Call v. Ellis, 32 N.C. 250, 10 Ired. 250 (1849)

Aug. 1849 · Supreme Court of North Carolina

32 N.C. 250, 10 Ired. 250

LETHEA CALL vs. JEREMIAH B. ELLIS & AL.

An adverse possession of a slave for three years confers on the possessor a complete title to the slave.

The case of Powell v. Powell, 1 Dev. and Bat. Eq. 380, cited and approved.

Appeal from the Superior Court of Law of Rowan County, at the Fall Term 1848, his Honor Judge Moore presiding.

The following is the case sent up by the Judge below.

This was an action of trover, brought to recover damages for the conversion of a negro by the name pf Louisa. The plaintiff proved, that she had had the possession and control of the negro in controversy from the 1st day of March 1843, until she was taken off by the defendants on the 1st day of December 1846. At the time she was taken off by the defendants, she was at the house of a man by the name of Gibbs, to whom the plaintiff had hired her for two or three days to assist him in his business. After night, the defendant, went to the house of Gibbs and enquired for the girl, alleging that the defendant, March, had purchased her from the other defendant, Ellis. The negro was called up, and Gibbs stated that he would send for the plaintiff, and she would permit them to take her or not, as she might think proper. The defendants said they were in a hurry to start. Gibbs, however, sent for the plaintiff, who arrived in the course of an hour or two, but before the defendants had taken possession of the negro. When the plaintiff came, she objected to their taking her, and took the negro by the hand. The defendants took her from the plaintiff’ and carried her off. The plaintiff proved the value of the slave.

The defendants offered in evidence a bill of sale from the plaintiff to the defendant, Ellis, dated the 10th of Febuary 1841, by which the negro in controversy was conveyed by the plaintiff to the defendant, Ellis. It was proved that the negro went into the possession of Ellis, about the time of the date of the bill of sale, and continued in bis possession until the 1st of March 1843, when she went into the possession of the plaintiff. The plaintiff, from that time, either kept her working on the plantation, on which she lived, or hired her out. The day after the negro went into the possession of the plaintiff, she sent after her clothes, and Ellis delivered them up. The plaintiff also proved, that, shortly before she made the conveyance to Ellis, she owed debts to the amount of $4Q or $50, the payment of which was about to be enforced by process of law. Ellis proposed to the plaintiff’s son, that he would assume the payment of these debts, and, as a means of re imbursing himself, would hire the negro Louisa at the rate of $5 per month, until her hire amounted to enough to pay him what he should advance for the plaintiff. Shortly after this, the son of the plaintiff, hearing that Ellis had a bill of sale for Louisa, called upon him and enquired if such was the fact. Ellis stated to him, that he had no bill of sale for Louisa, but merely a strip of paper to show that he had hired her. Another witness stated, that, in the fall of 1842, or the spring of 1S43, Ellis informed him that he had not purchased, but had merely hired, Louisa, at $5 per month, and that she had nearly worked out the time — that he should like to purchase her, but could not afford to pay the price. The officers, who had for collection the claims, which the plaintiff owed, stated that in 1840 or 1841, Ellis called upon them and informed them, that he had agreed to befriend the plaintiff, and that he would assume the debts, which he had to collect from the plaintiff, provided they would allow him a little time to raise the money. Ellis promised to pay them at the ensuing County Court, and did then pay them. Another witness stated, that he lived in the family of Ellis, while he had Louisa in his possession, and, on one occasion, Ellis remarked to his wife, that he had hired Louisa and she should do what he wanted her to do.

The defendants introduced a witness, who stated, that he had a claim to collect from the plaintiff and he went with an execution, intending to make a levy upon the slave'Louisa ; that he informed the plaintiff'of his business, and enquired of her, if the defendant, Ellis, had a bill of sale for the negro. She answered that he had. This conversation took place on the 5th of December 1843. Another witness was present, who stated the conversation in nearly the same way.

It was in evidence, that the plaintiff was so illiterate as not to be able to read or write. Much evidence was offered by the plaintiff to prove, that an imposition was practised upon her, at the time she executed the bill of sale to Ellis, which it is unnecessary to state.

A motion was made to non-suit the plaintiff, because, at the time the defendants took the negro, she did not have the right of immediate possession.

