Armstrong v. Simonton's adm'r, 6 N.C. 351, 2 Mur. 351 (1818)

July 1818 · Supreme Court of North Carolina

6 N.C. 351, 2 Mur. 351

Margaret Armstrong v. Simonton’s adm’r.

From Iredell.

Tn detinue, the husband and wife must join for the slave which belonged to the wife before coverture, when the person in possession holds adversely.

But when the person has possession under a bailment from the wife made while sole, he is ,a trustee for the husband, and his possession is that of the husband, who may bring suit in his own name.

Detinue for a negro woman and her three children. — . Simonton intermarried with the daughter of the Plaintiff and removed to Georgia. Afterwards, when Simon-ton was on a visit in North-Carolina, the Plaintiff who was then a widow, gave or loaned the negro woman, then a girl to Simonton and he carried her to Georgia on his return. The testimony left it uncertain whether it was a loan or gift — declarations of Simonton were given in evidence in which lie said it ’.vas a loan, and other declarations in which he stated that if be survived Plaintiff the negro was his, and if she survived, it was hers. op ]oan# the Plaintiff intermarried with ^rnistr0ng who afterwards died before Siraonton, having taken no steps for the recovery of the negroes.

It was'left to the jury to say whether it was a gift or’ loan to SimontQn for his life with a contingent remainder to the Plaintiff, or whether it was a loan determina-Me at the will of the Plaintiff 3 if the first, then the jury was instructed that it was too remote ; and if the second then by the intermarriage of Plaintiff the property became Armstrong’s and the right was now in his executors. There was a verdict for Defendant, and the case stood on a rule to shew cause why there should not be a new trial.

Ham, Judge,

delivered the opinion of the Court:

If tiie Plaintiff’s husband had thought proper to have brought an action of detinue for the negroes in question, and it would have been necessary to have joined his wife with him in the action, it follows that as no action was brought, the property has survived to her. And it has been decided in Johnston et ux v. Pasteur, (Conf. Rep. 464,) as well as in several other cases, that it was necessary to make the wife a party, because she was the meritorious cause of action.

But we think those cases arc unlike the present, because there the Defendant hold adversely; here the Defendant claims under the bailment of the wife when sole and it seems to be admitted in the case of Johnston et ux v. Pasteur, that when the Defendant is a trustee for the husband, then the husband may bring suit in his own name,* in other words, that the possession of the bailee was the possession of the husband and tit at therefore the right of the husband was complete.