
    Thomas A. Falconer, Administrator of Sarah Newsom, deceased, vs. Thomas Holland.
    In a controversy between the creditors of N. and his mother, about the ownership of slaves levied on in. the possession of N., in whose possession they had been placed by his mother, it was held, that, by placing the negroes in possession of her son, the law presumed she intended to make a gift of them to the son.
    Where a mother has placed slaves in the possession of her son, the law presumes it to be a gift, and it is incumbent on her to show that a loan only was intended, in order to rebut this legal presumption.
    In a controversy between the judgment creditors of a son and his mother, whether the possession by the son of slaves, was under a loan or a gift from his mother, the verdict of a jury that the possession was under a gift, will not be disturbed unless greatly against the preponderance of the testimony.
    In a controversy between the representatives of a mother and the creditors of her son, about the ownership of slaves, the following circumstances were held to be sufficient, in the absence of positive proof of a loan, to uphold the verdict of a jury that the possession of the son was under a gift from his mother, to wit: 1. The delivery of the negroes by the mother to the son in Mississippi, in 1837; the removal of mother and son to Tennessee, soon after the re-removal of the son alone to Mississippi, with the negroes, and keeping them till levied on for his debts, in 1841, without paying hire, or any agreement to pay hire. 2. The possession of the son being held, without any promise on his part to re-deliver, or limitation as to the length of his possession. 3. The silence of the mother, in her will, as to any disposition of these slaves, though her other property was disposed of. 4. A direction by the mother to the son to sell two of the slaves thus delivered, to pay a debt of his, upon which she was surety. 5. The failure to make out and put of record, some instrument of writing, stating the nature of the title by which the son held. 6. The failure to produce such an instrument, when one was alleged to have been made.
    It is the policy of the law, in this state, to construe all possession of property to be under the ownership of the party possessing ; and where a controversy arises, between creditors of the possessor and the alleged owner, as to whether the possession is under a gift or a loan, and the evidence is conflicting, and there is no positive documentary evidence of title in the claimant, the presumptions of law operate to regard the possession as under a gift, with all their force.
    In error, from the circuit court of Marshal] county, Hon. James M. Howry, judge.
    
