
    Marr vs. Rucker.
    The plaintiff, in an issue upon the plea of fully administered, may prove assets not included in the inventory, or where there is no inventory returned he may show assets in the hands of the administrator.
    Where a gift of slaves is made, either by deed or by parol, with a view to defraud creditors, and the donee holds them as his own for three years, the absolute title to such slaves is vested in the donee, as against the donor and his creditors, but the statute begins to, run as against the creditors of the donor from the time judgmentis rendered w the, State in favor of such creditor.
    To constitute the son the donee of the father, and- to enable such donee to hold slaves in fraud of the creditor of the father, there must be proof of a gift either written or verbal, accompanied by a delivery and followed by an exclu-. sive and adverse possession for three years.^
    Where, the jury ascertained the plajntjff’s debt to be seven hundred and four dollars and ninety-six cents, and assessed his damages at three hundred and forty-three dollars and thirty-two cents, and upon the plea of fully administered, found that the assets in the hands of defendant largely exceeded the debt in plaintiff’s declaration: Held, that this finding was too vggue, and that the jury should have ascertained by their finding that the assets were co-extensive with the amount of the verdict.
    Thom.a.s N. Eubank instituted an action of debt in the name, of - Margaret Rucker, for his use and benefit, in the circuit court of Haywood county, on the 6th day of June, 1S37, against Ambrose. R. Marr, administrator of Alexander Marr, deceased. At the June term, 1837, the plaintiff filed, his declaration, in which he. averred “that, on the 25th day of January, 1832, at a circuit court of law and chancery held and. continued for the town of Lynchburg, in the. State of Virginia, at the court-house in said town, to wit, at the county of Haywood aforesaid, sitting as a court of chancery, the said plaintiff, by the. judgment and- decree of said-court, recovered against, one Benjamin Rucker and Armstead Rucker, who are not sued-in this action, or otherwise, and the said Alexander Marr, the sum of seven hundred and four dollars and ninety-six cents,, and also six pgr cent, pgr annum, interest on six hundred and ten dollars and thirty-seven cents, a part thereof, from the 29th day of December, 1829, till paid, of which said defendant was convict, as by the record and proceedings remaining in said court (a copy of which* duly authenticated, is hereby shown to the court,) will more fully appear, which said judgment remains in full force, not reversed, vacated or satisfied; and the said plaintiff has not obtained any. satisfaction or execution upon said judgment of either the. said Benjamin Rucker, Armstead Rucker, not sued as aforesaid, or of said Alexander Marr, in his lifetime, or of the defendant, administrator of said Alexander,” &c.
    The defendant pleaded: first, nul tiel record; secondly, fully administered.
    Issues were joined on these pleas. The court, upon the production of the copy of the record, decided that such copy sustained the allegations of the declaration in regal’d thereto. The issue of fact was submitted to a jury at the June term, 1838, judge Read presiding. It appeared in proof that M. Rucker had recovered a judgment against Alexander Marr, deceased, as set forth in his declaration, and that shortly after the recovery of said judgment, to wit, in the year 1831, Alexander Marr, then a resident of' the county of-, in the State of Virginia, owned and possessed some twenty-odd slaves, worth about the sum of nine thousand dollars, and other personal property, such as stock and household furniture, &c. and that the present defendant, who lived with his father, owned no property except two negroes, which his father had previously given him for the purpose of exempting him from working on the roads; that he had been engaged in no business or speculation- since that period by which he had made any thing, and had received nothing by gift from any source, unless the slaves in controversy were given; that Ambrose Marr was the only son of the deceased; that the father and son resided together in the State of Virginia till the year 1830, when the son emigrated to the State of Tennessee and settled in Haywood county, bringing with him sixteen slaves, which had been previously claimed and possessed by his father; that in the following year he returned and brought out his father and six other slaves; that they had lived together in Haywood county, and that in Haywood defendant had claimed the ne-groes and controlled them; and the father had not claimed them, or exercised acts of ownership, further than ordering them to catch his horse and the like. This state of tilings continued till the death of Alexander Marr. At what time that event took place does not appear. Ambrose Marr administered upon his estate, but at what time does not appear; nor does it appear from the proof that he returned any inventory whatever of estate belonging to the deceased. Judge Read charged the jury that if they believed the property in question was the property of Alexander Marr, the father, at or about the time the decree was made in Virginia, and Am* brose had acquired the possession thereof without paying a valuable consideration therefor, whereby he had held possession of the property, claiming it as his own for more than three years, with a view to defeat the decree, the property would not become vested in him so as to defeat the action of the plaintiff, and that the plaintiff would be entitled to a verdict, if they found such property in the hands of defendant as aforesaid.
    The jury rendered a verdict, in which they find the plaintiff's debt to be seven hundred and four dollars and ninety-six cents, and his damages three hundred and forty-three dollars and twenty-two cents; and also that said defendant, as such administrator, has received an amount of assets much larger than the amount of the plaintiff’s debt in the declaration mentioned, and that said defendant hath not paid or administered any of said assets so come to his hands.
    The defendant moved the court to set aside this verdict, which was overruled, and judgment rendered in favor of the plaintiff for the debt, seven hundred and four dollars and ninety-six cents, and three hundred and forty-three dollars and twenty-two cents damages. The defendant appealed in error to this court.
    
