
    *Clark v. Hardiman.
    October, 1830.
    (Absent Brooke, P., and Coalter, J.)
    Sale oí Slaves — Retention oí Possession by Vendor-Case at Bar. — H. makes a bill of sale of slaves to C. •without any consideration, ana notwithstanding the deed, remains in uninterrupted possession for 25 years, and dies in possession; after his death, his widow claims these slaves as her own property, and holds adversary possession of them for more than five years; then administration ofH.’s estate is committed to the sheriff, who gets possession of the slaves, and a creditor of H. who had recovered judgment against the sheriff administrator, levies an execution on one of them, which is sold so satisfy the same: in detinue by the widow against the purchaser,
    Same — Same—Same—Statute of Limitations — When It Begins to Run against Administrator. — Held, 1. that the statute of limitations did not enure to give the widow a title to the slave, since it did not begin to run till an administrator of her husband’s estate was appointed. „
    „ Same- Same — Same—Liability of Slaves to Execution at Suit of Vendor’s Creditor. — And, 2. that though H.’s bill of sale to C. was good as between the parties, yet being fraudulent as to H.’s creditors, and the subject having come to the hands ofH.’s administrator, it was liable to execution at the suit of a creditor oí H. and the levy of such execution and the sale under it may be pleaded in bar of any claim set up by C. the fraudulent grantee under the fraudulent bill of sale.
    Upon the trial of an action of detinue, brought by Sarah Hardiman against John Clark, for a slave named Charles, in the circuit court of Charles City, the jury found a special verdict, stating, in substance, the following case;
    Francis Hardiman deceased, who was the husband of the plaintiff, in the year 1790, received in right of his wife, in the distribution of her father’s estate, a parcel of slaves, of which the slave Charles was one. And in June 1794, he executed a bill of sale to William Christian, purporting, in consideration of A300. to sell and convey those slaves to him, then thirteen in number, of which Charles was one, and sundry articles of furniture, plantation utensils, and stock: this bill of sale was proved in the county court of Charles City, by one witness in December 1794, and by another in February 1796, and thereupon ordered to be recorded. No part of the. consideration expressed in the bill of sale was paid by Christian to Hardiman; and Hardiman, notwithstanding the deed, retained and held uninterrupted *possession of the whole subject. In 1803, all of the slaves mentioned in the bill of sale, were taken in execution to satisfy a debt due by Hardiman to William Christian ; when one of them was really sold to Henry Chirstian, and the proceeds applied to the debt; and the same Henry Christian purchased the slave Charles now in question, and John Christian purchased all the other slaves; but neither Henry paid any money for Charles, nor did John pay any money for the other slaves bought by him; and the slave Charles, as well as the others, were returned to the possession of Hardi-man, and remained in his possession till his death. In the year 1811, Hardiman gave Henry Christian a bond for the hire of Charles for that year. In 1812, he took the oath of insolvency, rendering a schedule of his effects, in which none of these slaves were mentioned. He died in 1816, leaving all the slaves, Charles among the rest, upon a plantation in Charles City, which he died in possession of. His family at his death, consisted of his widow, the plaintiff, and four children, who lived on the plantation, and (excepting two of the children who had since left the family) continued still to reside upon it, cultivating the land in common, and employing the slaves in the cultivation of it. But from the time of Hardiman’s death in 1816, his widow, the plaintiff, always claimed the slaves as her own property, and it was the understanding of the neighbour-hood, that she did so claim them. About the year 1817, Henry Christian claimed the slaves under the bill of sale thereof to William Christian, of June 1794 (whether he claimed under that deed, as the administrator of William, or how, was not found in the verdict), and he demanded a bond of Mrs. Hardiman for the hires of them, which she refused to give, saying that her husband had squandered all the rest of her property, and she meant to hold the slaves. It was expressly found, that Henry Christian never claimed the slaves or any of them for himself, but took the part he did in these transactions, out of friendship for Hardiman and his family. A suit had been 'x'brought by Benjamin Dadd against Hardiman in his lifetime, for debt; but, in consequence of Hardimau’s death, the process therein was not executed upon him, and the suit was not farther proceeded in till 1823, when it was revived against Benjamin Harrison, sheriff of Charles City, to whom administration of Hardiman’s estate was committed in May 1823; the estate having till then remained unrepresented. Soon after the administration was committed to the sheriff, one of his deputies took possession of the slaves left by Hardiman on his plantation at his death. Dadd prosecuted his suit to judgment against the sheriff administrator, and sued out execution, which was levied on Charles, the slave in question, who was sold to satisfy the execution: the defendant Clark was the purchaser. Mrs. Hardiman, claiming the property as her own, had forbidden the sale; and she brought this action to recover this slave from Clark. And the question referred to the court, was, Whether or no, upon the whole case, the plaintiff was entitled to recover?
    The circuit court held, that the law upon the special verdict was for the plaintiff, and gave judgment for her accordingly; from which Clark appealed to this court.
    The attorney general, for the appellant,
    said he was at a loss to discover the ground upon which the circuit court held that the appellee was entitled to recover: it seemed to him, that the law upon the case found in the special verdict, was clearly for the appellant. The bill of sale of Hardiman to William Christian of June 1794, and the sales under the execution sued out against Hardiman in 1803, in respect to the slave Charles sold to Henry Christian, and the other slaves sold to John Christian, were all, upon the face of the transactions, grossly fraudulent, and under the circumstances of the case, merely void: and Hardiman having held undisputed and uninterrupted possession, without any real claim being set up under those pretended sales, for so many years, and having died in actual possession of them, they devolved to his personal representatives: the right of *property vested in the sheriff, so soon as administration of Hardiman’s estate was committed to him, and upon his taking possession of the subject, it became assets in his hands, subject to the debts of the intestate. Neither could the statute of limitations avail to convert Mrs. Hardiman’s possession into a title, as against the administrator; because the statute did not begin to run till the estate of her husband, to which the property belonged, was represented; and the sheriff claimed and took the possession, shortly after administration of the estate was committed to him.
    Leigh, for the appellee,
    said, that supposing the bill of sale of June 1794, and the sales of the slave Charles to Henry Christian, and of the other slaves to John Christian, under the execution in 1803, were fraudulent transactions, (which not being expressly found, it is not the province of the court to infer from the facts found,) yet those sales were not, on that account, merely void: the bill of sale, and the sales under the execution in 1803, were only void as against Hardiman’s creditors, and purchasers from him; they were good as between the parties; they vested the title in the vendees, not only as against Hardiman himself, but against his executors or administrators. Neither Hardiman himself in his lifetime, nor his administrator after his death, could have claimed the property, nor defended his possession of it, against the vendees claiming under those sales, on the ground, that they were fraudulent, and the vendees as well as Hardiman parties to the fraud. See the statute of frauds and perjuries, 1 Rev. Code, ch. 101, 'i 2, p. 372, and Starke’s ex’rs v. Littlepage, 4 Rand. 368. The title then, as against Hardiman at his death, and as against his personal representatives afterwards, was in the Christians: and, as against them, Mrs. Hardiman’s adversary possession of more than five years, from her husband’s death in 1816, till the administrator took possession in 1823, gave her a good title to sustain her action of detinue. Newby’s adm’rs v. Blakey, 3 Hen. & Munf. 57;
    Elam v. *Bass’s ex’rs, 4 Munf. 301; Hudsons v. Hudson’s adm’r, 6 Munf. 352.1 The appellant claimed the slave in question, under an execution levied upon him in the hands of Hardiman’s administrator; he claimed under the administrator; and, as the administrator had no title, which he could have made good against Mrs. Hardiman, so neither had the appellant.
    
