Mahan v. United States
83 U.S. 143

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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

APPEAL FROM THE

COURT OF CLAIMS

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

MR. JUSTICE MILLER delivered the opinion of the Court.

The sole question in the case is whether the appellant was the owner of the cotton at the time of its seizure by the agents of the United States, and this must be decided as a matter of law on the finding of facts made by the Court of Claims, notwithstanding the frequent reference by the counsel of the appellant to the view which he takes of the evidence given in that court.

It is strongly urged by the counsel that by the common law, the facts as found by the court constituted a valid sale of the property and that, as there was no statute of frauds in force in the State of Mississippi requiring delivery or a written memorandum to make a sale of personal property valid, the parol agreement set out in this finding constituted a valid sale. Whether this would be so in the absence of such a statute as most of the states have on that subject might admit of serious debate.

But while there is no such provision in the authorized publication of the statutes of Mississippi of 1840 by Howard and Hutchinson, to which we have been referred, we find in the Revised Code of Mississippi of 1857, which, from our own researches, we are bound to believe was the law in force when this agreement was made, a very stringent provision on this subject in the statute of frauds and perjuries of that code.

Article four of chapter forty-four * enacts that no contract for the sale of any slaves, personal property, goods, wares, and merchandise for the price of fifty dollars or upwards shall be allowed to be good and valid except the buyer shall receive the slaves, or part of the personal property,

Page 83 U. S. 147

goods, wares, and merchandise 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.

The finding of the Court of Claims negatives in the most express terms the existence in the agreement, by which the title of the cotton was supposed to be transferred, of each and everyone of the acts or conditions, some one of which is by that statute made necessary to the validity of the contract.

To hold that an agreement which that statute declares shall not be allowed to be good and valid was sufficient to transfer the title of the property to the claimant would be to overrule the uniform construction of this or a similar clause in all statutes of frauds by all the courts which have construed them.

The Court of Claims held that the agreement passed no title, and we concur in their conclusion on that subject.

It is unnecessary to examine into the effect of the transaction as a gift inter vivos. The finding that there was no delivery would be as fatal to such a gift as to the agreement of sale. Besides, there is nothing in the petition of the plaintiff or in the findings of the Court of Claims on which such a gift could be considered as in the issue. The finding that it was a parol contract of sale is directly opposed to the idea of a gift.

Decree affirmed.

* Page 359.

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