Justice v. Cobbs, 12 N.C. 469, 1 Dev. 469 (1828)

June 1828 · Supreme Court of North Carolina

12 N.C. 469, 1 Dev. 469

David Justice v. Thomas Cobbs & Sarah Jeter,

From Wake.

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.

But it seems, that such a parol gift may be ripened into an indefeasible title, by a possession of three years.

What title is necessary to enable the Plaintiff to maintain detinue, Q.u ?

Detinue for a female, slave. On the trial, the case was, that the slave liad belonged to one High, whose daughter the Plaintiff had married. Upon the marriage of the Plaintiff^ High sent the slate to his house, where she remained six or seven years, until ffie Plaintiff’s daughter intermarried with one Fallen, 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 tiie Plaintiff, or from the Plaintiff to Pullen, was produced. It appeared that High died in the year 1813, having duly made his will — but none of its provisions were given in 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 UiU]ei. d!e iU-t of 1820 (jRev. ch. 1055) and the Statute of Limitations.

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.

Gaston, Deverenx Sf W. H. Haywood, for the Defendants, contended,

1. That since the act of 1806, a parol gift transfers no title, general or special, to the donee, and therefore that Justice had not such an ¡merest as would enable him to maintain this action. For this they cited Bull. JV. P. .50. 2 StarMe’s Ev. 4 part, 493. Com. Dig. Detinue J}, and commented upon the cases of Wilbraham v. Snow, (l Mod. SO. 1 Lev. 282, S. C. l Vent. 52, S. C.) and Jlyer v. Men, CFelv. 44, Cro. J. 73, S. C. 2 Sand. 47, S. C.) which are cited by Bacon, (Detinue Ji.J and Danvers, (Detinue C. pi. 6) for the contrary, and endea-voured to prove that those cases had been misconceived.

■2. That the Plaintiff was barred by the statute of H-mitations. For this they cited Elmore v. Mills (1 Hay,. 360) Whitbeck v. Deyo (3 John. Rep. 422) Roe ex dem. of Pellatt v. Ferrare (2 B. & P, 542) IS East ¿09.

3. That no estate passed to the Defendants, to which an estoppel was annexed. For which was cited Bacon, Bailment A. Rolls’ Ab. 607.

Badger, for the Plaintiff, submitted the cause without argument.

Hah, Judge.

It is not a very easy task to lay down a general rule, to decide what special rights in property wiil 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 «as good. I concur with him too in saying, that*if it was since, drcnmstanced as this case is, Justice can sustain this action.

High, «dio was the owner of the property in dispute, died in the year 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 authorised to infer a title in Justice, which, accompanied with possession, is sufficient to support this action.

As to the statute of limitations, it can he no bar in favor of Pullen. He held the property, both in fact, and in law, under Justice. The act of 1826 declares, that “ when any person shall have put into the possession of his child any slave, &c. 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 bo ripened into title, by a continuance of three years.

But if an express parol gift was proved by 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.