
    McKissick et ux. vs. McKissick.
    1. A suit is not barred by a previous adjudication between the same patties and for the same property, provided the second litigation is in regard to a title acquired by complainant subsequent to the first litigation.
    2. A right is to be determined according to the law of the place where the contract was made, but the remedies for its enforcement are to be applied according to the law of the forum.
    3. A possession of slaves held by verbal gift and ownership claimed thereby is adverse, and by statute of limitations confers title in three -years in the State of Tennessee. The law is otherwise in North Carolina. The possession is there 'a bailment and is not adverse. -
    4 Where averbal gift of slaves was made in North Carolina and possession delivered to the donee and the slaves- thereupon removed to the State of Tennessee, the possession was adverse so soon as they reached the State and the statute of limitations conferred a title in three years.
    This bill was filed in the chancery court at Franklin and was heard by Chancellor Cahal on bill, answer, replication and proof, at the September term, 1845. The Chancellor gave a decree in favor of complainants and the defendant appealed.
    
      N. S. Brown, for the complainants.
    
      In this cause, complainants claim the slaves in controversy, by virtue of their deed of gift from Charles Sallard, whose right thereto had not previously been divested, by any act of his, nor barred by the statutes of limitations.
    The proof shows, that Sallard was the original owner of the property and placed the same in the possession of the defendant, in North Carolina, without any restrictions or any explanations as to the character of that possession, either verbal or written. From this, according to the act of 1806, sec. 1, of North Carolina, and the adjudications thereon, the defendant acquired no title whatever at the time, but the same continued in Sallard, unless it was lost by the statute of limitations.
    In North Carolina it has been decided, that “where a parent puts a slave into the possession of a child, without an express parol gift, this possession is not adverse and does not divest the title of the parent, or bar his action.” See Justice vs. Cobbs, 1 Dev. 469. See also Collier and wife vs. Poe, 1 Dev. Eq. 55 — Darden vs. Allen, 1 Dev. 466.
    Again: “The gift of a slave by parol operates as a bailment; and no length of possession under such gift will raise the presumption of title in the donee.” See Hill vs. Hughs, 1 Dev. and Bat. 336.
    “The possession of a slave by a donee, under a parol gift made since the act of 1806, is that of a bailee, and no length of such possession will bar the title of the donor; but if he demand possession and the donee refuse to deliver up the slave, claiming him as his own, his possession then becomes adverse to the donor, and after three years will bar his action.” See Martin vs. Harbin, 2 Dev. and Bat. 504; Powell vs. Powell, 1 Dev. and Bat. Eq. 379.
    1. What do all these authorities, applied to the facts of the case show? That the original delivery of the slaves by Sallard to the defendant, was a bailment and nothing more; and upon such, that no continued possession by the defendant could take away the rights of Sallard unless there had been a demand and refusal and an adverse claiming by defendant, of which there is no proof.
    2. Under the “act of 1806, (of North Carolina) no presumption can arise that slaves sent by á father-in-law to a son-in-law were intended as a gift — in such case it will be presumed (in the absence of proof to-the contrary) that the possession of the son-in-law was consistent with that of his father-in-law, and a possession adverse to the right of the father-in-law, cannot be presumed, from the mere fact that the son-in-law retained possession of the slave, but a loan merely will be presumed, and upon such loan, the possession thereafter is a continuation of the loan; and the act of limitations will not form a bar.” See McDonald vs. McDonald, 8 Yerg. 145.
    This case is very analagous to the one now under consideration, as it regards some of the slaves sued for. Here, there was no evidence of a parol gift; consequently the mere holding was not adverse; an actual adverse possession must be shown and it must be brought home to the original owner; nor is the case of Hardison vs. Hays an authority in point here, for there the proof showed a parol gift and a holding under it as such. In the case before us, the proof shows there was no parol gift in the first instance, and defendant never maintained any right to the property in the presence of Sallard, but frequently disclaimed any right to it.
    3. But what sort of possession under the operation of this act of 1806, with the facts before us, will be deemed adverse so as to form a bar? In the case of Porter vs. Porter, 3 Hump. 586, this court have decided that “where possession commences in obedience to the title of another, the character of that possession by intendment of law continues until changed by an assertion of ownership evinced by some tangible act in hostility to the rights of 1he owner, such as a change of the possession by a sale; the fact that the possessor told some ten or a dozen persons that he claimed the property as his own, would not be sufficient evidence of a hostile possession without notice thereof to the owner.” - In perfect character with the above, are the decisions of North Carolina, and perhaps the strongest case, is that of Hill vs. Hughs, 1 Dev. and Bat. Law. page 336. In that case, the slave in question, in the year 1810, had been placed by Hill the father-in-law, into the possession of Haynes the son-in-law, and so continued until 1834, when Hill, died; that previous to this and as early as 1823, Haynes who had all along had possession of the slave and claiming him as his own, conveyed him by deed of trust for the benefit of his creditors. But even this the court decided, was not. sufficient to bar the title of Hill; and declare “that in cases of bailment the statute of limitations did not run until the termination of that contract; that the fact that Haynes claimed and used the slave as his own would not terminate the bailment,, nor would the conveyance to the defendant'have that effect, unless accompanied with actual adverse possession for three years; and that the possession of Haynes could not. have that effect, &c.” In the case before us, there was no sale of any of the property by' the defendant, or offer to sell it — there was no “tangible act.” In'the language of the case of Porter vs. Porter, —no act in hostility and none inconsistent with the rights of Sallard. If it be urged that a suit had previously existed and terminated between the same parties about the same property, it was a suit inter alias acta, and was not notice to Sallard, and Sallard resided in North Carolina and the defendant in Tennessee-, and the last interview they had, was consistent with the legal rights of Sallard.
    4. The length of time which has elapsed, in the absence of all proof, might raise some presumption of title in the defendant, but this kind of presumption, like every other; is not conclusive and may be explained away and rebutted by proof. Proof showing the character in which the property was received, as in this case, that it was a bailment, raises the presumption against any title in the defendant, and this .must stand until overturned by proof showing the termination of the bailment and an adverse holding of three years. For according to the North Carolina decisions, “even the gift of a slave by parol operates as a bailment; and no length of possession under such gift will raise the presumption of title in the donee.” ■ See the case of Hill vs. Hughs above' cited; and this is so according-to the case of McDonald vs. McDonald, and Hoyt vs. Hardison, where there is no parol gift, but a mere naked bailment; in such case neither the doctrine of presumptions, nor the statute of limitations can apply.
    