      Thomas Holland recovered judgment against Yelverton T. Newsom, in the circuit court of Marshall county, on the 14th of December, 1840, for $905 64, with costs; on the 5th of April, 1841, he levied his execution on three negroes, then in the possession of Y. T. Newsom, which were claimed by Mrs. Sarah Newsom, as her property; affidavit and bond were executed according to the statute, and an issue to try the right, regularly made up. Sarah Newsom died before a trial, and the suit was revived, in the name of Thomas A. Falconer, her administrator.
    The issue was tried, and resulted in a verdict against the claimant of the negroes. That they were subject to the plaintiff’s execution, and that the claim of Falconer, as administrator, was fraudulent; the jury, also assessed the value of the property, and the court awarded judgment accordingly, with ten per cent, damages for the fraudulent claim.
    Falconer moved for a new trial, which was refused by the court; to which refusal the claimant excepted; and embodied the evidence in a bill of exceptions. From that it appears that the plaintiff in the execution read to the jury his judgment and execution, together with the levy of the sheriff upon the negroes in controversy, and his return. Jesse Davidson, for plaintiff, then testified that the negroes in controversy were in the possession of Yelverton T. Newsom, in the state of Mississippi, from some time in the latter part of the year 1838, or early part of 1839, up to the date of the levy in April, 1841 ; he could not state the exact time when Newsom came to this state with the negroes; that they were worth about $550; Nelson being worth $200, Elizabeth, $250, and Betsey, $100.
    The plaintiff then read to the jury the last will and testament of Mrs. Sarah A. Newsom, the original claimant, in which she constitutes Wilson O. Newsom and George G. Skipwith, her executors; bequeaths all her other negro property to different legatees, makes no special mention of the negroes in controversy in her will, but constitutes the children of her daughter, Mary A. Skipwith, and her son-in-law, George G. Skipwith, her residuary legatees. The plaintiff read the note of Y. T. Newsom, on which his judgment was founded, and closed his case.
    On the part of the defendant, George G. Skipwith was sworn, who stated on his voir dire that he was named executor in Mrs. Newsom’s will, but had never qualified ; that his wife was the daughter of Mrs. Newsom, and named as her residuary legatee, but he felt no interest in the suit; the court below permitted him to testify, to which the plaintiff excepted. He proved that the negroes levied on were obtained by Mrs. Newsom, as a legacy from a relative in Virginia. He knew that Y. Tv New-som obtained possession of the negroes in controversy from Mrs. Newsom, but he did not know with what understanding they were delivered to him, as he was not present. He had heard her say previously, that she intended to give Y. T. New-som the use of some negroes. The delivery took place in 1837. Mrs. Newsom lived and died in Tennessee. And Y. T. Newsom lived there until 1838, or 1839, when he came to Mississippi; that he knew that Y. T. Newsom had executed a note to his mother for the hire of the negroes, but did not know that he ever paid it.
    Wilson C. Newsom, sworn on his voir dire, stated that he was the person named as executor and legatee in the will of his mother, but he had never qualified as executor. He was objected to, but the court permitted him to testify; he proved that the negroes in controversy were the property of his mother for many years. That he delivered the negroes to Y. T. Newsom, at his mother’s request. He, (witness,) had the management of her affairs at the time; he did not live with her, but on a plantation in Mississippi, where all her negroes were, except her family servants. Y. T. Newsom took the negroes from the plantation in Mississippi, in 1837 or 1838, to Tennessee. His mother never gave any of her children negroes during her life. She sent a negro girl, on one occasion, to one of her sons in Alabama, for a nurse, but not as a gift. The other children were in easy circumstances; but Y. T. Newsom had nothing, and was in debt, when he obtained the negroes. Two other negroes were delivered to Y. T. Newsom, with those levied on in this case. These two were sold by Y. T. Newsom, pursuant to the directions of his mother, in order to raise money with which to pay off debts in Tennessee, for which she was bound as his security. She preferred to have those negroes sold, rather than dispose of her favorite family servants. Y. T. Newsom had agreed to pay his mother hire for the negroes, and came to this state in 1838, or 1839.
    Y. T. Newsom, sworn on his voir dire, stated that the ne-groes were in his possession, but he did not claim them as his own; but considered them as the property of George G. Skipwith’s daughter, by the bequest in his mother’s will. He had no understanding with any one that he was to retain possession of them, if the suit should be decided in favor of the claimant. In that event he did not know what would be done, except some arrangement were made with Skipwith. He was objected to as a witness, but the court permitted him to testify. He proved that he received the negroes in controversy from his mother; W. C. Newsom, who had the management of his mother’s affairs, giving him the possession. There was no positive agreement between himself and his mother at the time he went for the negroes, as to their being given or loaned to him; nothing was then said on that subject, but she had told him, before that time, that she intended to let him have the use of some negroes, to assist him, but that he was to have no title to them; he never received any title to them, and never claimed them as his own property. He came here from Tennessee, in January, 1839. When he received the negroes in controversy, he also received three others, two of which he sold, in 1840, by direction of his mother, to pay claims against him and her, in Tennessee, for which she was bound as his surety. He sold them, and sent her the money. She directed him to send the other to one of his brothers in Tennessee, and he did so. He had understood that one of the negroes levied on in the case, had been given by his mother to one of his sisters, before the commencement of the suit. The negroes were delivered to him in 1836; he had never executed a note to his mother for. the hire of the negroes; nor had he paid hire, or been called on by his mother, for payment of hire. He had an instrument, signed by his mother, put on record, in order that her property might not be taken to pay claims against him, and this was the only writing between them in regard to the negroes. He then expected a large claim, which he considered unjust, from Lower Mississippi, to be put in suit against him. The judgment in favor of Holland was for loaned money.
    This was all the evidence in the case.
    The court, at the request of the counsel for the claimant, charged the jury, 1st. That Newsom’s possession of the negroes in Tennessee could not be coupled with his possession in Mississippi, so as to render the negroes liable to the plaintiff’s execution, under our act of limitations. 2d. That if a gift were made of the negroes by Sarah Newsom to Y. T. Newsom, in Tennessee, such gift would be void, as between them, by the law of Tennessee, unless it was by deed, proved, or acknowledged and recorded. 3d. That the burden of proof was on the plaintiff, to show that the negroes were the property of the defendant in the execution.
    At the request of the counsel for the plaintiff in the execution: 1st. That if they believed from the testimony that Sarah New-som made a loan of the negroes levied on to Y. T. Newsom, in Tennessee, and that he held possession there for five years, and that no record was made of the transaction there, they should find for the plaintiff. 2d. That if Y. T. Newsom held the negroes in Tennessee three years adversely, claiming therfi as his own, they should find for the plaintiff
    After the verdict, and the refusal to grant a new trial, the claimant prosecuted this writ of error.
    
