Tarkinton v. Latham, 33 N.C. 596, 11 Ired. 596 (1850)

Dec. 1850 · Supreme Court of North Carolina

33 N.C. 596, 11 Ired. 596

SALLY A. TARKINTON vs. CHARLES LATHAM, ADM’R, &c.

Where a grand father, since the act of 1806, made a parol gift of a negro ■woman slave to his grand-danghter, and placed the slave in possession of the grand-daughter’s father, with whom she lived, as her property, and the negro was always alleged by the father to belong to the granddaughter — Held, that the father, and, of course, any person claiming under him, were estopped to deny the grand-daughter’s title.

Appeal from the Superior’Court of Law of Washington County, at the Fall Term 1850, his Honor Judge Caldwell presiding.

This was an action of trover, brought to recover a negro woman, a slave, by the name of Marina, and her two children.

The plaintiff proved, that Marina was once the property of Zebulon Tarkinton, who made a parol gift ofher to his grand-daughter, the plaintiff, when she was an infant, and quite small. At the time of the gift, the slave was. delivered to the plaintiff, by the grand father’s taking the hand of Marina and placing it in the hand of the plaintiff: and, thereupon, Joseph Tarkinton, the plaintiff’s father, with whom she was living, took possession of Marina, for and on behalf of his daughter, and continued that possession, repeatedly declaring, that Marina was not his property but belonged to the plaintiff, until shortly before his death, when he sold and delivered the slave to Thomas Myers, the defendant’s intestate. The plaintiff was about 21 years of age at this trial, and was proved to have lived i# her father’s family,’till his death in the year 1S41.

Zebulon Tarkinton, the grand-father, died in the year 1834, a few years after the gift. Shortly after the death of Zebulon Tarkinton, and at the sale of his personal estate,one -Spruill, who conducted the sale and professed to be the administrator, enquired of Joseph Tar-kinton, for Marina, and demanded her of him, that he might sell her as the property of said Zebulon. Joseph Tarkinton refused to deliver her or permit her to be sold, declaring that she was the property of his daughter, and had been given to her by her grand-father, the said Zeb-ulon, and referred to the witnesses, who were present when it was done. One of the witnesses appealed to was the said Thomas Myers, who thereupon stated, that himself, and another witness, were called on to witness the gift: that the said Zebulon did give and deliver Marina to the plaintiff, for a nurse, and that Joseph Tarkinton then took possession for his daughter. Marina was not present at this sale, but was then in possession of Joseph Tarkinton, and was at his house.

It was further proved, that Joseph Tarkinton, while Marina was in his possession, claimed her for the plaintiff, declaring at some times that she was his daughter's property, at others that she was given to his daughter by her grand-father in presence of two witnesses ; and that Myers had often expressed a wish to purchase Marina, but said he could get no title as she belonged to the plaintiff.

Myers purchased Marina of Joseph Tarkinton, in the year 1841, shortly before which he remarked to a witness, “I can now try and get a good title to Mar’na, from Joe Tarkinton, for the other witness to the gift is dead, and I cannot be compelled- to swear against myself.”

No will of Zebulon Tarkinton was offered in evidence, and to show that the said --— Spruill was administrator, the plaintiff offered to prove that he took possessiott and sold the goods and effects of said Zebulon, and acted as administrator, in the settlement of his estate, and further that at the sale referred to, which was conducted by him as administrator, the said Myers became purchaser of part of the property sold. This evidence was objected to by the defendant, but the presiding Judge, reserving the question of its admissibility^, permitted the proof tobe made. It was admitted that'Myers had converted to his own use, the slave Marina, and also two children, born after his purchase from Joseph Tarkinton, and before suit.

■' It was insisted for the defendant, that the plaiutiffcould not recover, for that she acquired no title by the gift, nor had she such an adverse possession against Joseph Tar-kinton, as would transfer to her the title to the said slave.

