Mahan v. United States
83 U.S. 143 (1872)

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U.S. Supreme Court

Mahan v. United States, 83 U.S. 16 Wall. 143 143 (1872)

Mahan v. United States

83 U.S. (16 Wall.) 143

Syllabus

1. Under article 4 of chapter xliv of the Revised Code of Mississippi, which enacts,

"That no contract for the sale of any personal property &c., shall be allowed to be good and valid except the buyer shall receive part of the personal property or shall actually pay or secure the purchase money, or part thereof, or unless some note or memorandum in writing of the bargain be made and signed by the party to be charged by such contract or his agent thereunto lawfully authorized,"

a parol agreement for the sale of cotton in payment of a mortgage debt cannot be sustained where, though the price of the cotton per pound was fixed, the number of pounds was not definitely ascertained, nor any payment was endorsed on the mortgage, nor any receipt given, nor any memorandum in writing made, nor any present consideration paid, nor any change of possession effected, nor any delivery, either actual or symbolic, made.

2. Such a transaction would, from want of delivery, not be good as a gift inter vivos.

One Mitchell of Mississippi, being indebted to his stepdaughter, of whose estate he had been the guardian, mortgaged, with his wife (the mother of the step-daughter mentioned), a life estate which the wife had in a valuable cotton farm in Mississippi near the river of that name, and soon afterwards died. Mrs. Mitchell, his widow, became administratrix of his estate. In 1861, the rebellion broke out. There were at this time one hundred and sixteen bales of cotton on the farm, and the war being flagrant in Mississippi, the Confederate general ordered all cotton near the river, under penalty of being burnt, to be removed from it in order to prevent its capture by the forces of the United States.

In compliance with this order, Mrs. Mitchell removed the cotton to Kingston, near Natchez, where it was stacked and covered.

"After the cotton had been thus removed to Kingston, but before the capture of Natchez by the United States forces and before the passage of the Abandoned and Captured Property Act, a parol agreement was made between

Page 83 U. S. 144

Mrs. Mitchell and her daughter, now like herself a widow, to the effect that the latter should take the cotton as a payment upon the mortgage before described. The price was fixed at twenty cents per pound, but the number of pounds was not definitely ascertained; neither was any payment endorsed upon the mortgage, nor any receipt given, nor any memorandum in writing made, nor any present consideration paid. Neither did any change of possession take place, nor was there any delivery, actual or symbolic. The cotton remained at Kingston until its seizure by the military forces of the United States, immediately upon which the daughter asserted that she was the owner and sought to procure its release."

Not succeeding in this, and the cotton being sold, and the Captured and Abandoned Property Act being passed, which allowed loyal owners of property captured in the South and so disposed of to apply to the Court of Claims for the proceeds, the daughter (now remarried to one Mahan) filed with her husband a petition in the court just named to have the money which, on sale of it, the cotton had brought. The Court of Claims said:

"The party relies upon a purchase and sale at which, so far as the evidence shows, she paid no money, relinquished no rights, released no debt, assumed no responsibility, and acquired no possession. The intent of the parties was not evidenced by the payment of the purchase money, nor by the ascertainment of the price, nor by a receipt upon the mortgage, nor by a written memorandum between the parties, nor by any formal or decisive declaration before witnesses, nor by the delivery of the thing sold. The facts do not, in law, establish a sale and delivery, and the evidence to prove the ownership of the captured property fails."

The court accordingly dismissed the petition, and from that dismissal this appeal came.

Page 83 U. S. 146

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