      William F. Stearns, for plaintiff in error.
    It is respectfully submitted, for the plaintiff in error, that the verdict of the jury was contrary to law and the evidence, and should have been set aside. The 'prima facie case of the appel-lee having been explained and rebutted by proof, showing the character of the possession of Y. T. Newsom, and its consistency with the paramount title of the claimant, the onus was thrown back upon the appellee, and it was necessary, to entitle him to recover, that he should have proved, either,
    1. That the claimant made a gift to her son, of the slaves in controversy;
    2. That he held them in this state, under an unrecorded loan, for three years before the date of the levy ;
    3. That he held them in Tennessee, under an unrecorded loan, for five years before his removal into this state; or
    4. That he held them adversely in Tennessee for three years before his removal.
    Under the charges given by the court, the jury were not warranted in finding the verdict complained of, as there was no testimony proving, or tending to prove, any of the indispensable facts above stated. As regards the first fact, no witness speaks of a gift having been made by the claimant to her son; and the mere delivery of the property to him, being explained by her declarations, will not amount to a gift. Moseley v. Williams, 5 How. 522; 3 Yerg. 60. 2d. The property, according to the testimony, was brought to this state from Tennessee in January, 1839. It was levied on in April, 1841. This is less than three years. 3d. Y. T. Newsom obtained possession of the property in 1836; took it immediately to Tennessee; and brought it here in January, 1839. This disposes of the 4th fact. The jury had before them, no testimony tending to show that the holding of Y. T. Newsom in Tennessee was adverse. He testified that he never claimed the property as his own. And even though- the jury were justified in presuming the possession in Tennessee to have been adverse, the continuance of that holding for three years, was not proven, which was absolutely necessary. Stewart v. Cheatham, 3 Yerger, 60. The possession, which commenced in 1836, may have begun in December of that year, and the. burden of proof was upon the appellee to make out title to the property in the defendant in the execution, -by showing affirmatively an adverse holding by him for three years in Tennessee.
    The terms of the claimant’s will, do not afford room for a presumption that she did not intend to claim the property; she had claimed it; she had a right to dispose of her property by a general residuary clause ; and the circumstance that she chose to exercise this clear legal right, without specifically naming the slaves in controversy, is not even suspicious.
    The verdict in this case was so manifestly unsupported by, ‘and against evidence, that it is deemed necessary only to refer to Graham on New Trials, 361 to 408, passim, for authorities to show that a new trial should be granted. The finding that the claim asserted by the claimant was fraudulent, could only have been based upon a presumption so violent and gratuitous, that it ought not, we think, to stand. Moseley v. Williams, 5 How. 520, is an authority in a case analogous to the present.
    
      Lucas, Lane and Clapp, for defendant in error.
    From the evidence in the record in this case, it is evident that the negroes belonged to Y. T. Newsom, as a gift from his mother. This conclusion is confirmed by the fact that his other relations were rich and he poor; that he kept the possession of the negroes from 1836 to 1841, and that the negroes in 1840 were valued at but $550, being young and helpless, though they had then been in possession of Y. T. Newsom for five years; to suppose that they were given to aid in the support of Y. T. Newsom and family is absurd, because they are shown to be incapable of rendering any service.
    The claim set up by claimant is colorable, and the proof contradictory. It is a family concern; the whole has been submitted to a jury, and they are competent to weigh the proof and give it its just weight. This court will not, therefore, disturb the verdict after the court below has refused to do so, unless the verdict is palpably wrong, or unless the court has erred in the law charged.
    In this case it is manifest that there is no palpable error in the conclusion drawn by the jury; and if there is any error in the opinion of the court, it is manifest that it makes for the advantage of the claimant, and is therefore no ground of reversal of the judgment of the court below.
   Mr. Chief Justice Si-iapjcey

delivered the opinion of the court.

Holland, the defendant in error, had obtained a judgment against Yelverton T. Newsom, and had his execution levied on three negroes, found in possession of the defendant in execution. The negroes were claimed by Sarah Newsom, who gave bond to try the right of property. An issue was made, but previous to the trial, Sarah Newsom died, and Falconer became the administrator, and had the suit revived. At the trial, the jury found a verdict in favor of Holland, the plaintiff in execution; and they also found that Mrs. Newsom’s claim was fraudulent. A motion was made for a new trial, which was overruled, and thereupon a bill of exceptions was taken, which sets but the evidence and the charges which were given by the court.

The single question is, did the evidence establish a gift from Mrs. Newsom to her son, of the negroes in question; or were they merely loaned to him, she still retaining the right of property. The correctness of the charges given by the court is not questioned. It is one of those cases in which we are called on to supervise the finding of the jury on the weight of the evidence only.

The plaintiff in execution proved that Yelverton T. Newsom was in possession of the negroes in this state, from the latter part of 1838, or the beginning of 1839, up to the time of the levy, in April, 1841. The will of Mrs. Newsom was introduced, by which she disposed of other negroes, but not of these.

