
    *Layne v. Norris’ Adm’r.
    April Term, 1861,
    Richmond.
    i. Pleading and Practice — Detinue—Unnecessary to Plead Statute of Limitations.—In an action to recover property, if the defendant has been in adversary possession a sufficient length of time to render the statute of limitations a bar to the action, this possession gives title; and it is not necessary to plead the statute.
    3. Statutes—Interpretation of.—A slave in the possession of a life tenant, which is neither employed in making a crop, nor let or hired to another, is not embraced in either of §§ 53 or 55, 1 Rev. Code of 1819, p. 388, so as to entitle the administrator of the life tenant dying after the 1st of March, to retain the slave to the end of the year.
    3. Adverse Possession of Chattel—When Statute Begins to Run against Remainderman.—A life tenant of a slave sells her life interest and dies. The purchaser continuing to hold the slave, does not hold under, but adversely to the remainderman, and the statute commences to run on the death of the life tenant.
    
      4. Special Verdicts—Adversary Possession -Case at Bar.—A special verdict which finds uninterrupted possession of a slave by the purchaser from a life tenant of her interest in the slave, for more than the time which will create the bar of the statute, without finding anything from which it may be inferred that he held by authority of the remainderman or his representative, finds in effect an adversary possession.
    5. Same—Same—Legal inference.—When a special verdict finds personal property in possession of a defendant, the law infers it to be adversary, in the absence of any finding to the contrary.
    This was an action of detinue in the Circuit court of Amherst county, brought to the spring term of the court for 1855 by Poindexter P. Smith, administrator of Robert T. Norris deceased, against George Layne, to recover a slave named Vina. Upon the trial the jury found *a special verdict, and the facts so far as is necessary to show the grounds of this court’s decision are as follows :
    Daniel Norris of the county of Nelson died in November 1824, having first made his will which was duly admitted to probate in the County court; and Christopher T. Estes qualified as executor thereof. The testator left a widow, Constance P. Norris, and Robert P. Norris, his only child, an infant under twenty-one years of age.—By his will Daniel Norris left a woman named Eranky to his widow for her life; and directed that she should then be free; and that the widow should be decently maintained during her life or widowhood.
    A few days after the qualification of the executor, he placed in the possession of Mrs. Norris, Franky and another slave Judith who had been left to Mrs. Norris until she attained the age of twenty-one years, and the four small children of Franky, for whose support the executor was to pay her.
    In October 1825 Mrs. Norris renounced the provision made for her by the will of her husband; but the estate was not divided, and dower was not assigned to her; and she continued to hold the women put into her possession; and the executor allowed her to have other slaves of the estate from time to time, and furnished her with other aid for her support. She held the slave Franky in her possession from. February 1825 until 1833 or 1834, when she sold her life estate in her to the defendant George Fayne, and delivered her into his possession. The defendant by virtue of the sale and purchase continued in possession of Franky until the ■death of Mrs. Norris. After the purchase and before the death of Mrs. Norris, viz: in 1835, Franky became the mother of the slave Vina in the declaration mentioned; and Fayne has held uninterrupted possession of Vina from the date of her birth in 1835, until the institution of this suit.
    *The jury find that Mrs. Norris died in June 1839; that Robert T. Norris came of age some time in the year 1831; and died on the 21st of October, 1839, leaving a widow, and an infant daughter who intermarried with the plaintiff Smith in 1850, and attained the age of twenty-one years in 1851. The plaintiff qualified as administrator of Robert T. Norris on the 21st of June, 1852, up to which time the estate of Robert T.- Norris had remained without a personal representative.
    ■ The Circuit court rendered a judgment upon this verdict in favor of the plaintiff; and thereupon Fayne applied to this court for a supersedeas to the judgment; which was awarded.
    Garland, for the appellant, insisted, that Fayne’s possession of the slave Vina was adversary from her birth, or at least from the death of Mrs. Norris in June 1839; and therefore plaintiff’s right to recover was barred.—Spotswood v. Dandridge, 4 Hen. & Munf. 139; Newby’s adm’r v. Blakey, 3 Id. 57; Elam v. Bass’s ex’ors, 4 Munf. 301; Garland v. Enos, 4 Id. 504; Brent v. Chapman, 5 Cranch’s R. 358; Shelby v. Guy, 11 Wheat. R. 361; 1 Rob. Pr. new edi. 506, 507; Gay v. Moseley, 2 Munf. 543; Lacy v. Wilson, 3 Id. 313; Thomas v. Soper, 5 Id. 28; Garth’s ex’or v. Barksdale, Id. 101; Givens v. Mann, 6 Id. 191.
    Macfarland and Roberts, for the appellee, insisted, that Mrs. Norris having died after March 1839, her representative was entitled to keep the slave until the end of the year; and Robert T. Norris having died in October of the same year, he was not entitled to the possession at any time during his life. And as there was no representative of his estate until the plaintiff qualified in 1852 the time did not begin to run until that qualification. They relied on 1 Rev. Code of 1819, ch. 104, \ 53, 55, p. 388.
    *They insisted further that Fayne having taken possession rightfully
    under his purchase from Mrs. Norris of her life estate, his continuing to hold after her death was not adversary, until he did some act denying the title of the remainderman. Kitty v. Fitzhugh, 4 Rand. 600 ; Cross v. Cross’ adm’r, 9 Leigh 245; Carr’s adm’rs v. Glasscock’s adm’r, 3 Gratt. 343; Roberts v. King, 10 Gratt. 184. That here no such act was done; and the special verdiet does not find. that the possession was adversary; and the court will presume it was not. Purcell v. Wilson, 4 Gratt. 16; Williams v. Snidow, 4 Leigh 14.
    
