
    *Rose’s Adm’x v. Burgess.
    April, 1839.
    Richmond.
    Detinue — Limitation of Action — Fraud—Retention of Possession of Mortgaged Property. — Certain persons having' become the sureties of an executor in his executorial bond, a deed is made by him mortgaging slaves to them, upon condition that if he shall faithfully perform in all things his office of executor, then the deed shall be void ; but the deed contains no clause providing that possession shall remain with him until default in the performance. The mortgagor, after the date of the mortgage, is in possession of the slaves for more than live years. Whereupon a creditor of his procures the slaves to be taken under execution and sold. And then, in less than five years after they are so taken, an action of detinue is brought by the mortgagees against a purchaser at the sale under the execution. Hiskd, X. the action is commenced in due time ; and 2. the fact of possession remaining with the mortgagor five years without demand made and pursued by process of law on the part of the mortgagees, does not make a case in which, under the statute of frauds, the property is taken to be with the possession, and liable to the creditors of the person in possession.
    Appellate Court — Point First Raised in. — An opinion being given by the circuit court that the action is barred by the act of limitations, the opinion is excepted to, and the bill of exceptions setting forth the evidence contains (among other things) a deed which, it is alleged in the court of appeals, shews the action to have been bronght by improper parties. ’HUM), this point, not having been made in the court below, cannot be passed upon by the appellate court.
    Scire Facias — Revival of Suit — Case at Bar. — Pending an action of detinue at the suit of four plaintiffs, one of them dies, and a scire facias is awarded to revive the action in the name of his executor: Hum), the scire facias was improvidently awarded.
    Action of detinue, commenced in the circuit court of Rappahannock on' the 15th of April 1834, by Mary S. H. Rose administratrix of Robert Rose, James S. Pickett administrator of Daniel Withers, Samuel Porter and Martin Porter, against Frances Burgess.
    The declaration contained two counts in the common form, one alleging' that the plaintiffs were possessed *of the slaves demanded, as of their own proper slaves, and delivered them to the defendant, to be again delivered to the plaintiffs when required ; the other alleging that the plaintiffs, being possessed of the slaves as of their own proper goods and chattels, casually lost the same, and they came to the possession of the defendant by finding. Plea, the general issue.
    Pending the action, Martin Porter one of the plaintiffs died, and on the motion of the surviving plaintiffs and of Lewis Porter the executor of the said Martin Porter, a writ of scire facias was awarded them to revive the suit in their names. At a subsequeni term, the scire facias being returned duly executed, and the defendant failing to shew any sufficient cause to the contrary, it was ordered that the action stand and be revived in the names of the surviving plaintiffs and of Lewis Porter executor of the deceased plaintiff Martin Porter, and be in their names proceeded in to a final judgment.
    At the trial, the plaintiffs gave in evidence a deed made the 23d of October 1821 by Jesse Withers, conveying to Mary S. H. Rose administratrix of Robert Rose, Daniel Withers, Samuel Porter and Martin Porter, several tracts of land and sundry slaves, “ upon condition nevertheless, for that whereas the said James Withers the testator of the said Daniel Withers, Robert Rose the intestate of the said Mary S. H. Rose, Samuel Porter and Martin Porter, with others, are liable as the securities of the said Jesse Withers as one of the executors of Samuel Porter deceased ; now if the said Jesse Withers shall well and truly account for all the estate real and personal, and all sums of money and assets, which have or may hereafter come to his hands as executor of the said Samuel Porter deceased, and shall pay to the devisees, legatees, distributees and creditors of the said Samuel Porter deceased all such sums of money or estate as they or any of them are entitled to*'demand or receive, and shall well and truly indemnify and save harmless the said Mary S. H. Rose administratrix of Robert Rose, and the heirs and distributees of said Robert Rose, and the said Daniel Withers executor of James Withers. and the heirs, devisees, legatees and distributees of said James Withers, and the said Samuel Porter and Martin Porter, their heirs, executors, administrators and assigns, of and from all sums of money, costs and damages which they or any or either of them may pay or be liable for on account of the securityship aforesaid, and if the said Jesse Withers shall in all things faithfully and truly perform his office of executor of Samuel Porter deceased, then these presents shall be void and of no effect.” On the back of the deed were certificates shewing that it was duly recorded on the 25tii of October 1821.
