
    McKisick vs. McKisick.
    Slaves. What disposition of a father to a child is a bailment or gift within the Worth Carolina act of 1806 — Limitations. If, on the marriage of a child, slaves be put by the father into his possession, without any expression of the father’s purpose therein, it is to be regarded as a bailment and not a gift under the North Carolina act of 1806. And no length of such possession will give the bailee title under the act of limitations. But, in such case, he may acquire title under that act, by afterwards assuming, with the father's knowledge, to hold them for himself; or, by the father’s treating the possession as the possession of the child, as by requesting the child to give the slaves to a grandchild : for from hence it may be inferred that the transaction was a gift at first, or that a gift had been afterwards made.
    In the year 1814, William McKisick was married to Rebecca Sallard, the daughter of Charles Sallard, of Person county, North Carolina. The day after the marriage, Mr. Sallard put in McKisick’s possession Ann a female slave, and a few months afterwards, two other slaves Murphy and Patsy. The possession of these slaves was tranferred to Mc-Kisick wfithout any condition at the time, and without any writing evidencing the manner of the transfer. Sallard had dealt with his other children in the same manner, except with two of them, to whom he made bills of sale of the slaves transferred to them. He had given McKisick less than the rest. In 18Í5 or 1816, Mrs. McKisick had a daughter, Eleanor, to whom her grandfather, Sallard, immediately afterwards, gave Sam, a slave, who, like the rest, was placed in McKisick’s possession. Mrs. McKisick soon afterwards died. McKisick remained in North Carolina about eighteen years, all the time holding possession of the negroes. Being then about to remove to Tennessee, it seems, Sallard extracted from him a promise, that he would give the slaves to Eleanor on her marriage. On his removal to Tennessee, he brought the slaves with him, and kept possession of them here as he had done in North Carolina. In October, 1833, Eleanor married Orville McKisick; but the match being disagreeable to her father, he neglected and refused to make any provision for her.
    Thereupon, about the 20th of May, 1836, a bill was filed in the chancery court at Pulaski, in the name of Orville and Eleanor McKisick, against William McKisick, in which the complainants stated that upon the death of Mrs. McKisick, the mother of complainant, Eleanor, Mr. Sallard, her grandfather, agreed that the defendant should take into his possession the three first named slaves, which then belonged to said Sallard, and that he, said defendant, should hold and keep them in his possession and use them until said Eleanor arrived at the age of twenty-one years, or married, when she was to have them and their increase. The bill charged that the gift of Sam was absolute to Eleanor, without any intermediate gift of the use of him to the defendant, in whose possession, however, he was put with the rest; that though Eleanor was married, and so the contingency had happened upon which the slaves were to be placed in her possession, yet the defendant refused to do it, or to account for the hire of Sam. The bill prayed that the negroes might be decreed to the complainants, with hire, &c.
    On the 19th of September, 1836, the defendant filed his answer, in which he detailed the circumstances of the transfer of the slaves substantially as above narrated, denying the existence of any such agreement as that supposed in the bill, i.e. that his daughter was to’have the slaves at her majority or marriage, and averring positively that the gift of the slaves was absolute and unconditional to himself, before his daughter was born.
    January, 16, 17.
    The testimony introduced into the record was quite voluminous, consisting of many depositions, detailing McKisick’s conversations, in which be said he intended to give the ne-groes to Eleanor. Amongst them were two of Mr. Sallard himself, which corresponded in substance with the statements of the answer; and from which the above narrative is principally extracted. Among the evidence was a copy of the North Carolina Act of Assembly of the 10th of December, 1806, declaring what gifts of slaves shall be valid for the prevention of frauds; and enacting that no gift thereafter to be made of any slave or slaves should be good or available either in law or equity unless made in writing, signed by the donor, and attested by at least one creditable subscribing witness; and that such gift should not be valid without probate and registration within one year after its execution, &c. &c.
    His Honor Chancellor Beamlitt heard the cause, at September Term, 1838, and being of opinion that the ne-groes had been received by the defendant upon the terms stated in the bill, decreed that he should deliver them up to the complainant; that he should account for their hire from the filing of the bill, no demand of the negroes having been proved to have been made by the complainants previous to that time. The defendnnt filed a petition for a rehearing, ■which his Honor disallowed, and the defendant appealed in error.
    Combs & Cook, for complainant
    said, by the North Carolina act of 1806, which is made a part of the record in this case, by being filed as evidence, no gift of slaves is good excepting the evidence of it be in writing, proved and registered. McDonald vs. McDonald 4" Baker, 8 Yer. 146. These authorities show, that at the time Sallard sent the negroes with his son-in-law and daughter, he did not ipso facto, part with the title, and his testimony shows that he neither parted with, nor intended to part with his title. The negroes were therefore Sallard’s at the death of his daughter, Mrs. McKisick, and he had a right to give them to his granddaughter. This he did, and McKisick agreed to be her trustee; and his possession from thence forth was the possession of Eleanor, the complainant. The rest of the negroes mentioned in the bill are the increase of the original stock.
    Goode, for the defendant
    said, if complainants recover in this case, it must be upon one of these grounds, by gift, by purchase, or by the statute of limitations; as defendant has the possession of the property, and cannot be divested of it except by a superior title in the complainants.
