. Arden, the donor purchased a lottery-ticket, and gave it to his daughter, who was an infant- — wrote her name on the back of it. The ticket drew a prize of $5,000, which was paid to the donor, who frequently declared he had given the ticket to his daughter. On one occasion he said Eliza should not divide it with the family, the ticket was her own, and the prize-money belonged to her, and she should have the whole of it, and he would put it in trade for her. Some years afterwards the mother of the donee being ill, reminded the donor of the prize-money, and requested him to take care of it for his daughter, when he replied: “ You know the ticket ivas Eliza's; the money is hers ; and I have kept it in trade for her to a good profit ; I will never take a shilling of it, or of the profit ; she shall have it all." The donor declared he would put the money in trade for the donee, and some years afterwards declared he had done so to a good profit. In this ease [601]*601there wore acts done by the donor, from wlticb the jury might infer a delivery, independent of the declarations of the donor, such as writing the donee’s name on the back of the ticket, and placing the prize-money in trade for her, and thereby distinctly recognizing her dominion over it, and separating it from the rest of his estate : for if he put the money in trade for her, it was not for himself.
In Held vs. Colcock, there does not appear to bo any acts on the part of the donor, from which a delivery of possession of most of the negroes can reasonably bo inferred, (with the exception of Billy,) other than his declarations made at dilipront times ; but Mr. Justice J ohnson, who delivered the opinion of t|io court, places the decision on the ground that the rule has been fastened on them by the decisions of the courts in that State, “ beyond the means of loosing the fetters without too much violence to the system.” In delivering the opinion of the court in that case, he avails himself of the occasion to remark : “ I have always regarded parol-gifts to children, unaccompanied by a distinct delivery and possession, with great jealousy ; and always feel it iny duty to caution the jury not to support them, except on the most satisfactory proof; and if I wore now called upon to say what the law should be, I would unite heart and hand in rejecting them.”
Shall this court adopt a rule of decision for the government of all similar cases, which it might have occasion hereafter as deeply to regret, as the learned judge whose opinion has just been quoted ? Or shall we adhere to the common-law rule, which requires evidence of some act on the part of the donor, independent of his or her declarations, that he or she had given the property to the donee, from which a delivery of possession may legitimately be inferred ? We are of the opinion the integrity of the common-law rule will best bo maintained, by requiring proof of some act on the part of the donor from which a delivery may be presumed ; or at least a distinct declaration on his part, that there had been a delivery of tho possession of the property to tho donee. The bare declaration by the donor, that he or she had given tho property to the donee, is not sufficient in our judgment to authorize a jury to infer that the legal requisites of a parol-gift have boon complied with.
There are two distinct facts to be established, to make a valid | parol-gift. First, that the donor has given the property to tho donee. , Secondly, that there has been a delivery of possession to tho donee.
On what principle is it that the fact of delivery is to be presumed from the other fact, that tho donor said she had given the property ? On what principle can it bo fairly inferred that the donor, who remains in the possession of the property, has relinquished tho dominion of the same to tho donee, by proof of the fact that the donor said she had given the negroes to tho donee ? Does the fact that the donor declares she has given the negroes to tho donee, also prove a delivery of them to her ? Tf the fact of delivery is necessarily included in the act of giving the property by parol, then further proof of delivery is not necessary ; but if the fact of delivering the possession is not necessarily included in the act of giving the property by parol, then it would seem there ought to be evidence to establish the act of giving the property by [602]*602parol on tbe part of the donor; and evidence of some act going to establish the delivery also, in order to make a perfect parol-gift.
We are therefore of the opinion the instruction given by the court below to the jury in this case, was a fair exposition of the common-law rule, applicable to the facts presented by the record ; and was correct, both on principle and authority. — Pennington, adm. of Patterson vs. Gittings, ex’or, 2 Gill and John. Rep. 208; Ewing vs. Ewing, 2 Leigh’s Rep. 337; Sims vs. Sims, 2 Alabama Rep. 117.
Let the judgment of the .court below be affirmed.