      
      Adverse Possession—When Statute Begins to Run against Remainderman.—In Clarkson v. Booth, 17 Gratt. 499, the court said: “To be sure if tile life tenant, or the assignee of the life tenant (who by the assignment becomes a tenant per auter vie), holds, uses and enjoys the property as his own after the termination of the life estate, such possession becomes adverse to the remaindermen and is a wrongful conversion of their property to his use, from the time of which conversion the act of limitations will begin to run against them; as was held by this court in Layne v. Norris’ Adm’r, 16 Gratt. 236.” See also, Hannon v. Hounihan, 85 Va. 438, 12 S. E. Rep. 157.
    
   MONCURF, J-,

delivered the opinion of the court:

This is a supersedeas to a judgment in favor of the plaintiff on a special verdict, in an action of detinue brought by Robert T. Norris’s adm’r against George Fayne for a slave named Vina.

The most favorable view which can be taken of the case for the plaintiff, is to suppose that his intestate Robert T. Norris was entitled to the slave in controversy in remainder at the death of his mother Mrs. Norris, to wit: on the 21st of June, 1839. Supposing him to have then become entitled to the possession of the slave, the only question is, whether he and his personal representative continued to be so entitled for sixteen years thereafter, and until the institution of the action, in July 1855?

At the death of Mrs. Norris, the defendant Fayne, who had purchased her life estate in Franky, the mother of Vina, who was born after the purchase, was in possession of Vina, 1 and has ever since remained in such possession. The action of the remainderman Robert T. Norris then accrued, and not having been instituted for more than five years thereafter, it would have been barred by the *act of limitations, if it had been pleaded. And wherever the act of limitations would be a bar to an action for property, it gives to the defendant such a title to the property as enables him to maintain his defence under the general issue, and would even enable him to maintain an action for the property. 1 Rob. Pr. (new) 506, citing 3 H. & M. 57; 4 Id. 139; 4 Munf. 301; Id. 504; 5 Cranch 358; 11 Wheat. 371.

But it was contended by the counsel for Robert T. Norris’s adm’r, that Mrs. Norris, the life tenant, having died after the 1st day of March, to wit: on the 21st day of June 1839, her assignee Fayne was entitled to the possession of Vina until the end of the year 1839, under sections 53 and 55, or one of them, of ch. 104, 1 R. C. 1819, _p. 388. And that Robert T. Norris having died before the end of the year, to wit: on the 21st of October 1839, and having no personal representative until within five years before the action was instituted, it would not have been barred by the act of limitations, and therefore the defendant did not acquire title to the property b3’’ his possession thereof.