    Reliance cannot be placed upon a gift, nor a recovery had upon that ground, even if there were proof to establish it, because there is no allegation in the bill, except as to the boy Sam, to which such proof can apply. The bill containing the term “agreed” to express the manner in which they acquired title, if any, in the negroes, which term does not mean a gift, but a bargain, or contract, which imply a valuable consideration. Besides, the other parts of the bill exclude the idea that in the word agreed, a gift was intended to be embraced, because in a subsequent part to that above quoted, it is alledged, that the the negro boy Sam was given by Sallard to complainant Eleanor, thus plainly showing that a gift was not intended to be relied upon as to the first three negroes, and that it was designed to express a difference in the manner in which Sal-lard had been divested of title, if really the title had ever passed out of him.
    Then as to all the negroes, except Sam, the bill, if it intends to alledge or aver any conveyance from Sallard to complainants, clearly alledges a sale and not a gift. But the proof no where shows a sale, or contract to sell, or treaty upon the subject of sale, either to complainants directly, or to any person for her use, but rebuts such an idea. As Sal-lard himself says, that he never received any valuable consideration from complainants, or any person for them, nor was there any agreement or understanding by which he was to receive any thing. But, on the contrary, the proof, if it establishes any mode of conveyance from Sallard to complainant, establishes a gift and not a sale or purchase. If then the allegation in the biil is of a sale, or purchase, depositions tending to prove a gift, ought not to be allowed to be read, as it is a rule oflaw, that the evidence must apply to the facts put in issue; and that depositions will not be permitted to be read, which do not relate to some fact put in issue. 2 Mad, Ch. 438; Clarke vs. Turton, 11 Yes. 240; Whaley vs. Norton, 1 Ver. 484; Strode vs. Strode, 2 Chan. Cas. 196; James vs. McKernon, in appeal, 6 John. Rep. ¿43; S. P. Lyon vs, Tallmadge, in appeal, 14 John. Rep. 501; Underhill vs. Van Cortlandl, 2 John. Ch. Rep. 339; Smith vs. Clarke, 12 Ves. 4S0; 4 Hayw. Rep. 112; Fonb. Eq. 676, note; Cowan vs. Price, 1 Bibb, 183; Coit vs. Owen, 3 Dickens, 175.
    And if such depositions are read at the hearing, and the chancellor decides upon the evidence, though no objection be made at the time, the decree will be reversed on appeal. 6 John. Rep. 543; 14 Id. 501.
    But it is insisted, that had a gift been expressly and plainly alledged in the bill, the depositions in the case do not prove it. They merely prove what McKisick had loosely stated in conversation, to be his intentions relative to his daughter. Such conversations not authorising the deduction of a trust which equity will recognise and enforce. 6 John. Ch. Rep. 1.
    The complainants however contend, that notwithstanding the gift may be void under that act, not being in writing, yet that the evidence establishes such a holding of possession by defendant in trust for complainants, adverse to the title of Sallard, as will vest the title in the negroes in complainants, under the statute of limitations.
    In answer to this, we insist, first, that the 'evidence does not establish such an adverse possession in trust for complainants, by defendants.
    And secondly, we insist, if there was such an adverse holding by McKisick, in trust for complainants, as to entitle them to the property under the statute of limitations, if there was any allegation in the bill to which such proof was applicable, yet as there is no such allegation in the bill to which such proof was applicable, proof of that fact is not admissable, as the proof taken in a case must be pertinent to the issue. 2 John. Ch. Rep. 339.
    The complainants here occupy a situation similar to a defendant in a court of law, wishing to take advantage of the statute of limitations, where it is a well established rule, that if reliance is placed upon the statute it must be pleaded specially, 1 Ven. 191; 1 Lev. 110; although it should appear on the face of the declaration, that the cause of action did not arise within the time provided for in the statute, as it forms no defence under the general issue. 2 Saund. 63; Salk, 278; 1 Ld. Raym. 153, 838; Saund. on PI. andEv. 642-3; Fonb. Eq. 329, et seq. In this last it is stated, that the same rules are applicable relative to the statute in both courts.
    Weight & F. B. Fogg, on the same side
    said, that the complainants attempt to recover, by proving that Charles Sallard, as they insist, made a gift of these negroes to the defendant, for the use of complainant Eleanor, and that as to the boy Sam, he made a direct gift to Eleanor. They admit, that under the act of 1806, these pretended conveyances were void; but say, that the defendant has held the negroes and other property for the use of complainant so long as to give her a title by the act of limitations.
    There is no allegation in the bill, that the defendant held these negroes and other property for the use of the complainant, nor does the bill seek or attempt to make a case by operation of the act of limitations.
    1. It is a settled rule, in reference to chancery as well as law pleadings, that the proof must sustain and not depart from the case made in the bill. A party is not permitted to state one case in his bill, and make out a different one in the proof. Boone vs. Chiles, 10 Pet. 201, 208, 209; Harding vs. Handy, 11 Wheat. 103; English, et. al. vs- Foxall, 2 Pet. 595, 611, 612; Fattier vs. Hinde, 7 Pet. 270, 273, in point; Clark vs. Turton, 11 Ves. 237; Whaley vs. Norton, l Ver. 484; Smith vs. Clark, 12 Ves. 480, in point. In such a case the court will not regard the irrelevant proof.
    The complainants put their case upon an executory agreement, but the proof which they exhibit tends to show a parol gift, void in law. This is a departure. No two things could well be more distinct than a contract and a gift. The one is predicated upon a valuable consideration, the other is purely voluntary; the one may be good under the act of 1806, although in parol; the other, under that act, is void, unless in writing and attested. 2 Kent, 436; Smith, et al. vs. Yates, 1 Dev. Law Rep. 302. An agreement to convey will be specifically executed; a promise to give will not. The term (Cagreed,, is a technical term; and synonymous with contracted. There being in the bill no allegation that this agreement was ever executed, or the negroes delivered to the defendant in pursuance of it, to hold for the complainant, if the court should think the last point against us, still, inasmuch as the bill looks to a mere unexecuted agreement, the proof does not sustain the bill. 10 Pet. 208, 209, and authorities sit-pra.
    
