Melton v. . McKesson

35 N.C. 475

• Court: Supreme Court of North Carolina
• Decided: August 5, 1852
• Status: Published

Opinion

Peakson, J.

A guardian, on the first day of January, hired out a negro, belonging to his ward, for the year. The ward arrived'at age on the 29th of that month; and the single question is, had the ward a right, after arriving at age, to take the negro from the possession of the hirer ?

The question, as it seems to us, scarcely admits of debate. A guardian is appointed to act for the infant, until he arrives at full age. At that time the appointment expires and the party is presumed to be then capable of acting for himself. Upon what principle can a guardian oyér-reach his time so as to bind the ward ? We can see none.

Land cannot be rented out, except for a term long enough to put in and mature a crop. Hence the statute, which makes it the duty of guardians to rent out the land and hire out the negroes of wards, from abundance of caution, has an express proviso that no guardian shall let or farm out any land belonging to any orphan for a longer term than the orphan be of age. Rev. Stat. ch. 54, sec. 15.

Negroes -may be hired for a month or a week or by the day. The guardian knows when his ward will arrive at full age. Hence it was not conceived to be necessary, ex abundanti cautela to say to him, you shall not hire a negro for a longer time than the orphan be of age!

Put a case: a ward will arrive at age in May — his land has been rented out for the year before. The small grain is taken off in June and July; the corn in October and November. The doctrine of emblements, by which he who sows shall reap, does not apply. Now, must the guardian rent out the land for a time long enough to put in and mature a crop, and thereby overreach his own time, or must he let the land lie idle and unproductive until May ? To-relieve him from all doubt, the statute has an express proviso — let it lie “idle" rather than overreach your time. But in reference to negroes the guardian is not put in any such predicament! True, a negro may hire for a better price if hired for the whole year; but still he need not be idle and unproductive, for he can be hired for a month or a week or a day. Thei'e is error.

Per Curiam. Judgment reversed and venire de nova;