VI. Title to Slaves—
A. By Deed. There was no statutory restriction upon the sale or transfer of slaves from one person to another.[148] Secret and fraudulent transfers became so numerous that sales of slaves and deeds of gifts were in 1784 required to be in writing attested by at least one creditible witness and recorded within nine months thereafter.[149] By an act of 1801, such transfers were no longer required to be recorded if possession accompanied the sale or gift.[150] In the case of Davis v. Mitchell, Judge Green charged the jury that “a deed registered is only necessary where possession does not accompany gift or sale.”[151] A bill of sale of slaves by a person indebted, who still retained possession of the slaves, after the execution of the bill of sale, was void against creditors, although a valuable consideration was received. A conveyance of personality presupposed a transfer of possession.[152]
B. By Devise. The transfer of slaves by will followed the same procedure as real estate. A will, valid in either law or equity, had to be in the handwriting of the deceased and signed by him or some other person in his presence representing him and by two witnesses. Such a devise was in fee simple unless an estate of less dignity was definitely conveyed.[153] If the deceased left no will, the slaves became the property of the widow for life, the widow being required to give bond to the county that such slaves with their increase would be returned at her death to the administrators of her deceased husband’s estate. In absence of the wife, the slaves were equally distributed among the children.[154] By act of 1796, half bloods were inherited equally with full brothers and sisters. In the absence of such brothers and sisters, the law of distribution was followed among the collateral heirs.[155] By act of 1819, foreigners who had settled in Tennessee and had not been naturalized inherited in the same manner as natural born citizens.[156]
C. By Parol Contract, and Gifts to Children in Consideration of Marriage. Conveyance of slaves was required to be in writing and properly attested by witnesses. There could be no transfer of title by parol and no deed of gift was recognized unless it was proved and registered.[157] By act of 1805, the transfer of slaves in consideration of marriage, to be valid against creditors, had to be acknowledged by the grantor or proved by two credible witnesses and recorded in the county of the grantor within nine months.[158]
D. By Statute of Limitation. In Tennessee, three years of adverse possession invested the title of a slave in the possessor by virtue of the statute of limitation.[159] By the statute of limitation, a gift of parol, which is absolutely void, would, after the lapse of three years’ possession, convey title.[160] Judge Green in Davis v. Mitchell, held that an infant might hold adverse possession of a slave, either by himself or through a guardian, and that three years of such possession invested the title of the slave in him.[161] Three years of uninterrupted possession not only invested title, but the right to convey that title.[162]
E. By Statute of Frauds and Fraudulent Conveyances. All gifts, grants, loans, alienations or conveyances made with fraudulent purposes were valid only between the parties making them and their heirs, assigns, and administrators, and in no way barred the action of creditors.[163] A conveyance of goods or chattels, without a valuable consideration, was considered fraudulent, unless it was made by a will duly proved and recorded or a deed acknowledged and proved. By act of 1805, such recording had to be done within nine months to be valid against creditors or future purchasers.[164] In Tennessee the want of possession was only prima facie evidence of fraud, and might be explained.[165] If a father represented a slave to be his son’s delivered possession and permitted possession to continue during the lifetime of the son, who also claimed the slave as his own, it was a gift. The acknowledgment of the son that the slave belonged to the father would not bar the claim of the widow.[166]
F. By Prescription. Prescription passed the title and possession of slaves in Tennessee.[167] In the case of Andrews v. Hartsfield, Judge Green held that a bona fide loan of slaves by a father to a married daughter for five years subjected the slaves to sale for the debts of her husband.[168]
VII. The Law of Increase—
A. As to Condition of Increase. Tennessee adopted the rule of nature, pertaining to human creatures, in declaring that the condition of the mother should be that of the child. Children born of a mother emancipated at a future date received their freedom with the mother. In the case of Harris v. Clarissa, who was to receive her freedom at the age of twenty, Judge Catron, speaking of the condition of her children born after the bequest of her freedom, said: “Had she been a slave forever, their condition would have been the same, she being a slave for years, their condition could not be worse. The child before born is a part of the mother, and its condition the same; birth does not alter its rights.”[169] Children born of a mother conditionally manumitted were held to be slaves.[170]
B. As to the Ownership of the Increase. Tennessee held that there was only one title to mother and child. If a negro woman were devised to one person for life, with the remainder to another, and during the life estate, she gave birth to children, they belonged not to the tenant for life, but to the remainder man.[171] The first legatee held only a particular interest, while the second held absolute title.[172] If the first devisee received an absolute estate, the increase went to him.[173] The term increase was usually qualified by the word “future” in order to restrict its application to only the issue after the bequest of freedom to the mother.[174]