Opinion
(June Term, 1851.)
In detinue by as husband and wife for a slave, when it appeared that the slave had been given to A. for life, and after her death to the feme plaintiff, who, at the death of the tenant for life, was an infant and married and had never since been discovert: Held, that the action was not barred by the statute of limitations.
APPEAL from Dick, J., at PASQUOTANK Spring Term, 1851.
Detinue for a female slave, named Anne, and three others, who are her children. The pleas were non detinet and the statute of limitations. On the trial the case was this: Shadrack Davis bequeathed Anne, when quite young, to Mrs. Sexton for her life, and then over to Susanna Williams, the feme plaintiff, who afterwards intermarried with the other plaintiff while she was an infant and before the death of Mrs. Sexton, which happened in the year 1833. The defendant alleged that the plaintiff John sold the girl Anne to one Owen Williams; and to establish the sale, evidence was given that soon after the death of Mrs. Sexton one Shadrack Davis, Jr., had the girl in possession, claiming her as his, and that the plaintiff John, in the presence of the girl, mentioned to a witness that he had sold her too low to Owen Williams, and that he ought to have had $50 more for her; and that he said to another witness that he had sold her to said Williams. Evidence was also given that the plaintiffs resided in Pasquotank before 1833 and have resided there ever since, and that Shadrack Davis, Jr., resided there until his death in 1837, and that then his administrator sold the girl publicly to one Jackson, and that he and the defendant who claims under him (150) have continued the adverse possession of her and her children in the same county up to the bringing of this suit in 1850.
The court instructed the jury that if they should believe, upon the evidence, that the plaintiff John McLean had sold Anne to Owen Williams, they ought to find for the defendant. And if they should not find that such a sale was made, but should believe that Jackson purchased the girl in 1837, as stated by the witnesses, and that he and the defendant under him have held her and her issue ever since as their own, the plaintiffs were barred by the statute of limitations. The jury found for the defendant, and the plaintiffs appealed.
W. N. H. Smith for plaintiffs.
Ehringhaus and Heath for defendant.
There is error in the instruction upon the statute of limitations. The action is in the name of husband and wife in her right, and would survive to her. There was no adverse possession until after the death of the tenant for life, and consequently it commenced during the coverture, which still exists. By the express words in the saving in the fourth section of the statute of limitations, the feme plaintiff would have three years after being discovert to bring this suit in her own name, because she was under coverture when the cause of action arose. Of course, she is at liberty to bring suit at any time within that period, though if it be brought during the coverture her husband and she must join by reason of her want of capacity to sue alone. It is probable indeed that the action would not lie in the name of the husband and wife, for the reason that the right vested in the husband upon the death of Mrs. Sexton, as no adverse possession at that time appears. But that point is not raised, and, therefore, it may be that the facts are not stated respecting it. Consequently, the Court (151) cannot act on it; and as there was error in the instruction as given, the judgment must be reversed.
PER CURIAM. Venire de novo.