    It appeared in evidence that the plaintiffs are such of the mortgagees mentioned in the deed as are now alive, and the legal representatives of such as are dead, and that they claim the slaves mentioned in the declaration by virtue of the said deed, for the purposes therein expressed.
    The claim of the defendant was as follows : On the 30th of November 1829, a writ of fieri facias was sued out of the superior court of chancery at Fredericksburg, against the goods and chattels of Jesse Withers, for money which Frances Burgess had recovered against the said Jesse Withers executor of Samuel Porter deceased. This execution was levied by the marshal upon a part of the slaves mentioned in the deed, and the sale thereof being forbidden, the plaintiff gave an indemnifying bond: whereupon the sale was made in January 1830, and the defendant, through her agent, purchased some of the slaves and obtained possession of the same. The slaves mentioned in the declaration are the slaves of which the defendant so obtained possession, or the increase of the females thereof.
    *The circuit court instructed the jury that if they should find, from the evidence in the cause, that the said Jesse Withers after executing the deed of the 23d of October 1821, continued to hold possession of the said slaves, from the date of the said deed until they were seized and sold by the marshal, by no other title except such as may be inferred from the terms of the said deed, the statute of limitations is a bar to the recovery sought to be had in this action, and therefore they should find a verdict for the defendant, although this suit was instituted within five years after the said sale. To this opinion the plaintiffs excepted, and their bill of exceptions set forth the evidence as above stated. A verdict being found for the defendant, judgment was rendered upon the same ; and thereupon a supersedeas was awarded.
    The cause was argued in this court' by William Green and Robert E. Scott for the plaintiffs in error, andEeigh and Patton for the defendant in error.
    The counsel for the plaintiffs said, that if the proposition laid down by the judge of the circuit court be true, it must be either because the lapse of five years would enable the mortgagor himself to defeat the mortgagee’s action of detinue, under the statute 1 Rev. Code, ch. 128, § 4, p. 488 ; or because his creditors would thereby obtain a right to satisfaction out of the property, under the statute Id. ch. 101, § 2, p. 372.
    I. The provision of the statute of limitations in relation to detinue is analogous to the provision relating to a right of entry, or, in other words, to the action of ejectment. This analogy is so strong, that as the defendant in ejectment need not plead the statute, Blansh. on Eim. 170, 171 ; Clay v. Ransome, 1 Munf. 4S4, and as his possession gives him a title on which, as plaintiff, he might recover, Stokes v. Berry, 2 Salk. 421 ; Doe v. Cooke, 7 Bingh. 346, so in det-inue the defendant need *not plead the statute, Elam v. Bass’s ex’ors, 4 Munf. 301, and his possession gives him a title on which, as plaintiff, he might recover ; Newby’s adm’rs v. Blakey, 3 Hen. & Munf. 57. Now in England it is settled, and seems never to have been seriously doubted, that as between a mortgagor of real estate in possession and his mortgagee, the statute of limitations does not run, not even in regard to a term for years or chattel interest; Hatcher v. Fineaux, 1 Ld. Raym. 740 ; Hall v. Doe, 5 Barn. & Aid. 687; 1 Dow. &Ry. 340, — because, under such circumstances, the mortgagor is sometimes tenant for years, and sometimes most strongly tenant at will, to the mortgagee. Smartle v. Williams, 1 Salk. 245; Keech v. Hall, 1 Dougl. 22; Patridge v. Bere, 5 Barn. & Aid. 604, and a note at the end. Indeed the same point has been already decided, on the same reasoning, by the court of appeals in Newman v. Chapman, 2 Rand. 93. The reasoning is equally applicable to mortgages of personalty. The mortgagor of personalty, in possession of the subject, holds by the mortgagee’s consent, and not adversely to him, and may be considered in the light of a loanee, between whom and the lender the act of limitations never runs. Boyd v. Stainback, 5 Munf. 305. The argument from analogy is aided by the decision of the court of appeals in Ross v. Norvell, 1 Wash. 14, where the principles of the law of mortgages in relation to realty were applied to the redemption of mortgaged slaves held by the mortgagee after five years had elapsed.
