Mecklenburg County NcArchives Court.....Moses Green, James Cowan V. 1819
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File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 5, 2009, 6:56 pm

Source: Nc Reports
Written: 1819

James Cowan v. Moses Green

From Mecklenburg

November Term 1819

A case being sent to this Court upon a particular point, and this Court upon 
looking into the record discovering that there were other material points 
arising in the case and connected with its merits, declined deciding the point 
sent up and awarded a new trial, that all the circumstances relating to the 
points discovered by this Court, might be examined in the Court below.

In an action of detinue for a slave, brought by a mortgagee against a 
purchaser from the mortgagor, a single question was submitted to this Court, 
to-wit, whether the mortgagor's possession of a slave, after the mortgage deed 
was executed, was fraudulent per se against subsequent purchasers. The 
mortgage deed and bill of sale to the Defendant, a purchaser, formed part of 
the case, and the mortgage deed appeared not to have been registered within 
fifty days from the time it was made, nor until after the registration of the 
bill of sale to the Defendant. A new trial awarded, because the merits of the 
case were not disclosed by the statement, sent up.

This was an action of detinue for a negro slave named Letty. Plea, general 
issue. The facts of the case were, that McBryde being the owner of the negro 
slave Letty, conveyed her with others to the Plaintiff Cowan, in mortgage, to 
secure a debt which he owed to the Plaintiff. The conveyance was made on 1 
August, 1814, and McBryde continued in possession of the slaves, using them as 
his own for a few months, when he sold three of them, for the purpose of 
raising money to discharge part of the debt due to the Plaintiff. This sale 
was made with the knowledge and consent of the Plaintiff, who, to that end, 
was consulted both by the purchaser and McBryde. The other slaves remained in 
McBryde's possession until the year 1815, when he sold and conveyed Letty to 
the Defendant, for a full and valuable consideration paid to him. It was 
contended on behalf of the Defendant, that the possession of the slaves by 
McBryde after his conveyance to the Plaintiff (it not being set forth in the 
conveyance that McBryde was to continue in possession) was fraudulent in law 
as to a subsequent purchaser, and therefore the conveyance to the Plaintiff 
was void as against the Defendant. It was further contended that if such 
conveyance was not fraudulent per se, yet the Jury ought to find it to be 
fraudulent, because the Plaintiff had suffered McBryde not only to continue in 
possession of the slaves, but also to use and dispose of them as his own. The 
presiding Judge reserved the first point, and left the second to the Jury, who 
found for the Plaintiff, subject to the opinion of the Court upon the first 
point.

Upon this statement of facts, the case was sent to this Court, and the 
mortgage deed to the Plaintiff and the bill of sale to the Defendant, formed 
part of the case. Upon looking into the case here, it was observed that the 
mortgage deed to Cowan, the Plaintiff, had not been registered within fifty 
days after its execution, nor until after the registration of the deed to the 
Defendant. And this Court, being of opinion that these, facts, and the 
circumstances connected with them, ought, to have been taken into 
consideration in deciding the case, awarded a new trial.

Taylor, Chief Justice: The case sent up refers to the Court a single question, 
whether McBryde's possession of the slaves makes the deed fraudulent and void? 
If it be decided that it does not, judgment is to he entered for the 
Plaintiff. But upon looking into the deeds transmitted with the case it will 
appear that, there is a still more important enquiry; for the mortgage deed to 
Cowan was not registered within fifty days from the time it was made, nor 
until after the registration of the deed to the defendant. If, by this, the 
Plaintiff has lost his priority, the title of the slave is not in him. So, 
that the merits of the case are not disclosed by the statement. 

It is therefore proper that there should be a new trial, for the purpose of 
bringing forward those other circumstances which relate to the title.


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