      Strother, for plaintiff in error.
    1. The statements of witnesses were admitted by the court to show assets in the hands of plaintiff. This is error, as the administrator gives a bond for the faithful performance of his duties, one of which is that he shall render a full and complete inventory of all the personal property of hisintestate which shall come into his hands. If he fails to do this he is liable on his bond, and then evidence aliunde may be introduced; and so it would be on a suggestion of a devastavit; but in an issue of a plea of ¶lene administravit it is incompetent. 2 Wen. Rep. 479: 12 John. Rep. 119.
    2. The plaintiff in error proved that he had had the adverse possession of the slaves (attempted to be shown to be assets) from the year 1830 to the bringing of this action, and that he exercised entire control over them during that time. Yet Ihe court charged jury that if they should believe that the property in question was the property of A. Marr, the intestate, at or about the time the decree was made in Virginia, and Am-brose R. Marr, the defendant, had acquired possession thereof without valuable consideration in law, whereby he had held the possession of them as his own property, with a view to defeat the decree, for more than three years, the property would not become vested in him whereby to defeat the action of the plaintiff. This was error, because the plaintiff having proven that he had had the adverse possession for more than three years before suit was brought against him, the court ought to have left the jury to ascertain whether there was an adverse possession, and if they so found, that then, by the statute of limitations, the law vested the absolute property in the plaintiff; for in this case the court had no right to enquire into the consideration given, or the intention with which the property was acquired. Mar. and Yer. Cocke and Jack vs. M’Ginnis: 7 Yer. 233, Reeves vs, Dough-erty: 20 John. Rep. 33. Before the first of» January, 1833, a bill of sale proved and registered was not necessary to pass the title of a slave between the parties themselves. 8 Yer. 392: 5 Yer. 282.
    3. There is error in the verdict, because the jury do not find the specific amount of assets; they do not find that the plaintiff had assets to an amount greater or equal to their verdict, but on the contrary they find that plaintiff had assets to a much larger amount than the amount of said debt in his declaration mentioned; they do not say bow much more than the debt, which was seven hundred and four dollars and ninety-six cents: the verdict is for that amount of debt, and three hundred and forty three dollars and twenty-two cents damages, making the whole amount of the verdict one thousand and forty-eight dollars and ninety-eight cents. This» for any thing that appears to the contrary, may exceed the amount of any supposed assets, and is error. 5 Crancb, 19: 9Yer. 414.
    
      Loving, for defendant in error.
    1. No authority can be found which limits the plaintiff in his proof on an issue on the plea of “fully administered” to the production of the inventory or a copy. To do this would be to give an executor or administrator the power, by the non-return of an inventory, to cut off all proof whatever; In this case the administrator has returned no inventory, and fraudulently claims the whole estate of his intestate, worth not less than ten thousand dollars. Can it be-possible that the plaintiff, in a case like this, can introduce no proof to show the jury that assets had come to the hands of the administrator, for the reason that he had made and returned no inventory, and that the plaintiff in consequence ’thereof would be bound to sue on the bond? The non-return of an inventory is of itself evidence of a devastavit. If, then, evidence is inadmissible of assets unadministered, the fraudulent administrator is permitted to take advantage of his own wrong and is protected in a fraudulent violation 'of his duty. The settled practice of our courts justifies the admission of evidence so conformable to reason and so entirely necessary fo the attainment of justice. P
    2. There is no proof of a gift either written or verbal from the intestate to the defendant; no consideration nor conveyance, (act of 1831, ch. 90, sec. 1,) and no delivery ánd possession exclusive and adverse for three years. The charge, therefore, of the circuit judge, that the statute of limitations would not protect a fraudulent donee against the bona fide claims of creditors, is wholly inapplicable to the facts of this case, and though erroneous it is not just cause of reversal.
   Reese, J.

delivered the opinion of the court.

Three objections have been taken in argument by the coum sol lor the plaintiff in error to the proceedings and judgment of the court below. First, that the defendant below having returned no inventory, it was not competent for the court to hear proof to fix the defendant below with assets, but the remedy of the plaintiff in such case is by action on the administration bond. To sustain this position we have been referred to cases in the State of New York. These cases have been founded upon a statute, of that State. By the principles of the common law, and the immemorial practice of the courts jn England and in Tennessee, upon the issue of fully administered the plaintiff may show and prove assets not included in the inventory.- Second, that the court erred in charging the jury that if the supposed gift from the father to the son were made to defeat or embarrass the creditors of the former in the collection of their just debts, the adverse possession of the son as against the father would not give him title as against the creditors of the father, or prevent thé négroes in question from being regarded in a suit by such creditors ás assets. This we consider as thé méaning and legal effect of the charge. Ás an abstract and general proposition, the charge upon the point was erroneous; but in the aspect of the proof and the attitude of the parties before the court, we do not deem it such error as would make it the duty of this court to i’eversó the judgment; first, because there was no proof of a gift, written or verbal, from the father to the son, accompanied by delivery and followed by an exclusive adverse possession for three years, and because, especially, in the second place, we have at this term of the court decided, in the case of Jones vs. Read, that the statute of limitation, in the case of a fraudulent gift or conveyance, runs in favor of the vendee or donee against the vendor’s or donor’s creditors from the time only when they obtain judgment against the vendor or his representatives. In this case the judgment in Yirginia is not such judgment as is referred to in the above case, but was the evidence only upon which to obtain a judgment in this State. The statute, therefore, in such case would not give to the fráudulent vendee or do-nee a good title as against the creditor, the plaintiff in this action. But, thirdly, it is contended that the judgment shall be reversed, because the verdict of the jury upon the plea of fully administered finds that the defendant had received assets which he had not paid out to an amount much larger than the amount of the plaintiff’s debt in the declaration mentioned, which was seven hundred and four dollars and ninety-six cents, and they assess the damages at three hundred and forty-dollars and twenty-two cents. The term “much larger amount” is too vague to cover the damages assessed; the jury should have ascertained by their finding the assets to be co-extensive with the amount of the entire verdict. This is well settled by authority. See 9 Yerger, 414, and the cases there cited. The proof making it more than probable that the assets greatly exceeded the amount of the verdict, we feel much reluctance in setting aside the judgment, but we are constrained to do so.  