    II. There is in the english law nothing similar to the proviso contained in 1 Rev. Code, ch. 101, § 2, p. 372. This enactment was intended to apply to the case of persons who set up a claim to property apparently belonging to the person in possession, under pretence of having lent that which before belonged to them to the person so in possession, or of having given it with certain reservations, and not to deeds of trust or mortgages *of personalty, where the party in possession is the person to whom the property originally belonged, and to whom it still belongs in equity, subject to the lien created by the mortgage or deed of trust. But if these are to be considered cases within the act, on the ground that the party holding the legal title suffers the party who has the equitable title to remain in possession, then what the act requires is sufficiently evidenced by the recording of the mortgage, which shews that the possession of the mortgagor is by virtue of the equitable title remaining in him. Unless this construction be adopted, mortgages and deeds of trust upon slaves to secure the payment of money will be inadequate securities after five years from the time of their being recorded ; contrary to the universal understanding of the country. And this idea receives confirmation from the act requiring all deeds of trust and mortgages whatsoever to be recorded. It may be said that the loan act does not apply to deeds of trust and mortgages for the payment of money, but only to a deed containing such provisions as the mortgage in this case. But it seems to defy the utmost ingenuity to take a mortgage or deed of trust for the payment of the most clearly liquidated sum, on demand, out of the statute, if it be held to apply to any mortgage or deed of trust at all, though its object be to save the mortgagee from the most complicated liability, which will require the longest time to settle. The question is not as to the simplicity of the transaction, but whether the transaction is a loan within the act; and there must necessarily be the same determination in both cases, as it is a loan in both or in neither. But, in truth, the debt secured by the mortgage or deed of trust may be payable by instalments, some of which may not be due in 20 years ; and yet, in the absence of fraud, such a deed would be good.
    For the defendant in error it was said, that this mortgage contains no provision for the mortgagor’s remaining *in possession. The right of possession of the mortgagees, as well as their legal title, was as complete immediately as at any time afterwards, and they might have brought their action of detinue against the mortgagor the day after the execution of the mortgage, as well as 13 years afterwards. Faulkner’s adm’x v. Brockenbrough, 4 Rand. 245. The right of action having existed so soon as the mortgage was made, the time began then to run, and possession from that time for five years operated to give a legal title. Newby’s adm’rs v. Blakey, 3 Hen. & Munf. 57 ; Flam v. Bass’s ex’ors, 4 Munf. 301. These cases establish that a possession of five years during which the owner had right of action, without any other evidence that the possession is adverse, will operate to give title, unless the other party shall prove that there was some agreement as to the possession, consistent with his title, which deprived him of the right to sue. In short, the possession of personal property is always presumed to be under claim of title, and adversary to all the world. This principle is affirmed by lord Fldon in Hady Arundel v. Phipps, 10 Ves. 444. The supposed analogy between the limitation of the action of detinue and of a right of entry does not exist. The nature of the subjects is essentially different. Personal chattels pass by delivery ; real estate by deed only, and in this country the deed must be recorded. Possession is prima facie evidence of title to personal estate ; no.t so as to real. A very large portion of the personal property in the country, including slaves, is held by its owners with no other evidence of ownership than the possession of it. From the nature' of the subject, then, the tenant or occupier of real estate mortgaged by himself may well be presumed to hold by permission of the mortgagee, because it would be a violent presumption to suppose that he ousted his mortgagee ; whereas, in the case of personal chattels, there is nothing in the policy of the law to require such an inference. But *even in respect to mortgages of real estate, the authorities do not sustain the proposition in the broad terms in which it is contended for on the other side. Generally the cases have been between the mortgagee and lessees of the mortgagor, without any question arising upon the lapse of time. There is, however, one case cited (Hatcher v. Fineaux, 1 Fd. Raym. 740,) in which it seems to be admitted by lord Holt that a possession of 20 years, unattended by any act recognizing the mortgagee’s continued title, would, under the statute of limitations, bar the mortgagee.
    II. If the mortgagor be a tenant at will or at sufferance, it is in effect the case of a loan, and then the question arises under the clause in the statute of frauds concerning loans.
    The general policy of this statute undoubtedly is to prevent any person in possession by permission of the real owner from holding out false colours to the world, so as to deceive creditors ; and no matter what is the form of the arrangement by which the legal owner reserves to himself the right to resume possession, and to the possessor the privilege of holding subject to that right, unless the agreement be plainly spread upon the record so as to give notice to every body, the continued possession of five years is, by the statute, conclusive proof of fraud as to creditors. In this case, the mortgage might have contained such a declaration of loan, .or permission of possession ; but there is nothing of the sort. It does not contain the provision, so common in deeds of trust and mortgages, that the grantor may remain in possession until default of payment or nonperformance of condition. And nothing less than such a clause will answer either the terms or the policy of the statute. The cases of Gay v. Mosely, 2 Munf. 543, and Garth’s ex’ors v. Barksdale, 5 Munf. 101, shew how strongly and strictly this statute has been enforced.