The jury were instructed, that, as the witness Gibbs hired the negro by parol, it would be for them to find what were the terms of the contract of hiring. If the negro was to work only that portion of the day, that is usually employed in work, and at night return home to the plaintiff, or if they inferred from what took place, when the defendants went there to take the negro, that Gibbs surrendered the possession or the right of possession to the plaintiff', the action could be maintained. If, however, at the time the defendants took possession of the negro, the plaintiff then had not the right of immediate possession, the action could not be maintained. The Court further instructed the jury, that, though the conveyance from the plaintiff-to Ellis was valid, if the plaintiff had more than three years adverse possession of the negro, previously to the conversion by the defendants, she would be entitled to recover; and what was the character of her possession was a fact for the jury to ascertain from the evidence. The Court further instructed the jury, that, if the convey anee of the negro, though absolute on its face, was really intended by the parties to it, as a security for the money which Ellis had advanced for the plaintiff, and, after being repaid that amount, by the hire of the negro or otherwise, he surrendered her again to the plaintiff, according to the terms of their original contract, it would be evidence, from which the the jury might infer a parol sale and delivery of the negro from Ellis to the plaintiff'.

There was a verdict for the plaintiff and from the judgment thereon the defendants appealed.

Clarke and Boy den, for the plaintiff.

Osborne and Craige, lor the defendants.

Nash, J.

The instructions given to the jnry were correct, on all the points embraced in his Honor’s charge. The action was in trover for the conversion of a negro woman named Louisa. After the testimony was closed, a motion was made in behalf of the defendants,thattheplaintiff should be called, because, at the time the defendants took the negro, she, the plaintiff, did not have the right of immediate possession. In other words, that the Court should so instruct the jury. This was properly refused. Whether the plaintiff was or was not entitled to the immediate possession of the slave, depended upon the facts, to which the jury alone were competent to answer. Louisa had been hired by the plaintiff to a man by the •name of Gibbs, for a few days, at whose house she- was when the defendants came after her. Gibbs, not being willing they should take her in the absence of the plaintiff, stated, he would send for her, and she would permit them to take her or not, as she thought proper. Upon her arrival and being informed of their purpose, she refused and took Louisa by the hand. The defendants took her from the plaintiff and carried her off. The question as to the plaintiff’s right of immediate possession depended upon the fact, whether Gibbs had parted with his posse - sion. The jury were instructed, that, if the evidence satisfied them, that Gibbs had surrendered his possession to the plaintiff before the defendants took the negro, she could maintain the action. The instruction was given in answer to the motion. The hiring by Gibbs was for no definite period of time, and. if it had been, he might, with the consent of the plaintiff have put an end to the contract and surrendered the possession at any time before the expiration of the period, for which he was to have her. The Court committed no error in refusing'the motion or in the instruction given.

The jury were further instructed, that, although the conveyance from the plaintiff to the defendant, Ellis, was valid, if the plaintiff had had adverse possession of the negro for more than three years, previous to the conversion, she would be entitled to recover. Whether the plaintiff’s possession from the 1st of March 1843, to the 1st of December 1846. was adverse or not, was left to the jury, as a matter of fact. There can be no doubt of the correctness of this portion of the charge. The Statute of 1820, Rev. St. Ch. 65 Sec. IS, does not bar merely the action after three years adverse possession, but confers the title. So that such possession is not only a full answer to an action, but it is in itself a complete title to support an action, either to recover the property specifically, or damages for a conversion, or a trespass. It is similar in its operation to a seven years adverse possession of land, under color of title, under the act of 1715, except, that the possession of slaves need not be accompanied with any color of title. Powell v. Powell 1 Dev. & Bat. Eq 380.

In the last instruction no error is perceived. The bill of sale to the defendant,'Ellis, bore date in February 1841, and he remained in possession of the negro, until the 1st of March 1843, when she returned into the possession of the defendant and so remained until the 1st of December 1846, three years and nine months, working on her plantation, and, upon the application of the plaintiff, Ellis sent her clothes to her. From this fact and the others set out in the case, the jury were instructed, they were at liberty to presume a parol sale and delivery by Ellis to the plaintiff. This instruction was perhaps not necessary,-as the whole question as to the plaintiff’s title was embraced in that given upon the operation of the three years adverse possession of the plaintiff There is however no error in law in it.

Per Curiam,

Judgment affirmed.