The claimant proved by George G. Skipwith the ownership of the negroes by Mrs. Newsom, but he knew nothing of the particular terms on which they were delivered to her son. He had previously heard her say that she intended to give Y. T. Newsom the use of some negroes; they were delivered to him in 1837, in Tennessee, where the mother lived and died; the son also lived there until 1838 or 9, when he removed to Mississippi. Wilson C. Newsom testified that he had the management of his mother’s negroes, they being on a plantation in Mississippi, except her house servants. By her direction he delivered the negroes in question to his brother, who took them from the plantation to Tennessee, which he believed was in 1837 or 8. His mother had never given any of her children anything during her life. On one occasion she sent a negro girl to one of her sons in Alabama, but not as a gift. Her other children were in easy circumstances, but Y. T. Newsom had nothing, and was in debt when he received the negroes. Two other negroes were delivered wit$ these, which were sold by Y. T. Newsom, by direction of his mother, to pay debts for which she was liable as surety.

Y. T. Newsom was introduced, and testified that he had the negroes still in his possession, hut did not consider them his own. He supposed they belonged to the daughter of George G. Skipwith, under his mother’s will. There was no understanding that he should retain possession if this suit was decided in favor of the claimant, but supposed that would depend on a subsequent arrangement to he made with Skipwith. The witness also testified that there was no positive arrangement between him and his mother at the time he received the negroes, as to their being a loan or a gift; nothing was then said on that subject, hut she had told him before that time, that she intended to let him have some negroes to assist him, but that he was to have no title to them, and had never received any. He also stated that he had received three other negroes at the same time, and by his mother’s direction had sold two of them, as already stated, to pay a debt for which she was liable, and by her direction he had sent the other to one of his brothers in Tennessee. He received the negroes in 1836, and had never given a note for the hire, nor had he paid anything, or ever been called on to pay. He had an instrument signed by his mother put on record in this state, in order that her property might not be taken for his debts, and this was the only writing between them in regard to the negroes.

This was the substance of all the evidence. To make a portion of it more intelligible, it is necessary to state that the will contained a residuary clause in favor of the children of Skip-with, under which it is contended these negroes passed.

It is admitted, that the proof of possession by Y- T. Newsom for so long a period in this state, made out a prima facie case in favor of the plantiff in execution ; but this, it is said, was explained and rebutted by proof showing the character of the possession and the ownership of Mrs. Newsom, by which the onus was again thrown back upon the plaintiff in execution, and that it then became necessary for him to prove the gift, or that title had been acquired by lapse of timé. This position is not altogether supported by the state of the case.