      
      Statute of Limitations. — See generally, monograpbic note on “Limitation of Actions" appended to Herrington v. Harkins, 1 Rob. 591.
      Tbe principal case was cited in Bickle v. Chrisman, 76 Va. 688.
    
   CARR, J.,

delivered the opinion of the court. The circuit court, in giving judgment for the appellee, upon the case found in the special verdict, must, I presume, have gone upon one of two grounds ; either, 1. that the possession of the widow more than five years, claiming right, gave her a title against all the world; or 2. that as the deed to William Christian, and the sale under his execution in 1803, though unquestionably fraudulent as to the creditors of Hardiman, were good between the parties and those claiming under them, the sheriff could not take the slaves, and administer them as the assets of Hardiman. As to the first of these points: the reason on which it has been decided, that five years peaceable possession of slaves gives title, is that such possession affords a complete bar under the statute of limitations. This is the language of the court in Newby’s adm’r v. Blakey, where this point was first determined ; but it is added, that this bar can only be raised in those cases where the statute runs. In this case, it is expressly found, that from the death of Hardiman to the year 1823, his estate was unrepresented. During this time, then, there was nobody in whom Hardiman’s title to the slaves vested; nobody who could demand them, or prosecute such demand ; nobody who was in default; and, consequently, nobody against whom the statute could run. No possession, therefore, during this interval, with whatever claim it might be accompanied, could give any title against the representative of Hardiman, whenever such might be appointed. Then, as to the second point, it is clear, that at Hardiman’s death, his title was good against all the world, ex-cept those '^claiming under the deed to Christian, and the sales on his execution in 1803; and these (as I have said) were palpably fraudulent as against his creditors. The sheriff, therefore, when the estate was committed to him, rightfully as to all but those claimants, took possession of these slaves. Nor could Mrs. Hardiman have maintained an action against him for them, as she, so far from claiming under the deed or sale, claimed in direct opposition to them. If, when the judgment was obtained against the sheriff as Hardiman’s administrator, and the execution delivered to the officer, these slaves had been in the adverse possession of any claimant under the deed or sale, the execution could not have been levied upon them, for the technical reason, that they would not have been, in that case, the goods and chattels of Hardiman in the hands of the sheriff to be administered. But it is clear, from the finding, that the execution was levied on the slave Charles in the possession of the sheriff as Hardiman’s representative. And this levj' the sheriff could not have prevented by any defence founded on the fraudulent deed or sale; for the creditor finding his debtor’s property in the hands of his representative, had a perfect right to take it by his execution. And this levy protects the representative of Hardiman from the claimants under the deed and sale, though, but for this, he would have held the slaves subject to their claims: for he might effectually plead this seizure and sale against such claim. This is expressly decided in the case of Hawes v. Loader, Yelv. 196, as may be seen in the 4th resolution of that case. The judgment must be reversed and entered for the appellant.  