    *IH. The counsel for the defendant in error called the attention of the court to what they said was a clear misjoin-der of parties. The plaintiffs introduced a deed conveying a joint legal interest to Mary S. H. Rose administratrix of Robert Rose, Daniel Withers, Samuel Porter and Martin Porter. Of these grantees, Withers died before the action was brought, and the action is not by the surviving grantees alone, but by the survivors and the representative of the decedent. Moreover, upon the death of the plaintiff Martin Porter pending the action, instead of its being abated as to him and proceeded in at the suit of the surviving plaintiffs, there was a revival in the name of Martin Porter’s executor.
   STANARD, J.

I concur in the opinion that will' be delivered by the president. Upon the questions presented by the exception to the instruction given by the court below, his reasoning, I think, fully sustains his conclusions, and any thing from me would be superfluous.

I will, however, notice an objection, not taken in the court below, but urged in this, to the supposed misjoinder of the parties plaintiffs. It is' presented thus. The exception taken to the opinion of the court touching the effect of the statute of limitations on the title to the property in question, shews that the plaintiffs offered in evidence a deed of mortgage, by which the slaves sued for were conveyed to three of the plaintiffs and Daniel Withers the intestate of the other plaintiff James S. Pickett; and the defendant in error here insists that it is hence manifest the plaintiff Pickett does not claim suo jure and cannot join with the other plaintiffs, and that the court below should have entered judgment of nonsuit. This objection is not tenable. 1st, The deed of mortgage is before this court for the purpose only of presenting the question on which the court below *was called on to instruct the jury, and the matter in evidence from which that question arose. It cannot be looked to for the purpose of bringing in judgment other questions which might have been raised on it but were not, especially one incompatible with the instruction sought for by the party in whose behalf the objection is now made in this court; Newsum v. Newsum, 1 Leigh 86; Barrett v. Wills, 4 Leigh 114. 2ndly, If there was a misjoinder of parties, it v?as not the duty of the court ex officio to notice it. The nonsuit could not be entered but at the instance of the defendant, and he cannot object here that that was not done in the court below, which was not asked for by him, and which could not have been done but at his instance. 3rdly, Though this court should take cognizance of the objection, and could properly look to the deed of mortgage as the foundation of it, it ought not to sustain it. It does not appear when Daniel Withers died. If he died while the slaves were in the possession of Jesse Withers and consequently in that of the mortgagees, his representative became a tenant in common of the slaves with the surviving mortgagees, and was tenant in possession, as the possession of one joint tenant or tenant in common is the possession of all. Tenants in common may join in personal actions, and must join in a suit to recover an indivisible personal chattel. Nitt. §321; Co. Nitt. 196b, 197a. 198a. So in replevin, tenants in common must join. Buller’s N. P. S3 ; Co. Nitt. 145. An executor possessed of a personal chattel, and losing possession thereof, may sue to recover it without stating his representative character. He may sue to recover it suo jure ; and if he describes himself as executor, it may be treated' as de-scriptio persona;. There seems no stronger objection to the union of such an executor with surviving tenants in common, to recover their possession of a personal chattel, than there would be if he had become a tenant in common *by any other title. If, because one tenant in common of an indivisible chattel is an executor, he is disabled from joining in the action, then, as the other cannot sue alone for the entire thing, both would be deprived of remedy to recover the specific property.

TUCKER, P.

