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LECTURE XXXVIII.

OF TITLE TO PERSONAL PROPERTY, BY GIFT.

TITLE to personal property by transfer by act of the party, may be acquired by gift, and by contract.

There has been much discussion among the writers on the civil law, whether a gift was not properly a contract, inasmuch as it is not perfect without delivery and acceptance, which imply a convention between the parties. In the opinion of Toullier," every gift is a contract, for it is founded on agreement; while, on the other hand, Puffendorf had excluded it from the class of contracts, out of deference to the Roman lawyers, who restrained the definition of a contract to engagements resulting from negotiation. Barbeyrac, in his notes to Puffendorf, insists, that upon principles of natural law, a gift inter vivos, and which ordinarily is expressed by the single term gift, is a true contract; for the donor irrevocably devests himself of a right to a thing, and transfers it gratuitously to another, who accepts it, and which acceptance, he rationally contends, to be necessary to the validity of the transfer. The English law does not consider a gift, strictly speaking, in the light of a contract, because it is voluntary, and without consideration; whereas a contract is defined to be an agreement upon sufficient consideration to do, or not to do, a particular

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a Droit Civil Francais, tom. 5. Des Donations entre vifs, sec 4. and 5. and n. 1.

b Droit des Gens, liv. 5. ch. 3. s. 10. note 6.

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thing; and yet every gift which is made perfect by delivery, and every grant, are executed contracts, for they are founded on the mutual consent of the parties, in reference to a right or interest passing between them.

There are two kinds of gifts: 1. Gifts, simply so called, or gifts inter vivos, as they were distinguished in the civil law; 2. Gifts causa mortis, or those made in apprehension of death. The rules by which they are governed are different, and quite distinct, and they were taken from the Roman law.

1. Gifts inter vivos have no reference to the future, and go into immediate and absolute effect. Delivery is essential, both at law and in equity, to the validity of a gift, and it is the same whether it be a gift inter vivos, or causa mortis. Without actual delivery the title does not pass. A mere intention, or naked promise to give, without some act to pass the property, is not a gift. There exists the locus pænitentiæ so long as the gift is incomplete, and left imperfect in the mode of making it; and a court of equity will not interfere and give effect to a gift left inchoate and imperfect. The necessity of delivery has been maintained in every period of the English law. Donatio perficitur possessione accipientis, was one of itsancient maxims.

The subject of the gift must be certain, and there must be the mutual consent and concurrent will of both parties. It is, nevertheless, hinted or assumed, in ancient and modern cases,d that a gift of a chattel, by deed or writing, might do without delivery, for an assignment in

a 2 Blacks. Com. 442.

b Antrobus v. Smith, 12 Vesey, 39.

c Jenk. Cent. p. 109. case 9. Bracton de acquirendo rerum Dcminio, lib. 2. p. 15, 16.

d Flower's case, Noy's Rep. 67. Irons v. Smallpiece, 2 Barnw. & Ald.

551.

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writing would be tantamount to delivery. But in Cotteen v. Missing, a letter to executors expressing a consent that a specific sum of money be given to a donee, was not a sufficient act in writing; and it was held not to be a gift of so much money in their hands, because the consent was not executed and carried into effect, and a further act was wanting in that case to pass the money. The Vice Chancellor held, that money paid into the hands of B., for the benefit of a third person, was countermandable so long as it rem ned in the hands of B. A parol promise to pay money as a gift is not binding, and the party may revoke his promise; and a parol gift of a note from a father to a son, was held not to be recoverable from the executors of the father.c

Delivery in this, as in every other case, must be according to the nature of the thing. It must be an actual delivery so far as the subject is capable of delivery. It must be secundum subjectam materiam, and be the true and effectual way of obtaining the command and dominion of the subject. If the thing be not capable of actual delivery, there must be some act equivalent to it. The donor must part, not only with the possession, but with the dominion of the property. If the thing given be a chose in action, the law requires an assignment, or some equivalent instrument, and the transfer must be actually executed. Therefore, where a donor expressed by letter his intention of relinquishing his share of an estate, and directed the preparation of a release of the personal estate, and he died before it was executed, it was held that his intention, not being perfected, did not amount to a gift.e

a 1 Maddock's Ch. Rep. 176.

b Pearson v. Pearson, 7 Johns. Rep. 26.

e Fink v. Cox, 18 Johns. Rep. 145. d Hawkins v. Blewitt, 2 Esp. Rep. 663. Rep. 52.

e Hooper v. Goodwin, 1 Swanston, 486.