As a general rule, the delivery of negroes or other chattel by a parent to a child on marriage, or even after marriage, will constitute in law a gift, or an advancement in consideration of marriage. Permitting a negro to go home with a child after marriage, amounts to the same thing. The law presumes that, in consideration of the relationship, a gift was intended. This principle is asserted in many adjudged cases, in some of which the circumstances tended strongly to prove that a loan only was intended. Johnson and Henderson v. Dilliard, 1 Bay’s Rep. 232; Avarmt and Wife v. Sweet, 2 Bay’s R. 528; Moore, Adm’r. v. Dawney, Adm’r. 3 Hen. & Mun. R. 127; Torrence v. Graham, 1 Dev. & Battle, 284. The necessary consequence is, that, as by placing the negroes in possession of her son, the law presumes that Mrs. Newsom intended a gift, it is incumbent on her, or those claiming under her, to negative this legal presumption by showing that a loan only was intended; it was not incumbent on the plaintiff in execution to show that a gift was intended. The prima facie case arising from mere possession is strengthened when it is shown that possession was acquired by the voluntary act of the mother. The question, then, is narrowed down to this: Has the claimant shown that his intestate only intended to make a loan of the negroes to her son ? It is certain that there is no positive proof about a loan ; the mother never said she intended to loan the negroes. The only circumstances from which a loan could be inferred are these: — Skip-with stated that he had heard Mrs. Newsom say she intended to give her son the use of some negroes, but he does not state when this declaration was made. He states, also, that he does pot know with what understanding these negroes were delivered. Wilson 0. Newsom states an additional circumstance, which may be considered entitled to some weight in remotely establishing the nature of the transaction, which is, that his mother never gave any of her children property in her lifetime. But a counteracting circumstance is also stated by the witness, which is, that all the other children were in easy circumstances. This witness had the negroes in possession and the management of his mother’s affairs, and made the delivery to his brother, but still he says nothing of the loan. The defendant in execution stated that his mother, previous to the delivery, but how long he does not say, had told him that she intended to let him have the use of some negroes to assist him, but nothing was said on this subject when he received the slaves. He also states that he had never considered them as his own. These are circumstances conducing, it is true, to show but a qualified right in the possessor, but there are counteracting circumstances of a very strong character, which should not be overlooked. Y. T. Newsom received the negroes in 1837, in Mississippi, and took them to Tennessee. He continued to reside there until 1839, as did also his mother up to the time of her death, in 1841 or 2. / In 1839, he removed with the slaves to Mississippi, without any objection being made, and continued in possession of them until 1841, without paying hire, or any agreement to pay hire. He had received them without any promise to redeliver, and without any agreement or limitation as to the length of time he should hold them. In addition to all this, the old lady, in making her will, was silent as to this property, although we must presume she intended to dispose of everything. The circumstance of her directing him to sell two of the negroes to pay a debt for which she was liable, tends strongly to show that she intended the payment to be made by him. Altogether, the circumstances which favor the idea of a loan are fully balanced by others which oppose it. The legal presumption of a gift is not satisfactorily rebutted by the claimant. This case falls far short of the case of Fitzhugh v. Anderson and others, 2 Henning & Munf. 289, in which a similar disposition of slaves was held to be a gift, notwithstanding the repeated public declarations of the father, made for the express purpose of admonishing the community that a loan only was intended. The opinion of the chancellor in that case, which was affirmed by the appellate court, is couched in language forcible and appropriate. He said, that a father putting his son in possession of slaves, and suffering him so long to retain it, and so to convert to his own use their labor and services, that the son thereby had gained a delusive credit, ought to be deemed to have given the slaves to his son, in a controversy between the father or volunteer claimants under him, and purchasers or creditors of the son, unless his possession had been by some written act, registered in a reasonable time, and in a proper office, shown to have been fiduciary, or no more than usufructuary, by some written publication in solemn form, premonishing people with whom the son should deal that he was, although the visible, not the real owner.” ■

The witness, Y. T. Newsom, says that he had an instrument signed by his mother, put on record here, in order that her property might not be taken to pay claims against him. What this instrument was, or what would have been its legal effect, we cannot know. No offer-was made to introduce it, which is a suspicious circumstance. It has been held that subsequent declarations of the donor were inadmissible to change the character of the transaction from a gift to a loan. This may have been something of that sort, but still it is somewhat strange that no offer was made to introduce it.

The statute of frauds provides that, where a loan of goods shall be pretended to have been made to any person with whom possession shall have remained for three years, without demand made and pursued by course of law, the same shall be taken as fraudulent as against creditors and purchasers of the person in possession. Newsom was not three years in this state before the levy, and not within the strict provision of the statute, but the existence of such a statute is an indication that the policy of the law abhors this equivocal possession, which may be converted into a gift or a loan, as may best suit the purposes of the parties. Where a loan is really intended, it is an easy matter to place it beyond doubt, by some instrument of writing made when possession is given, and the absence of such instrument leaves the presumptions of law to operate with all their force.

We should not omit to remark, that the parties were both domiciled in Tennessee, at the time the possession of the ne-groes was given, although the negroes were taken from a plantation in Mississippi to Tennessee. In Tennessee no gift of slaves is valid, unless it be in writing; and parol gifts pass no title, although accompanied by possession. Nuly v. Wood, 10 Yerger, 486. If it be even true, then, that no right could have been thus acquired in that state, still the question arises, was it not a gift in law for Mrs. Newsom to permit her son to bring the negroes into this state, and here to retain possession, without anything explanatory of the character of that possession ? Such must be the effect, under the circumstances of this case. This, too, was a question which was probably duly weighed by the jury, inasmuch as the court charged that such gifts were void in Tennessee, and no objection was made to the charge.

It is true that, according to our statute, we may review the evidence, and determine on the correctness of the verdict, when the refusal to grant a new trial is assigned as error; but on questions so peculiarly proper for the consideration of a jury, the verdict should not be disturbed, unless on a decided preponderance in the evidence. This is not a case of that description. The weight of evidence, indeed, seems to be on the side of the verdict.

The case of Mosely v. Williams has been cited, the facts of which are not very fully reported, yet in some of its features it resembles the present case. The principles we have asserted were there admitted, but the opinion of the court was based upon a clear case of loan fully made out. Williams had not permitted the negroes to be removed to a distance, but came to this state with his son-in-law, and the weight of evidence, direct and circumstantial, was in favor of a loan.

The judgment must be affirmed.

Clayton, J., having been counsel in the court below, gave no opinion.  