Upon the first question made in this case, there can be no reasonable doubt. It is contended that the demand of the plaintiff is barred by the statute of limitations ; and as the suit was commenced within five years after the seizure and sale of the slaves, the position can only be maintained on the hypothesis that the possession of Withers the mortgagor was adverse to the mortgagees. But this hypothesis is contrary to every notion of a mortgage, and of the relations of mortgagor and mortgagee. Whether the mortgage be of real or of personal property, the retaining possession by the mortgagor is never looked upon as adversary to the mortgagee. If the subject be real, he is looked upon as a tenant at sufferance, whose possession is never held adversary to his landlord : if it is personal, he retains the possession from the implied character of the transaction. It is, in its nature, but a charge — a lien or incumbrance upon the property, for the security of the payment of money, or the performance of conditions (as in this case) at a future day. Until that time, it is implied, and sometimes it is so expressed, that possession shall remain with the mortgagor. Were it otherwise, it would be the case of a pledge, not of a mortgage. Were it otherwise, the transaction might be void for failure to deliver possession, under the doctrine of Edwards v. Harben, 2 T. R. 587. But whatever doubts might exist in England as to this matter (see Ryall v. Rolle, 1 Atk. 165,) they no longer exist here. In Clayborn v. Hill, 1 Wash. 177, this court held that a mortgage of personalty, if duly recorded, was valid although the mortgagor retained possession *of the property. This decision is again recognized in Glasscock v. Batton, 6 Rand. 78. And in the case of U. States v. Hooe, 3 Cranch 73, 88, chief justice Marshall, delivering the opinion of the court, asserts the same principles. After referring to the case of Hamilton v. Russel, 1 Cranch 310, as to absolute bills of sale, he says : “But the difference is a marked one between a conveyance which purports to be absolute, and one which, from its terms, is to leave the possession in the vendor. If in the latter case the retaining of possession was evidence of fraud, no mortgage could be valid. The possession universally remains with the grantor, until the creditor becomes entitled to his money, and either chooses or is compelled to exert his right.” In Hamilton v. Russel, 1 Cranch 310, 316, he also says, “The recording acts do not comprehend absolute bills of sale among those where the title may be separated from the possession, and yet the conveyance be valid if recorded implying thereby, that a recorded mortgage of personalty would be valid though the mortgagor retained possession. All this can only be upon the supposition that the retaining of possession is consistent with the true character of the deed, and with the universal understanding that the mortgagor is to hold the possession by the permission of the creditor, until he makes default. The holding possession at the will of the creditor is then not adversary but permissive, and no protection under the statute of limitations can ever be acquired from such holding, until, by lapse of time, payment is presumed ; and when that is done, the possession is taken to be adversary from-the supposed date of payment, or a release is presumed to have been executed by the mortgagee, by reason of the discharge of the demand or the fulfilment of the stipulations.

But though, by the character oí the transaction, the mortgagor is permitted to retain possession at the will of the mortgagee, he does not stand upon the footing of '-a loanee under the statute of frauds. He holds not by loan, but, by the character of the stipulation between the parties, his original possession remains undisturbed. No creditor or purchaser is deceived or defrauded. It is the duty of the party who would trust the mortgagor on the credit of the property thus left in his possession, to look to the record ; andtliere he would see, not indeed a recorded loan, bnt a recorded mortgage of the property itself. I am of opinion, therefore, that the second point made in the causéis unsustained, and that the defendant is not more protected by the statute of frauds than by the statute of limitations.

Lastly, it is objected that in this case thei e is a misjoinder of persons claiming in their representative character, with others claiming suo jure. Whether the fact be so or not is matter of doubt, as the words indicating the representative character have been possibly used merely as descriptio persons:. If we could refer to the mortgage upon this point (which I doubt) we should find indeed that the executor of one of the mortgagees is plaintiff. But still, as the point was not made in the court below, and as the objection may be more properly made upon the subsequent trial, if the exhibition of the title shall sustain it, I do not think we can notice it here. It would conflict with the principle settled in Newsum v. Newsum, 1 Leigh 86, and Barrett v. Wills, 4 Leigh 114.

There is however, I think, one error in the proceedings, which this court should correct. It is the revival of the proceedings in the name of Lewis Porter. The law on this subject I take to be, that if the parties were joint tenants, the remedy survived, though under our statute the right did not (see Low on Partn. 172, 173, 174) ; and so the cause ought to proceed in the name of the survivors. And as to tenants in common, they may and must join in an action for the recovery of an indivisible subject, 3 Bac. Abr. 70S, but if one dies, the *remedy survives ; Co. Lit t. 189a. And this from necessity ; for the executor of the decedent cannot join with the survivors, since the plaintiffs would then claim by several rights and titles, and if they failed, the judgment against them would be several. Moreover, the subject of the action being one and indivisible, the wrong is of course a joint wrong, and the remedy is therefore joint and consequently survives. The scire facias then was improvidently awarded, and should be set aside, together with the proceedings thereupon.

Judgment reversed with costs, verdict set aside, and cause remanded for a new trial, “on which the instruction given on the former tidal is not to be repeated.” And order awarding scire facias, and all the proceedings thereon, set aside, and scire facias quashed.  