      5. The deed of gift cannot be avoided for champerty, at least until it appears that at the time it was executed, there was an adverse holding by the defendant — such a one as would of itself defeat the title of Sallard, and end the controversy in advance. The case- in 8th Porter’s Alabama Reports, turned on this state of facts, and is not deemed authority upon the point. If the bailment still existed, there was no adverse holding, and consequently a conveyance of the slaves by Sallard could not be champertous.
    6. As to what will .terminate a bailment has been already illustrated so far as it may be done by the .acts of the bailee ■alone. But-according to the North Carolina authorities, a demand by the bailor and a refusal by the bailee to deliver the property is necessary. See Martin vs. Harbin, 2 Dev. and Bat. Law, 504. See. also the case of Powell vs. Powell, cited above. A bailment is a species of trust, and strong proof is required to show that the bailor has parted with his rights. ■ See the case of Field vs. Arrowsmith, 3 Hump. 442.
    7. If the delivery of the slaves in the first instance was a mere bailment, the burden of proof lies on the defendant, to show the termination of the bailment, and a sufficient adverse holding to give him title. This proposition is affirmative, and upon a balanced state of the proof, the defendant must fail on well settled principles.
    ' A. Wright, for the defendant.
    These slaves were conveyed to the complainants when they were adversely held. A chattel adversely held cannot be transferred so as to give the purchaser or donee a right to sue. 8 Porter Alab. Rep. 237; 2 Marshall, Ky. 136; 4 Hawks, 29; 8 Condensed C. ch. Rep. 104; 2 Mylve and Keene, 590.
    Chattels adversely held cannot be delivered, and a donation without delivery is void. 2 Gill and Johnson, 208; 1 Bailey Eq. 141; 2 Hillch. 629; 1 Krott and Michard, 592; 1 Dev. L. 309.
    As to the statute of limitations, he cited and commented on the following authorities: 4 Yerg. 104, 507; 8 Yerg. 145; 3 Pet. 6 45; Yerg. 280; 9 Yerg. 315; 10 Yerg. 3, 76; Meigs 434; 5 Hump; 91; 7 John. 254; 1 Dev. 55; 1 Dev. and Bat. 336; 2 Bat. and Dev. 504.
    The claim under Sallard is extinguished by lapse of time. Wheeler’s L. of Slavery, 74, 80,81; 6 Lett. 437; 4 Munf. 382; M. and Y. 228.
    Meigs, for complainants.
    1. This deed is not ehampertous. Story, bailments, 5282.
    2. This suit is not barred by the statute of limitations.— Hamblin vs. Alston, 1 Dev. and Bat. 479, same case and point. 2 Id. 115.
    3. Nor by the decree in the former case. The court decided in that case that the property in the three slaves was in Sallard, and not in the complainants by William McKissick’s possession for them adversely to Sallard.
    But this bill is founded on Sallard’s title now vested in complainants. So that the matter now before the court is not res judicata.
    
