
    *Phllips & als. v. Martiney’s Ex’or.
    July Term, 1853,
    Lewisburg.
    (Absent Lee, J.)
    Trover and Conversion — Case at Bar. — K the owner of a slave for life, in 1836 sells him to M, whom the same year sells him to J, who gives him to a daughter, by whom he is taken out of the state. K" dies in 1846, and then the owners of the remainder in the slave bring trover against M to recover the value of the slave. Held:
    1. Same-Right to Possession. — The plaintiff not having had the right to the possession of the slave at the time M sold him, cannot maintain this action against M.
    2. Same — Statute of Limitations. — If the sale by M gave the plaintiff a right to bring trover against M, the action was barred by the statute of limitations.
    This was an action of trover in the Circuit court of Randolph county brought in 1850 by Ely Philips and others, legatees of Richard Kittle, against the executor of William Martiney deceased, to recover the value of a slave námed Elijah. The defendant pleaded the general issue and the statute of limitations. On the trial the parties waived a jurjr and submitted the case to the court. The facts were, that Richard Kittle died in 1830, having first made his will by which he gave to his wife for her life a part of his estate, including a slave named Peg; and at her death it was to be divided among his heirs. The slave Elijah was the child of Peg born whilst she was in the possession of Mrs. Kittle. In August 1836 Mrs. Kittle sold Elijah, then about two years old, to William Martiney. In the same year Martiney sold the slave to Joseph Johnson, who gave him to his daughter: And she in the same year removed him to the state of Arkansas. *Mrs. Kittle died in 1846. The Circuit court rendered a judgment for the defendant: And the plaintiffs thereupon applied to this court for a supersedeas, which was awarded.
    Goff, for the appellants.
    Hoffman, for the appellee.
    
      
      Jitdge Lee bad decided the cause in tbe Circuit court.
    
    
      
      Trover and Conversion — Plaintiff Not Having Right to Possession. — See principal case cited in foot-note to Eastern Lunatic Asylum v. Garrett, 27 Gratt. 163; Harvey v. Epes, 13 Gratt. 170.
    
   DANIEL, J.

In this case the whole matter of law and fact was submitted to the judgment of the court below. The judge has decided against the right of the plaintiff to maintain his action; and, I think, properly. The action of trover is given to redress an injury to the right of possession. And in order to maintain the action, it is necessary for the plaintiff in the action to show that he not only has a right of property in, but also that he had a right to the immediate possession of, the thing converted, at the time of the conversion. Gordon v. Harper, 7 T. R. 9 The sale of the slave by Mrs. Kittle, the life tenant under the will of Richard Kittle, was made in 1836, and the sale by Martiney, against whose executor the suit is brought, was made in the same year: And Mrs. Kittle’s death occurred in the year 1846. Supposing the action to be founded on the sale by Martiney, either of the grounds relied on by the defendant presented a complete bar to it. The plaintiffs, at the date of the sale, had no right to the possession of the slave, and more than five years had elapsed at the time of the institution of the suit, since the date of the sale. There is nothing to connect Martiney with the subsequent removal of the slave out of the state. No action founded on the forfeiture of the life estate, under the statute, could therefore ever have been maintained against him. And even if it could, the bar of the statute of limitations would still have been insuperable, as the removal also occurred in the year 1836. 'x'The wrong committed by Martiney in undertaking

to sell a full estate or title in the slave, was a single act, fully consummated so soon as the vsale was made. Whatever remedies the plaintiffs may have had for the redress of that wrong, I think the court below has properly decided that the one selected cannot avail them. The question has been decided the same way in the case of Nations v. Hawkins, 11 Alab. R. 862, and in the case of Lewis v. Mobley, 4 Dev. and Batt. 323.

I think the judgment should be affirmed.

The other judges concurred in the opinion of Daniel, J.

Judgment affirmed.  