The answer to this argument is, that the case falls under neither of the categories created by these two sections. The 53d section applies to slaves employed in making a crop; the 55th, to slaves let or hired to another. The slave in controversy was, at the death of Mrs. Norris, neither “employed in making a crop,” nor “let or hired to another. ’ ’

It was further contended that a particular tenant who continues to hold the property after the expiration of the particular estate, if not regarded as a fiduciary in reference to the remainderman, will yet not be considered as holding adversely to him, at least until after demand made, or the lapse of a reasonable time for the delivery of the property; and therefore that the defendant did not hold the slave Vina adversely to Robert T. Norris *at the time of his death, which was only four mouths after that of his mother. So that, in that view, the action, having been brought within five years after the qualification of a personal representative of Robert T. Norris, was brought in due time.

There is no fiduciary relation between the particular tenant and remainderman after the termination of the particular estate. And if the particular tenant continues to hold and enjoy the property thereafter, he will be considered as holding it adversely to the remainderman unless it be shown affirmatively that he holds it by his authority or permission. He will not be considered as tenant at will or at sufferance of the remainderman, but is like any other person who wrongfully holds and enjoys the property of another. His case is very different from that of a lessee, holding over after the expiration of the lease; in which case, the law implies a tenancy from year to year, on the terms of the lease, as being consonant alike to the justice of the case and the presumed intention of the parties. In the case of a particular tenant holding over after the right of possession of the remainderman accrues, there is no foundation, in any prior contract of the parties, for such an implication.

Hastly it was contended that the possession of the defendant should have been expressly found in the special verdict to have been adverse to the title of the plaintiff, and cannot be inferred to have been so from the facts therein found.

Such adverse possession is, in effect, found in the special verdict. It expressly finds that the defendant “held uninterrupted possession of the slave in controversy from the date of her birth in 1835 until the institution of the suit,” which was in 1855; and it does not find that such possession was by authority or permission of the plaintiff or his intestate, nor any fact from which such authority or permission can, however remotely, be inferred. ^According to the facts found, the law of the case is for the defendant; and certainly the court will not presume the existence of other facts not found which would make the law of the case otherwise. It will rather presume, in favor of the verdict, that all the material facts of the case were therein found. Possession is the indicium of title to personal property, and when found by a special verdict to be in a defendant, the law infers it to be adverse, in the absence of any finding to the contrary. Although it is an inflexible rule that the court upon a special verdict cannot infer other facts from those found, yet it is the province of the court to make all legal inferences from the facts found in the verdict. 1 Rob. Pr. (old) 373 and cases cited; 3 Munf. 1; 5 Leigh 615; 4 Id. 37; 11 Id. 281; 4 Gratt. 16. The cases relied on in the argument to show that the possession of the defendant must be found in the verdict to be adverse or will not be inferred by the court to be so, are not in conflict with the principle as above laid down. Williams v. Snidow, 4 Leigh 14, and Purcell, &c. v. Wilson, 4 Gratt. 16, were referred to. Both of these cases were writs of right, and according to the facts found in each, the possession of the defendant was clearly not adverse. In the former, an executory contract for the sale of land was rescinded by mutual consent of parties, and while the vendee remained in possession thereafter, without paying any rent and without pretence of title, the original vendor conveyed the land to the intermediate vendor, and the question was, whether the deed operated to pass the legal title to the land; in other words, whether such possession was adversary to the grantor; and the court held that it was not. The latter, was an action brought by one coparcener against another or the assignee of another, and the possession of the defendant was held not to be adverse, the verdict not having found an actual disseisin or ouster *of the demandant nor facts which in law constitute such actual disseisin or ouster. See also Pownal v. Taylor, 10 Heigh 172, which admits of a similar explanation.

These cases depend on this principle ; that a possession not adversary in its commencement will be presumed not to be adversary in its continuance, unless and until the presumption be repelled by proof that the party in possession claimed to hold adversely to the other party and with his knowledge. But the principle does not apply to this case. Here the possession of the defendant was adversary in its commencement ; that is after the right of possession of the remainderman accrued. Until then the defendant held under his own title, and he never at any time held under the title of the remainderman.

The judgment of the Circuit court is reversed and judgment rendered on the special verdict for the defendant.

Judgment reversed, and entered for the defendant below.  