Opinion
July Term, 1818.
From Iredell.
1. In detinue the husband and wife must join for the slave which belonged to the wife before coverture, when the person in possession holds adversely.
2. But when the person has possession under a bailment from the wife made while sole, he is a trustee for the husband, and his possession is that of the husband, who may bring suit in his own name.
DETINUE for a negro woman and her three children. Simonton intermarried with the daughter of the plaintiff and removed to Georgia. Afterwards, when Simonton was on a visit in North Carolina, the plaintiff, who was then a widow, gave or loaned the negro woman, then a girl, to Simonton, and he carried her to Georgia on his return. The testimony left it uncertain whether it was a loan or gift. Declarations of Simonton were given in evidence, in which he said it was a loan, (352) and other declarations in which he stated that if he survived plaintiff the negro was his, and if she survived, it was hers. After the gift or loan the plaintiff intermarried with Armstrong, who afterwards died before Simonton, having taken no steps for the recovery of the negroes.
It was left to the jury to say whether it was a gift or loan to Simonton for his life with a contingent remainder to the plaintiff, or whether it was a loan determinable at the will of the plaintiff. If the first, then the jury was instructed that it was too remote; and if the second, then by the intermarriage of plaintiff the property became Armstrong's, and the right was now in his executors. There was a verdict for defendant, and the case stood on a rule to show cause why there should not be a new trial.
If the plaintiff's husband had thought proper to have brought an action of detinue for the negroes in question, and it would have been necessary to have joined his wife with him in the action, it follows that, as no action was brought, the property has survived to her. And it has been decided in Johnston v. Pasteur, 1 N.C. 582, as well as in several other cases, that it was necessary to make the wife a party, because she was the meritorious cause of action.
But we think those cases are unlike the present, because there the defendant held adversely; here the defendant claims under the bailment of the wife when sole, and it seems to be admitted in the case of Johnston v. Pasteur that when the defendant is a trustee for the husband, then the husband may bring suit in his own name; in other words, that the possession of the bailee was the possession of the husband, and that therefore the right of the husband was complete.
(353)