    4. The title is not in the defendant by gift from Sallard. This is especially shown by the case cited from 1 Dev. and Battle, 479.
    5. As to lapse of time. It is true that the lapse of a long period, during which the plaintiff has permitted the defendant quietly to enjoy the property or right 'in controversy, authorizes the presumption or inference, that the right is with the possession. Overton vs. Bigelow, 3 Yerg. 528, 529. But this presumption or inference is a parol estoppel, and in North Carolina, the act of 1806 is held to exclude every pa-rol estoppel that might be set up to defeat its operation. Alston vs. Hamblin, 2 Dev. and Bat. 115; Knight vs. Wall, 2 Dev. and Bat. 125.
    
      Fogg, for defendant.
   Green, J.

delivered the opinion of the court.

This is a bill to recover a number of negro slaves. The complainants claim by virtue of a deed of gift from Charles Sallard, dated in 1841. The complainants have prosecuted a previous suit for the same slaves, in which they asserted a right to the negroes by virtue of a verbal gift from Charles Sallard to Eleanor, the daughter of the defendant and wife of the complainant, O. McKissick. That case is reported in Meigs Rep. 427, from which it will be seen that the complainants failed to establish a title to the property; and their bill was dismissed as to the slaves now in controversy. After the decision of that cause, Charles Sallard, from whom the negroes were originally obtained by the defendant, made a deed of gift of them to the complainants. This bill is filed to set up and enforce the right the complainants claim to have derived from that deed.

Although the former suit was between the same parties, and for the same property, yet the title which is set up in the present suit did not then exist and was not adjudicated. The question is therefore open to the investigation of Charles Sal-lard’s title to those slaves. For the complainants can now only claim such title as Charles Sallard had in 1841, and which he conveyed to them.

2. It appears from this record that in 1814, the defendant, Wm. McKissick, married the daughter of Gharles Sallard of Person county, North Carolina. Soon after this marriage, Sallard put three negro slaves (from whom all the others for which this suit is brought descended) into the possession of his son-in-law, McKissick, without any express contract as to the character in which they were to be holden, and without any writing. Mrs. McKissick died in a year or two, leaving the complainant Eleanor an infant, her only child. Shortly after the death of Mrs. McKissick, Mr. Sallard and Wm. McKissick, the defendant, had a conversation about the negroes, in which Sallard said, he wished his grand-daughter, Eleanor, the daughter of defendant, to have the negroes, and if she died without heirs, McKissick should have them. Mc-Kissick said he was willing it should be so. After this conversation, Sallard says he has set up no claim to these ne-groes. In 1832, McKissick moved from North Carolina to Tennessee, where he has held and possessed these slaves until this time. There are many depositions as to the character of the defendant’s possession, and the knowledge of Sallard of a claim adverse to his title. Some of the witnesses state that the defendant professed to hold for Eleanor, and others state that he claimed to hold the negroes in his own right and as his own property. In 1833, the complainant Eleanor and the complainant Orville McKissick intermarried. In 1836, they filed their bill for the negroes now in controversy, alleging that a verbal gift had been made to Eleanor by her grand-father, Sallard. In July,1837, the deposition of Sallard was taken in that cause by the complainant, and shortly afterwards it was again taken by the defendants.

This bill was filed in 1832. Upon these facts the question is, whether after a possession, which had continued, twenty-eight years, under these circumstances, Charles Sallard, the original owner of these negroes, would be entitled to assert his right and recover them from McKissick. For the complainants have no other ground of recovery than that derivable from-Sallard’s deed of 1841.