    This view of the case is made stronger from the fact, that in reference to the negro boy Sam, the bill alledges a gift expressly, and that the boy was actually placed in the possession and use of the defendant, and has remained there ever since; also a similar allegation, in relation to the other property of a personal nature. Why this vast difference of phraseology, if the pleader did not intend a wholly different case for all the negroes, except Sam?
    4. We contend the decree is erroneous, as to all the property, because the proof does not sustain the allegations in .the bill. As to all the negroes, except Sam, the complainants not only abandon the case made in the bill, to wit, the agreement and resort to the proof of a gift, but they also depart from the gift; admit it to be void; and seek to recover upon the ground that there was no contract, no agreement or gift, but that the defendant held said negroes in possession, and for the use of the complainant, so long as to give her a title by the statute of limitations, when there is no allegation in the bill that he held said negroes in possession at all, or for the complainant. This is a departure. 10 Pet. 208, 209, and authorities supra. A.s to the boy Sam, the complainants depart from the allegation of a gift, and resort to a title acquired under the act of limitations, when there is no allegation in the bill, bow or in what character the defendant held, whether as a trustee or not, but rather the contrary, as the bill alledges, that Sam remained in the possession and use of the defendant. The acquisition of property, by the statute of limitations, is quite a different thing from a gift or purchase. A title acquired under the act, depends upon the combined operation of possession and lapse of time; and he who seeks a recovery under it, must alledge and prove the facts constituting the bar and title.
    January 21,
    2. We contend that, the form of the pleadings aside, the testimony does not sustain the decree. The act of 1806 is emphatically a statute of frauds and and perjuries; and the proof to divest the owner of his property in slaves, even upon the ground of an adverse holding, should be clear, strong, decided, and without doubt. For the decisions upon this act see Datis vs. Brooks, 3 Murph. 133; Id. 483; Cot-' ton vs. 2 Powell, Car. Law Rep. 432; 1 Dev. Law Rep. 302; Palmer vs. Faucett, 2 Id. 240.
    In North Carolina, a possession of a slave for three years, or a longer period, adverse to the true owner, bars the remedy, but does not affect the right. Skinner vs. Skinner, 3 Murph. 535. The consequence is, that the doctrine in Blan-ton vs. Coulson, 3 Hayw. 155, 356, holds; a party, therefore, may defend, but cannot assert a right as a complainant, upon the act of limitations. Hence it was necessary for the bill to alledge, and the proof to show, a holding in Tennessee adverse to Sallard, and for the use of complainant, for three years.
   Green, J.,

