Mardre v. Leigh, 16 N.C. 360, 1 Dev. Eq. 360 (1830)

June 1830 · Supreme Court of North Carolina

16 N.C. 360, 1 Dev. Eq. 360

John Mardre et al. v. Richard Leigh et al.

From Perquimons.

Where the Plaintiff charged that the Defendant held slaves as his trustee, and prayed an account of the profits, and that the posses, sion might be surrendered to him, and the Defendant denied the trust, and insisted that he had held possession twenty.six years adversely to the right of the Plaintiff, and there was no proof of the trust— held, even if the Court had jurisdiction for a discovery or an account, that as the possession of the Defendant was a bar to aw action at law — -by analogy, it was a bár to the relief.

This was an appeal from a decree dismissing the bill, pronounced in the Court below, by his Honor Judge Man*um„ The hill charged that the Defendant heigk intermarried with Charlotte Spruill, in 1794, and that 1795, her father Hezekiah Spruill placed in Leigh's ¡tes-session a female slave, named Esther, in trust, for such of Leigh’s children, as Spruill should afterwards nomi-cate as donees by his will — that Mrs. Leigh died before her father, who made his will in 1802, and died; and that by tiie will, the negro and her increase were bequeathed to Leigh’s four daughters, Elizabeth, Charlotte» Sarah and Louisa, with cross remainders between them, upon the death of either under age and without leaving issue : that the Defendant and his children resided together, and that he kept the negroes for their use, until the marriage of the daughters Sarah and Louisa, in 1825, when he refused to deliver them over: that Elizabeth died in 1805, at ten years of age: that Louisa and Sarah died covert in 1827, and that the Plaintiffs, their surviving husbands, had obtained administration of their estates : that tlse other daughter, Charlotte, intermarried with Ephraim Mann, in 1826. The bill was filed in 1828, against Leigh and Mann and his wife, for Esther and her increase. The Defendant, in his answer, admitted his marriage in December, 1794, and that, Esther was put into his possession by his father-in-law in February, 1795, when the negro was sent home with his wife. He denies positively, that it was upon any trust or express loan ; and says, nothing was said of the terms, from which he concluded, that it was an advancement to his wife. He averred, that nothing to the contrary was said during Spruill’s life; and that the first intimation he had, that the gift to him w as not considered by Ids father-in-law as absolute, was in the will : that nevertheless he, the Defendant, claimed the property absolutely, and made that claim known to hie daughters, and to Spruill’s executor, and in the neighbourhood generally : that the executor never made any demand, nor did his daughters, though each of them was more than twenty-four years 44 at h*r wtriss?’ * ?n<? !t£* r«lM upon his advetiw pos-' session, and the statute of limitations, as against the .eX{»n,t0E.g an(] h¡s daughter.?;

The proof fully sustained the Defendant as to the pe» rind of his acquiring the possession, and its nature. Many witnesses proved clearly, that he asserted in his family and the neighbourhood, for more than thirty years, his ownership | and that his daughters were all of the ages stated in the answer, at the. time of their marriage. A single witness deposed, that the negro was originally" lent. She was a daughter of the testator Spruill. She did not say, that she heard any thing pass between her father and the Defendant, on the subject of this negro. But she oflen heard her father say, that he never would give his children any property during his own life ; and that she had heard Leigh say, shortly after his wife died, that the negro was lent to him. There was no testimony to the particular trust alleged in the bill^ viz. that the Defendant had kept the negroes for his daughters.

The case was argued by Kinney for the Plaintiffs, and by Hogg for the Defendants.

rUFFIN, Judge.

— I need not refer to the cases which establish the principle, that when a father, before 1806, put into the possession of his child upon marriage, a slave, it was a gift, unless the. contrary expressly appear. They are numerous and familiar. Upon the face of this case therefore, there was a gift. It is insisted, however, that the contrary is expressly proved here. That proof is by no means satisfactory. It does not go to any specific terms, upon which the possession was gained, as coming directly within the knowledge of the witness at the time. It is only by inference from the general declarations' of the father, and from those of Leigh. made shortly after his wife died. The former are not competent to determine the character of the transaction. The latter might be easily misunderstood. It is extremely probable, that the Defendant might have. said. that he considered the negroes bis childrens?. As they same by their mother, he might, irs conscience, heve felt bound to bestow them upon her is^ue, in preference to any others he might have by a subsequent marriage. In that sense, he might have made the declaration proved, Ills answer cannot, therefore, be overruled by a single witness, whose testimony is oí so uncertain a* character,, But it is insisted, that she. is supported by the answer .* because Leigh does not swear to an express gift. My inference is directly the contrary. The answer states what is in law a gift j and denies an express loan. This is touch stronger with me, that! if the Defendant had stated syj express gift, it argues, that he, has told the exact truth. If he had not, he would, at once, have come out with such a gift. The material part is the denial of the loan, which is positive. Upon the proofs therefore, there was a gift to the Defendant.

But if this were not so, and the negro was loaned, and not given, yet the Plaintiff could not get a decree. The particular trust alleged wholly fails, upon the evidence. We hear nothing of it, but in the bill. Taking it t s be a loan by Spruill indefinitely, there is relief at law, by an action of detinue by the executor j or if lie assented to the legacy, by the daughters. But if this Court could take jurisdiction, upon any principle of discovery or pro fits, the character of the Defendant’s possession, being expressly adverse to the executors and legatees of Spruill for twenty-six years, would bar the action at law, and so, by analogy, bars relief in this Court.

Per Curiam. —

Let the decrea below he affirmed.