
    Dowell vs. Bailey and Cochran.
    Nashville,
    December, 1837.
    Where property is loaned by a father in law to his son in law, and the latter, after retaining possession thirteen years, re-delivers it to his father in law, who bona fide retained it as his property for eight days, and then re-loaned it to his sonin law: Held, that the father in law does not forfeit his right underthe provisions of the act of 1801, to creditors and purchasers of the son in law, who became such after the second loan, unless the son m law had five years possession after the second loan Was made.
    This is an action of trover, brought by Baily and Cochran against Dowell, to recover the value of a negro slave Elias-. The bill of exceptions shows that Dowell, on the marriagé of his daughter wi.h Dawson B. Harris, made a verbal loan to them of the negro in controversy, who remained in the possession of Harris thirteen years. In 1824, Harris and his wife parted, and Harris sent the negro in controversy to Dowell, with his wife. The negro remained in possession of Dowell eight days, when Harris and his wife coming together again, Harris requested Dowell to send him the negro for a week to pick out cotton-. The negro was sent accordingly, and remained in possession of Harris two years, when Baily and Cochran purchased him from Harris for $900, and took a bill of sale which has been proved and registered. Dowell afterwards got the negro into his possession and refused to give him up.
    The court charged the jury, that to entitle the defendant to claim said negro, by virtue of the redelivery of him to Harris, he must have had three years possession of said negro after said redelivery, and that if he was redelivered to him, and remained any time short of three years, and then came to the possession of Harris, the title of a purchaser from Harris would be valid against Dowell, although made after said redelivery, and before five years bad elap'sed, from the second lending to Harris, under the áct o( 1801, c 25.
    
      R, L. Caruthers, for plaintiff in error,
    cited 5 Munford’s Rep. 101, 306, 307: 4 Mumford’s Rep. 313: Porter and Mlison vs. Armstrong and Center, 2 Yer. Rep. 74: Walker vs. Wynn, 3 Yer. Rep. 62, 73.
    
      Hubbard and JllcLain, for defendants.
   Green, J.

delivered the opinion of the court.

The charge of the judge indicates that his understanding of the operation of the act of 1801, c 25, is, that the negro having been possessed by Harris for more than five years^ became his property. For if the property were not vested in Harris, there was no reason for telling the jury that it would require a possession of the slave three years by Dow-ell, in order to give him. a title better than that of a purchaser from Harris. But this couit has decided in the case of Andrew vs. Hartsfield, 3 Yer. Rep. 40, and Walker vs. Wynn, 3 Yer. Rep. 13, that (he third section of the act of 1801, c 25, “applies only as between the lender and borrower, and saves the right of the former to reclaim and recover the property loaned.” Although, therefore, for the benefit of creditors and purchasers, if a verbal loan be made, and the borrower retain possession for five years, the property shall be deemed to be with the possession, still the borrower himself has acquired no title that he can set up against the lender.

Hence it follows, as decided by this court, in the case of Walker vs Wynn, that if the person who made the loan, regain possession and hold the property bona fid', for himself, and afterwards make another loan of the same property to the same person, he does not forfeit his right to creditors or purchasers who become such, after said second loan, unless the property be held five years by the loanee, front the date of said second loan. Nor is it required that- the owner shall have any particular length of possession, in order that his title may be thus preserved. It is sufficient if he has the property back, in his possession, holding it bona fide as his own.

The chaige of the court in this case, that Dowell must have held possession oi the negro three years, or Ins title ,, , . & ; ’ . . would not be good against the purcnaser from Harris, is erroneous. Ifeverse the judgment and remand the cause for another trial.

Judgment reversed.  