Noble, Smith, 2 Johns.

When the gift is perfect, it is then irrevocable, unless it be prejudicial to creditors, or the donor was under a legal incapacity, or was circumvented by fraud. A pure and perfect gift inter vivos was also held by the Roman law to be in its nature irrevocable; and yet in that law it was nevertheless revocable for special reasons, such as extreme ingratitude in the donee, or the unexpected birth of a child to the donor,or when sufficient property was not left with the donor to satisfy prior legal demands. The English law does not, and cannot indulge in these refinements, though it controls gifts when made to the prejudice of existing creditors.

By the statute of 3 Henry VII. c. 4., all deeds of gifts of goods and chattels in trust for the donor, were declared void; and by the statute of 13 Eliz. c. 5., gifts of goods and chattels, as well as of lands, by writing or otherwise, made with intent to delay, hinder and defraud creditors, were rendered void, as against the person to whom such fraud would be prejudicial. These statutes have been reenacted in this state, and doubtless the principle in them, though they may have not been formally or substantially re-enacted, prevails throughout the United States. All the doctrines of the courts of law and equity, concerning voluntary settlements of real estates, and the presumptions of fraud arising from them, are applicable to chattels, and a 'gift of them is equally fraudulent and void against existing creditors. Voluntary settlements, Whether of lands or chattels, even upon the wife and chadren, are void in these cases, and the claims of justice precede those of affection. The English cases were

a Code, lb 8. bt. 56. De revocandis Donationibus. l. 10. Ibid. 1.". Code. lib 3 tit. 29. Difficiosis Donationibus. Puff. Droit des Gens, par. Brbeyrac, tome 2 43 note.

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b L. NY. sess. 10. ch. 44.

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yard v Hoffman 4 Johns Ch Rep. 450.

d This sentiment is strongly inculcated and sententiously expressed iro. De Off. 1. 14 ) V dendum est igitur, ul ea liberalitate utamur, quæ prosil amicis, noceat nemini. Nihil est enim liberale, quod non idem justu.n.

extensively reviewed and considered in the case of Reade v. Livingston; and the doctrine of that case had not only been previously established in the state of New-Jersey,b but it has since been explicitly recognised by the Supreme Court of this state, and by the Supreme Court of the United States, and it prevails equally in other states.d A voluntary conveyance, if made with fraudulent views, would seem to be void, even as to subsequent creditors, but not to be so, if there was no fraud in fact.e

It has been said by the elementary writers, that the statute of 13 Eliz. does not extend to voluntary settlements of property, which a creditor could not reach by legal pro

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d Sexton v. Wheaton, & Wheaton, 229. Hinde v. Longworth, 11 ibid, 199. Thompson v. Dougherty, 12 Serg. & Rawl. 448. Parker v. Procter. 9 Mass. Rep 390. Bennet v. Bedford, 11 ibid. 421. Meserve v.

Dyer, 4 Greenleaf, 52.

e Reade v. Livingston, 3 Johns Ch. Rep. 501, 502. Bennet v. Bedford Bank, 1 Mass. Rep. 421. Damon v. Bryant, 2 Pickering, 411. But according to the case of Meserve v. Dyer, 4 Greenleaf, 52, a deed cannot be impeached for fraud, by a person who was not a creditor at the time of the conveyance; and a party whose claim at the time rested in damages for a tort, and which damages had not been ascertained, admitted, and made certain by judgment, was not such a creditor. This case contradicts the conclusion to be drawn from the language of the other cases; (for it was not a direct ground of decision in any of them; and so far as it denied to the claimant the benefit of his charac ter as a creditor at the time of the conveyance, it is not in harmony with the cases of Fox v. Hills, 1 Conn. Rep. 295. and Jackson v. Myers. 18 Johns Rep 425. The reasoning of the court on the principal point, was reserved for another case involving the same question, and which is not yet reported. In this state of the authorities, we must consider the general question involved in them as remaining to be definitively settled in our American jurisprudence.

f Alherly on Marriage Settlements, 220. 1 Roberts on Fraudulent Conveyances, 421, 422.

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