Opinion
June Term, 1828.
From Wake.
1. Where a parent puts a slave into the possession of a child, without an express parol gift, this possession is not adverse and does not divest the title of the parent or bar his action.
2. But it seems that such a parol gift may be ripened into an indefeasible title by a possession of three years.
3. What title is necessary to enable the plaintiff to maintain detinue. quaere.
DETINUE for a female slave. On the trial the case was that the slave had belonged to one High, whose daughter the plaintiff had married. Upon the marriage of the plaintiff, High sent the slave to his house, where she remained six or seven years, until the plaintiff's daughter intermarried with one Pullen, since the year 1806, when she was sent to the house of the latter, where she remained for many years, and was used and claimed by him as his own. No bill of sale or deed of gift from High to the plaintiff, or from the plaintiff to Pullen, was produced. It appeared that High died in 1813, having duly made his will; but none of its provisions were given in (470) evidence. The defendants claimed under Pullen, by a sheriff's deed, with notice of the plaintiff's title, and relied upon the possession of Pullen under the act of 1820, Rev., ch. 1055, and the statute of limitations.
Gaston, Devereux, and W. H. Haywood for defendants.
Badger for plaintiff.
His Honor, Judge Martin, informed the jury that if the plaintiff's title was derived from High by a parol gift before the act of 1806, it was complete; that if so derived since that act, it was possessory only; but in either event it was sufficient to enable the plaintiff to maintain this action. As to the statute of limitations, the judge instructed the jury that since the act of 1806 a parol gift of a slave operated as a bailment only; that in cases of bailment the statute of limitations did not run until the termination of that contract, and that the fact that the bailee claimed and used the property as his own would not terminate the contract of bailment. And further, that if Pullen claimed by a loan or parol gift from the plaintiff since the act of 1806, the defendants claiming under him with notice of the plaintiff's title were estopped to deny it.
The jury returned a verdict for the plaintiff, and the defendants appealed.
It is not a very easy task to lay down a general rule to decide what special rights in property will support this action, nor is it necessary in this case. The judge properly stated to the jury that if the parol gift to Justice was prior to the act of 1806, Rev., ch. 701, it was good. I concur with him too in saying that if it was since, circumstanced as this case is, Justice can sustain this action.
High, who was the owner of the property in dispute, died in 1813. If he made no will, Justice was entitled to the slave as an advancement, under the act of 1806. If he made a will, as it appears he did, though it has not been given in evidence, it is likely that he either confirmed the title of the property in Justice or bequeathed it to some other person. If the latter is the fact, Justice, and Pullen claiming under him, have held the property adverse to such person for many years. So that in either event the jury were authorized to infer a title in Justice which, accompanied with possession, is sufficient to support this action.
As to the statute of limitations, it can be no bar in favor of Pullen. He held the property, both in fact and in law, under Justice. The act of 1806 declares that "When any person shall have put into the possession of his child any slave, etc., which shall remain in possession of such child at the time of the death of such donor, such slave shall be considered as an advancement to such child." The object of the act would be defeated if the child's possession could be ripened into title by a (472) continuance of three years.
But if an express parol gift was proved to Pullen, it would seem that a three years adverse possession would complete his title. But I give no opinion on this point, as the case does not require it. No gift is proved to Pullen; he relies upon an implied one, arising from possession.
As to the estoppel spoken of on the defendants, it may be observed that whether they had notice or not, they could not have a better title than Pullen himself had, as long as they claimed under him. The only difference between them would be that the defendant's right, although it would not be better than Pullen's when first derived from him, yet might be ripened into title by an adverse possession of sufficient length, whether they had notice of Justice's title or not.
PER CURIAM. Judgment affirmed.
Overruled: Palmer v. Faucett, 13 N.C. 240.