1. It is assumed in the first place that as the transactions in relation to these slaves occurred in North .Carolina, the rights of the parties, when McKissick brought the negroes to Tennessee, were such as by the statutes and adjudications of North Carolina they would have been regarded. The correctness of this principle is not controverted. A right is to be determined according to the law of the country where the contract was made; but the remedies for its enforcement are to be applied according to the law of the forum.

2. It is next assumed that by the statute of North Carolina of 1806, a gift of slaves is void, unless it be made in wri-ing, and that by the judicial determinations in that State the donee of a slave by a verbal gift is only a bailee for the donor and does not hold the slave adversely to the title of the donor, and that when McKissick brought the slaves to Tennessee they were in his possession as Sallard’s bailee. That a verbal gift of a slave is void by the North Carolina act of 1806, is true, and it is also true that the courts of that State have held that the donee does not hold possession adversely to the title of the donor. Such gift becomes by operation of law a bailment and can be determined only as bailments by contract are determinable. As the result of these decisions the defendant acquired no title by the statute of limitations while he remained in the State of- North Carolina. And it may be conceded that after he brought the property to Tennessee, the legal rights of the parties were the same as when the negroes were in North Carolina; but so soon as the property came to Tennessee, our statute of limitations acted upon the facts as they really existed. If, in point of fact, the defendant was in adverse possession of these slaves in North Carolina — ''although the courts qf that State would adjudge such facts as constituting only a bailment — the moment he came to Tennessee our law adjudges the character of the possession according to the facts, and the statute of limitations commences running. If, in North Carolina, ■ a party ■holds possession adversely in fact, and continues the same character of possession after he comes to Tennessee, no matter what construction the North Carolina law may place upon such possession, it is competent for us to look at the facts as they really existed in North Carolina, and determine the character of the possession according to our construction. This we may do, not to determine that the North Carolina statute of limitations operated in favor of the defendant, but with a view to determine the character of his possession from the period of his arrival in Tennessee. These antecedent facts enable us to arrive at a knowledge of the true nature of the possession here. In this view of the case, there can be no doubt but that the possession of the defendant has been actually adverse to Sallard, ever since the' conversation detailed in Sallard’s deposition, which'occurred soon after the death of the mother of the complainant, Eleanor. On that occasion, if not before, Sallard made a gift of these slaves. He considered himself as having parted with all his right to them. He states in his deposition that he has set up no claim to them since that time, and he has said to others that he had given them away. This court has uniformly' held that a possession under such verbal gift, for three years, conferred a title to slaves upon the possessor. In the case of Turner vs. Grainger, 5 Hump. R. 348, the last case upon this subject, it is held that, “If in addition to delivery, there be an express gift of the property, although verbal, the possession of the donee would, from the nature of the transaction, be for himself exclusively, and the statute would commence running; and if the donor did not, by suit or otherwise, reclaim the property, the title — not by operation of the gift and delivery, indeed, but by the adverse possession and the statute — would be vested in the donee against the donor and others. The verbal gift in such a case, invalid as conferring title, would yet serve to manifest and establish the nature and character of the donee’s possession.” Our confidence in the correctness of these views is not at all shaken by the cases from North Carolina, where a different opinion prevails; and applying these principles to the facts of this case, there is no doubt but that the statute of limitations commenced running from the time the defendant came to Tennessee in 1832. For whatever doubt there may be as to whether he held possession for himself or for his daughter, Eleanor, there can be none but that he held it adversely to Sallard. If, as was alleged, in the former suit, the defendant had held the negroes in trust for Eleanor, under a verbal gift to her from her grandfather, that possession would have been adverse to Sallard’s title, and would have extinguished it. So, also, if he held for himself and not for Eleanor. In either case, the possession would have been hostile to the title now in litigation. But if it were conceded that after the defendant came to this State, he continued to hold the slaves as bailee for Sallard, up to 1806, when the complainants commenced their other suit, it can scarcely be pretended that he did not hold them adversely to all persons after that date. And this fact must have come home to the knowledge of Sallard. His deposition was twice taken in that suit, and from the character of the interrogatories and the nature of the evidence, he could not fail to know that the defendant claimed the negroes for himself; and from that period to the commencement of this suit, five years elapsed. In this view of the case, also, the ■ statute of limitations is a bar to the relief sought in this bill.

The decree must be reversed, and the bill dismissed with costs.  