The Court charged the jury, that, although the parol gift in the first instance conveyed no title to the plaintiff, yet if the possession of the slave in question were held by her, or by her father for her, and, upon a demand being made by the said administrator to sell said slave, her surrender was refused; and therefore she was held by the plaintiff, or by her father for her. three years adversely to the title of said administrator; the plaintiff would be entitled to recover.

. The jury returned a verdict iu favor of the plaintiff. — . Rule fora new trial for misdirection to the jury, and because of the admission of improper evidence. Rule discharged, judgment and appeal.

&'mith, for the plaintiff.

A. Moore, for the defendant,

submitted the following argument :

1st. The evidence, that Spruill acted as administrator, in order to prove that he really was, was inadmissible.— All the books on evidence lay down the rule to be, that, when an administrator sues upon a cause of action,.that arose in the life time of his intestate, he must either make, a profert of his letters of administration, or upon oyer, they must be exhibited — if he sues upon a right of action, that has accrued since the death of the intestate, the plea of the general issue makes it necessary for him to exhibit his letters, as a part of his proof.

If, therefore, Spruill was not the administrator of Zeb-ulon Tarkinton, the plaintiff very clearly has no title.— For the parol gift passed none, and no adverse possession since the death of Zebulon Tarkinton, has been held by the plaintiff, against any one who could sue.

2nd. If the evidence offered established the fact, that Spruill was the administrator of Zebulon Tarkinton, it is then insisted, on the part of the defendant, that the plaintiff has no title.

It is laid down in Story on Bail, 79-80, if A. delivers goods to B., to be delivered over to C., then C. hath the property and may demand the goods. That principle manifestly applies to such articles of personal property, the title to which passes by delivery. It cannot be applied to slaves, as our act of Assembly makes all attempts to dispose of them by gift void, unless by a deed of gift properly attested.

The gift, then, to Joseph Tarkinton, for his daughter, was a mere bailment, to continue at the will of the bailor or bailee.

Nor can the plaintiff make out her title under the Statute of Limitations. When the demand was made of Joseph Tarkinton, by Spruill, he refused to deliver up the negro, alleging that his father had given the negro to his daughter. This gave Spruill a right of action against Joseph Tarkinton, but not against the plaintiff in this action. She had no possession of the negro, and set up no claim to her, in opposition to the rights of the personal representative of Z. Tarkinton. If Spruill could maintain no action against this plaintiff, then it is clear that the Statute of Limitations did not run in her favor. And for the reason, that the action could be maintained against Joseph Tarkinton, upon his refusal to deliver the property^ the Statute then commenced running, and would confer title upon him, at the expiration of three years. A possession to be adverse need not be accompanied with a claim of title. White v. White, I Dev. & Bat. 260.

The case shows that the plaintiff never had an adverse possession of this slave.

3rd. Joseph Tarkinton was not the bailee of the plaintiff. It is a necessary part of every contract of bailment, that the article bailed should be delivered by the bailor or his authorized agent to the bailee. Story on Bail-ments 1 and 2.

4th. The plaintiff’s right to recover, then, rests entirely upon the declaration fof Joseph Tarkinton, that he held the property for her. Such a declaration cannot pass the title. Jones v. Sasser, 1 Dev. & Bat. 452.

Ruffin, C. J.

The plaintiff could have entertained this action against her fatherupon her comingof age. He could not have set up the grand-fathcr’s title against her, because he did not receive the negro to hold for the owner, who* ever that might be, but, he received her expressly as his daughter’s, and engaged to hold her as the agent of the plaintiff and for her. He could not, therefore, dispute her right, but was estopped to deny if. That estoppel was imparted to Myers, as he bought and received the slave from the father, and thus became his privy in estate; and it extends to the defendant, the administrator of Myers. The verdict and judgment, were, therefore, clear, ly right on that ground ; and as they rest upon the es-toppel, arising out of the relation of bailor and bailee, or principal and agent, between the plaintiff and her father, any particular demerits of Myers are not to be regarded, since the estoppel would affect any other purchaser from the father in the same manner.

Pek Curiam. Judgment affirmed.