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ZACHARIE V. FRANKLIN, 37 U. S. 151 (1838)
U.S. Supreme Court
Zacharie v. Franklin, 37 U.S. 12 Pet. 151 151 (1838)
Zacharie v. Franklin
37 U.S. (12 Pet.) 151
Under the laws of Louisiana and the decisions of the courts of that state, a mark for the name to an instrument by a person who is unable to write his name is of the same effect as a signature of the name.
A bill of sale of slaves and furniture reciting that the full consideration for the property transferred had been received, and which does not contain any stipulations or obligations of the party to whom it is given, is not a synalagmatic contract, under the laws of Louisiana, and the law does not require that such a bill of sale shall have been made in as many originals as there were parties having a direct interest in it, or that it should have been signed by the vendee.
Evidence will be legal as rebutting testimony as to repel an imputation or charge of fraud which would not be admissible as original evidence.
The defendants in error, Henry Franklin and wife, on 23 January, 1836, presented a petition to the District Court of the United States for the Eastern District of Louisiana for the recovery of certain slaves, with their children, and also of certain stock and household furniture which the petition alleged had been sold to him by Joseph Milah by a bill of sale duly recorded in the proper notarial office. The bill of sale was in the following words:
"State of Louisiana, Parish of St. Helena"
"Know all men to whom these presents may come that I, Joseph Milah, have this day bargained, sold, and delivered unto Henry Franklin, his heirs, executors, administrators, and assigns, six negroes, namely, one negro woman, named Neemy; one boy, do. John; one do. Sam; one do. Nels; one negro girl, named Harriet; one do. Jenny; together with all of my cattle, hogs, horses, household and kitchen furniture, for the sum of twenty-eight hundred dollars, to me in hand paid, which property I do warrant and defend from me, my heirs, executors, and assigns, to him, his heirs, executors, administrators, and assigns forever. "
"In witness whereof, I have hereunto set my hand and seal, this 17 July, 1819."
"[Signed] JOSEPH his X mark MILAH"
"JOEL OTT [L.S.]"
The condition of the above bill of sale is such, that the above mentioned property remain in my possession so long as I live, and after my body is consigned to the grave, to remain, as above-mentioned, in the above bill of sale.
"[Signed] JOSEPH his X mark MILAH"
"I certify the within to be truly recorded in register, in page 55, according to the law and usage of this state. In faith whereof, I grant these presents under my signature, and the impress of my seal of office, at St. Helena, this 23 July, 1819."
"[Signed] JAMES McKIE [SEAL]"
Joseph Milah died in July, 1834, and the petition claimed that the plaintiffs were entitled to the negroes, with their children, and the other property mentioned in the bill of sale, which, at the time of bringing the suit, were in the possession of the defendants, who held and detained them, and have refused to deliver them to the petitioners.
On the fifth day of February, 1836, John and Letitia Zacharie answered the petition, admitting they were in the possession of the negroes mentioned in the petition, and they aver that Letitia Zacharie is in such possession, in her capacity of tutrix of her minor children, who are the lawful proprietors of them by inheritance, from their father, Joseph Milah. They deny that the bill of sale was ever signed by Joseph Milah, and if signed by him, it was done in error
and through false and fraudulent representations of the plaintiff, and no consideration was given for the same, and the same was fictitious and collusive and intended to cover or conceal a disguised donation of the slaves mentioned in the same, and was therefore null and void. The defendants asked for a trial by a jury. Afterwards, by a supplemental answer, the defendants say that at the time of the alleged sale, under private signature, Joseph Milah had neither children or descendants actually living, and since the same, the children of which Letitia Zacharie is the tutrix have been born and are now living.
On the trial there was given in evidence by the plaintiffs, among other documents, an instrument executed in South Carolina, Richland District, by Joseph Milah on 11 July, 1805, by which Joseph Milah, under his hand and seal, gave a negro wench and a negro boy, and also his personal property, to Sarah McGuire. This deed was regularly acknowledged; and was recorded in the Richland District in South Carolina on 10 December, 1805.
The cause was tried by a jury, and a verdict was rendered for the plaintiffs, on which the court gave a judgment. The defendant took two bills of exceptions.
The first bill of exceptions was in the following terms:
"On the trial of this cause, the plaintiff offered in evidence an instrument in writing to his petition annexed, and bearing date 17 July, 1819, and purporting to be executed by Joseph Milah by the affixing of his mark, and offered to prove same by the evidence of William McMichael and Joseph Ott, whose signatures are affixed as subscribing witnesses, which instrument is made part of this bill of exceptions: the defendants objected to the introduction of said instrument and testimony on the ground 1st, that being an instrument purporting to convey slaves, the same was null and void as not having been signed by the vendor; and that no parol proof could be admitted to prove its execution; 2. that a mark is not a signature within the provision of the laws of Louisiana, in relation to the conveyance of slaves; 3. that the instrument, containing a synalagmatic contract or mutual and reciprocal obligation, not being in the form of an authentic act, was invalid because not made in as many originals as there were parties having a direct interest; 4. that the same was not signed by the vendee. But the court overruled the objections."
The second bill of exceptions was taken to the admission in evidence
of the instrument executed in Richland District, South Carolina, as a gift or donation of two slaves and certain personal property.
1. Because the plaintiffs in their petition claim to have a title to the slaves referred to in their petition by virtue of a bill of sale to Henry Franklin, one of the plaintiffs, under date of 17 July, 1819, and that they cannot offer evidence to establish title from any other source than that therein stated.
2. Because there is no evidence of the identity of the person by whom this instrument purports to have been executed, with James Milah, under whom plaintiffs claim, nor of the slaves named in the petition.
The defendants also moved for a new trial, on reasons filed; which motion was overruled by the court.
The defendants prosecuted this writ of error.
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