Executor of Lynch v. Ashe, 8 N.C. 338, 1 Hawks 338 (1821)

June 1821 · Supreme Court of North Carolina

8 N.C. 338, 1 Hawks 338

The executor of Lynch v. Ashe.

From Orange.

Under the act of 1784, relative to the transfer of slaves, a transfer by parol is good as between the original parties and volunteers under them, and is void only where creditors and purchasers are concerned.

Under the act of 1806, three years adverse possession of a slave only barred the remedy of the legal owner, but gave no title to the pos--sessor.

This was an action of detinue for certain slaves, tried before Daniel, Judge, in Orange Superior Court, Spring term, 1821. The Defendant pleaded non detinet, the act of 1806, and the act of limitation. It appeared on the trial, that- the father of the Plaintiff’s testator died in March 1781, and shortly after, the mother of the testator made a parol gift to him of the negro woman, for whom and whose increase the action was brought. The Plaintiff’s testator took the negro woman into his possession, but afterwards loaned her to his mother. In the year 1793, his mother intermarried with one Har-grove, an old servant in'the family of Major Strudwick. The mother, during her widowhood, always stated the slave and her children to be the property of her son, Plaintiff’s testator, as did also Hargrove after his marriage j and at one period Hargrove sent them home to Lynch, but soon after they were sent back. In the year 1804, Hargrove and his wife separated; he removed to a tract of land which he obtained from Mr. Strudwick, carrying the slaves in dispute with him. On the 10th of August 1805, Hargrove gave Mr. Strudwick a bill of sale for the slaves, and at the same time Strudwick conveyed to Hargrove an estate for life in a tract of land by deed, in which it was mentioned that Hargrove was to retain possession of the slaves during his life. In October 1805, Hargrove re-conveyed his interest in the land to Strudwick. It was proved that Strudwick had paid some small debts for Hargrove, and expressed a wish to have the use of the slaves while Hargrove lived, saying, that at his death they should go to the rightful owner. In March 1815, Hargrove died, and Plaintiff’s testator obtained possession of the slave,s, and. kept them about a month, when Strudwick again obtained possession of them. The Defendant claimed as a distributecÉfender Strudwick. Lynch died, and 1Ú3 executor brougfflwMS action within three years next after Strudwick got Tpe slaves out of the possession of Lynch.

The Court instructed the Jury, that (without deciding whether the purchaser intended to be protected by the act of 1784) was one from the donor, or might he from any person claiming under the donor) it was at least necessary to shew that Strudwick was a bona fule purchaser for a valuable consideration, that a colourable consideration v ould not destroy the Plaintiff’s title; that if They believed from the evidence that Hargrove’s possession was not an adverse possession, it availed the Defendant nothing $ and that the act of 1806 did not merge or destroy the Plaintiff’s title, although Hargrove or Strud-wick had the negroes in adverse possession upwards of three years after that act went into operation $ because Thomas Lynch, the Plaintiff’s testator, had regained the possession in 1815, and kept them in his undisturbed possession for one month, or thereabouts, at which time the title and possession were united in Lynch, and as this was in three years next before-the commencement of the action, the act of limitation did not protect the Defendant. The Jury found a verdict for the Plaintiff. A motion.for a new trial was moved for, on the ground of misdirection as to the law. The motion was overruled, and from the judgment rendered Defendant appealed.

Henderson, Judge.

I am of opinion that the law was correctly laid down by the presiding Judge, in his charge to the Jury : for, however much we may now regret that the act of 1784 was not construed as a statute of frauds, avoiding all parol gifts of slaves, as well between the' parties, as where, creditors and purchasers were concerned, it is now too firmly settled by a uniform train of decisions to be even questioned, that as between the parties* and volunteers under them, the transfer is good, and that it is void only where creditors and purchasers are cjp;erned ; nor can we adopt the expedient pressed upogpis from the bar, that we would in this casé give to tbiract what we consider to be its true construction, as there has been no decision that’a fraudulent or coloura-ble purchaser was not within the prohibition of the act. This would, to our understanding, be something like a subterfuge; the protection of the act is afforded to a purchaser on account of his merits — not his demerits; we cannot perceive the situation of a fraudulent and co-lourable purchaser to be better than that of the person from whom he purchased. Can title be strengthened by adding a fraudulent link to the chain ? it appears to me that if either is to be preferred, it is the original party ; if Strudrviel' -therefore was a fraudulent or coloura-ble purchaser, (and this fact was properly left to the Jury) he and his voluntary representatives stand in the situation of the husband Hargrove, from whom he purchas - ed, and as the parol gift, if made, was binding upon Hargrove, it is binding on the Defendant Jlshe, who is a volunteer under Strudwick. The Judge was also correct in informing the Jury, that a possession, to be aided by the statute of limitations, must be adverse; he was correct also in stating, that three years adverse possession since the act of 1806, did hot give a title, but only barred the remedy—Skinner v. Skinner, (2 Murp. Rep. 535,) and as the case of Skinner v. Skinner is mentioned, I take the opportunity of retracting an erroneous dictum which fell from me in that case. I there stated, that three years adverse possession woufd protect a Plaintiff in the action of replevin, because the Defendant became the actor in the suit: in this I was wrong. The adverse possession for three years in the Plaintiff barred the Defendant’s action, not his right, and when he in the action of replevin justified his taking under his title, it was no answer to say, that his action was barred, for the justification rested on his title, and not on his right of action : this dictum did not affect the case of Skinner v. Skinner, nor does it the present one.

By the Court. — In this case the rule for a new trial must be discharged, and judgment entered for the'Plaintiff.