Nickerson v. Nickerson

• Decision Date: 28 February 1868
• Parties: JOHN S. NICKERSON v. JOHN L. NICKERSON.
• Court: Maryland Court of Appeals

28 Md. 327

JOHN S. NICKERSON v. JOHN L. NICKERSON.

Court of Appeals of Maryland

February 28, 1868

APPEAL from the Orphans' Court of Queen Anne's County.

At the trial below, the plaintiff offered the following prayer:

If the jury shall believe from the evidence that the defendant gave to the plaintiff, the negro man Bill, verbally, and that in pursuance of said gift, the defendant delivered possession of said negro to the father of the plaintiff, his natural guardian, and shall further believe that subsequent to said gift and delivery, the defendant converted the said negro to his own use, they must find for the plaintiff. To this prayer the defendant objected, and the Court sustained the objection but granted the prayer, with the amendment in parenthesis thereto added, as follows: "If the jury shall believe from the evidence that the defendant gave to the plaintiff verbally, the negro man, (and that at the time,) and in pursuance of the said gift, the defendant delivered possession of the said negro to the father of the plaintiff his natural guardian, and shall further believe that subsequent to said gift and delivery, the defendant converted the said negro to his own use, they must find for the plaintiff." To this instruction, the plaintiff excepted.

The defendant asked the Court to instruct the jury as follows:

1st. That they cannot find that a valid and perfect gift has been made by the defendant to the plaintiff, of the negro mentioned in the declaration, unless they shall believe from the testimony in this cause, that at the time of said gift there was a delivery of the boy Bill Johnson in pursuance of the gift, and that the said boy was transferred to the sole use and possession of the said plaintiff, or to his father and natural guardian Samuel Nickerson, for the use and benefit of the said plaintiff.

2d. That if they shall believe from the testimony in this cause that sometime in January, 1853, the defendant in the presence of the witness Mrs. Wallace, said to Bill Johnson, the negro mentioned in the plaintiff's declaration, "Go home Bill, to Sam and serve him, until John comes of age, and then you will go to John," neither Samuel Nickerson nor the plaintiff being present, the said declarations do not constitute a gift in the law, although they shall believe that the said negro afterwards went into the possession of Sam. Nickerson until his death, and although the defendant had frequently said since, that he had given the said negro to Sam. Nickerson or to John Nickerson.

To these instructions the plaintiff objected, but the Court overruled the objection, and granted the instructions thereupon the plaintiff excepted, and the verdict and judgment being against him, he appealed.

The cause was argued before BARTOL, C.J., STEWART, GRASON, MILLER and ALVEY, J.

John P. Poe, for the appellant:

The first prayer of the defendant should have been rejected. It instructed the jury that they could not find a valid and perfect gift of the negro boy in suit, to have been made by the defendant to his grandson, the plaintiff, unless they believed that at the time of the gift, and in pursuance of it, there was a delivery of the boy, and that he was transferred to the sole use and possession of the plaintiff, or to his father and natural guardian, for his use and benefit. The proof in the case being that the boy was given verbally by the appellee to his son, Samuel Nickerson, until his grandson, the plaintiff, should arrive at age, when he was to belong to him, and the plaintiff maintaining that there was a sufficient delivery under the statute to make the gift valid, it is clear that an instruction which required the jury to find that the possession of Samuel or John S. Nickerson was exclusive, was calculated to mislead (as it did, in fact, mislead) them, and made it impossible for the plaintiff to recover. The gift was to both of them--to the son until the grandson arrived at age, and then to him. Now, the negro boy was never delivered to the sole use and possession of either of the donees, but the gift was to each of them successively, and the instruction should have conformed to the evidence. It was, therefore, clearly erroneous, for this reason alone, as well as because it did not correctly announce the law relating to parol gifts of negroes, under the Act of 1763, chapter 13, as applied to the facts of this case, as will be shown under our third point.

The second prayer should also have been rejected. It declared that there could be no valid parol gift of a negro, unless the donees were actually present at the precise moment of the gift, although the jury might believe from the testimony that immediately thereafter, in pursuance of the gift, the negro went into the possession of the donees, who accepted him, and although the defendant had frequently afterwards, while the negro was in their possession, acknowledged and ratified the gift. The actual presence of the donee, at the precise moment of the gift, is not required by the statute nor by any of the decisions in which it is interpreted.

In considering the ruling of the Court upon the prayer offered by the plaintiff, it is conceded that the general principle under the Act of 1763, ch. 13, is, that a parol gift of a negro, to be valid, should be accompanied by delivery. The objection to this ruling is not that the general principle is not correctly stated, but that it is not accurately applied to the case, and does not present the whole law to the jury. If it be conceded, for the sake of the argument, that the prayer as originally presented was not strictly up to the standard required by some of the decisions of this Court, and that if the Court below had simply rejected it, its action might have been successfully vindicated, still, as the learned Judge undertook to modify it, he was bound, in so doing, to give to the jury the whole law of the case in terms...