delivered the opinion of the court.

We are satisfied from the testimony in this'cause, that the defendant and Sallard, his late wife’s father, intended and understood their conversation, after the death of Mrs. McKis-ick, as a promise on the part of McKisick, to give the negroes to his daughter Eleanor, rather than a gift of them to her, by the old man Sallard.

Sallard himself, upon whose testimony we rely, says, that he put the negroes, Murphey, Anu and Patsey, in the possession of McKisick, shortly after his marriage to the witness’ daughter, without any condition or restriction; and that he gave Sam to Eleanor, defendant’s daughter, shortly after her birth. He states that after the death of his daughter, the wife of McKisick, they had a conversation, in which he told McKisick he wanted Eleanor to have the negroes he had put into his, McKisick’s possession, and if she should die without an heir, he wanted McKisick to have them. Mc-Kisick said he was perfectly willing to have it so. After Eleanor’s marriage to complainant, defendant promised witness that when his daughter went to housekeeping he would give her the negroes. This he failed to do, but afterwards offered to buy them from the witness.

From this statement, we do not understand the old man Sallard as having considered his gift to McKisick as void, because not made in writing, as required by the act of North Carolina of 1806; and that he, therefore, assumed to resume the ownership of the negroes, and make a new gift of them to Eleanor. On the contrary, it appears rather as the expression of his wish, that McKisick should give the negroes that had been considered as her mother’s property, to Eleanor. That McKisick so regarded it is manifest, from the fact that he promised to give the negroes, as the old man wished. He considered himself still as the owner, but was willing to gratify his father-in-law, and give the property in the way he desired.

This view of the case is no way important except to explain the character in which McKisick subsequently held possession of the negroes; for we are to presume, unless there be satisfactory evidence to the contrary, that he continued to hold in the character in which he acquired the possession. For this court has decided in the case of McDonald vs. McDonald, 8 Yer. 145, in pursuance of the North Carolina decisions upon the construction of the act of North Carolina of 1806, that the mere fact, that a father puts his child in possession of negroes, will not, no matter how long he retains that possession, give him a title to them by the statute of limitations. The reason why the statute of limitations does not run in favor of such possession is, that the property is not held adversely. The possessor is a mere bailee for the owner; and the possession is that of the owner.

As to three of the negroes now in dispute, we do not think they were ever held in fact by McKisick for his daughter. Sallard, the grandfather, did not give them to the complainant Eleanor, he only desired she should have them, and the defendant promised to give them to her. The very terms they use, that McKisick should give them, shows that the old man did not understand himself as resuming his right to control them, and then as parting with the right in favor of Eleanor. The proof of McKisick’s declaration as to Eleanor’s right to the negroes, is too loose, unsatisfactory and inconclusive, to authorise us to say that he actually held them for her, adversely to her grandfather.

We think, therefore, that as to these three negroes and their increase, Eleanor acquired no title by the statute of limitations. But as it regards the negro Sam, we are of a different opinion.

This negro was given to Eleanor when she was a child, and was placed in the possession of ner father for her. Sal-lard agreed to part with his right in favor of Eleanor, and McKisick received the negro as hers, and must be regarded as having continued so to hold him. It is absurd to say, that this was not an adverse possession to the title of the grandfather; and if so, it was the possession of Eleanor, for whom it had originally been taken, as there is no evidence to show a change of the character in which it was first held; and, indeed, as that character could not have been changed, had the defendant desired it, she being" an infant, and he her natural guardian. This possession had been held for many years in North Carolina, and for more than three years in Tennessee, before the commencement of the suit.

The complainants are therefore entitled to Sam, and to an account for his hire, from the time of Eleanor’s marriage.— McDonald vs. McDonald, 8 Yer. 145.

Reverse the decree, and decree for the complainants, as herein directed.  