
    *Lowry v. Mountjoy.
    [April, 1806.]
    Husband and Wife — Trover for Slave Belonging to Wife — Joinder.—TUe wife need not be joined with the husband in an action of trover for a slave belonging to her.
    Demurrer to Evidence — Effect.—A demurrer admits every • conclusion which the jury might have drawn from the evidence.
    Legacies — Assent ot Executor — When Need Not Be Proved. — The assent of the executor need not be proved, where the legatee had possession during the lifetime of the testator.
    Lowry brought trover for three slaves, Esther, Will and Lucy, in the district court. Plea not guilty and issue.
    The jury found a verdict for the plaintiff, subject to the opinion of the court upon a demurrer by the defendant to the plaintiff’s evidence; which stated,
    1. That the plaintiff gave, in evidence, a deed from Andrew Edwards to his daughters Mary and Peggy; which in consideration of love arid affection for his daughters, (Mary, wife of Alvin Mountjoy, and P.eggy Edwards,) gives to Mary and her husband ,£500, and to Peggy £500, subjecting his estate to payment thereof. The deed which is set forth in haac verba is dated 10th of August, 1778, and recorded in the same month: On it is an endorsement that Thomas Mountjoy shall receive Peggy’s £50.0 in trust for her,
    2. The will of Andrew Edwards, dated April 1786, in which, after some specific legacies, he devises as follows: “X give unto my daughter Margaret the money settled on her by deed, but in case Robert Lowry gives up the said money, I give unto my daughter Margaret,- his wife, the negro Esther, during the. said Margaret’s life; and, at her death, the said negro to return, with her increase, to.be divided between the said Margaret’s children, if any increase after she receives her. It is also my will and desire, that my daughter Mountjoy shall have five pounds current money.” It appears by the will, that the testator had several other children.
    3. The inventory of ' Andrew Edwards’s estate; in which Esther is not enumerated amongst the testator’s slaves.
    *4,- A note in these words:
    “Cr. — By deed of gift recorded August court, 1778, for ,£500, equal to ,£100 specie.
    “December 27th, 1787, this day the above account was settled in full by us.
    “A. Edwards,
    ‘ ‘Robert Lowry. -
    “Teste,
    “Nathaniel Eox,
    “Thomas Kenny.”
    5. A receipt in these words: Received of Andrew Edwards a negro woman Esther and child Dinah during pleasure, which are not to be subject to any execution or other seizures.
    Robert Lowry.
    Teste,
    N. Eox,
    Thomas Kenny.
    6. The parol evidence of Nathaniel Eox, who proved the negroes named in the declaration were delivered to Lowry by Edwards, in his lifetime, in consideration of the deed of gift for ^500: That they were received for the use of Lowry and wife, during her life; and then to the use of her children; but not to be subject to any execution or other demand against Lowry: That there was, at the time, some other instrument, besides the note and receipt above , mentioned, written upon the same subject, in a book, and left in the possession of Edwards; but he does not recollect what it contained.
    7. The evidence of Sullivan, who proved that the negroes remained in the plaintiff’s possession for five years and eight months; and then ran away.
    8. The evidence of Grigsby, who proved that he purchased three negroes, to wit, Esther, Eannj' and Eucy, of the defendant, as part of Edwards’s estate; but returned them, on finding that they had been mortgaged by Edwards to Ozwald, Deneston & Co., after which they were exposed to sale,
    but Dowry forbid it.
    *9. The evidence of Mason, a deputy sheriff, who proved that Will was shewn him by the defendant, as the property of Edwards; and that he took him in execution, and sold him; but that the sale was forbid by the plaintiff.
    10. The evidence of Payne, who heard Andrew Edwards say, He hoped Peggy was satisfied, as she had got negro Esther.
    11. The testimony of' a witness, who proved, that Alvin Mountjoy received the ¿£500 mentioned in the deed.
    12. The evidence of Collins, who proved, that the defendant sold Esther for ¿£95; and that the plaintiff and defendant live about seven miles from each other.
    13. That the defendant offered in evidence the mortgage to Osswald', Deneston & Co., dated the 26th June, 1774; and recorded in September following; which it recites in hasc verba.
    The district court gave judgment for the defendant; and the plaintiff appealed to the court of appeals.
    Call, for the appellant.
    The plaintiff was a purchaser of the slaves from Edwards: for his will proves that it was - contemplated ; and the note of settlement and receipt in the next year, added to the testimony of .Eox and Payne, completely establish it. But Dowry had possession more than five years; and that gave him a complete title: Por it is like twenty years possession in ejectment; which so completely vests the right of possession, that the plaintiff may recover against the rightful owner of the lands. Bull N. Pr. 103; 3 Call, 85. The mortgage does not prevent the recovery, 1. Because the plaintiff had, at least, a qualified property, which will support trover, as the jury might have assessed damages to the value of the life estate only. 2. Because the length of time which has elapsed creates a presumption of payment.
    Botts and Randolph, contra.
    Parol testimony cannot be received to contradict a writing attested by the witness himself, *as Pox was called to do in the present case. There is a difference between being plaintiff or defendant, as to the operation of the act of limitations; for the defendant may plead it, as the statute gives him a right to do so;' but the plaintiff can derive no manner of advantage from it: Besides, as the plaintiff was a trustee, he was not entitled to any benefit from the lapse of time. The slaves were included in’ the mortgage: which is not barred, as the mortgagees were out of the country; and therefore the executor would not have been justifiable, if he had given them up to the plaintiff. The action should have been detinue, and not trover, as the plaintiff must recover the whole value, or nothing. The wife should have joined in the action, as the property is claimed in her right. The slaves are not proved to be the same, with those named in the receipt: Nor is the conversion shewn; and therefore the plaintiff has not made out any cause of action.
    Call, in reply.
    The rule that a witness shall not be received to contradict a writing, attested by himself, applies merely to the attestation; for, as to any thing else, he is as admissible as another. The difference between being plaintiff and defendant, as to the operation of the act of limitations, is not'so universal as the other side contend ; for the plaintiff may reply the statute to a discount offered by the defendant. The identity of the slaves cannot be •questioned now; for the demurrer admits it. The executor was not justifiable in retaining the slaves, because the five years had vested the title in the plaintiff even against the mortgagees. Harrison v. Harrison, 1 Call, 419. There was no necessity to join the wife in the action; for the plaintiff was a purchaser of the slaves, and- the wife -had no interest. But if she had, there was no occasion to unite her in the suit. 2 Dev. 107. The conversion of several of the slaves is proved; and the demurrer admits it as to the rest, because the jury might have found it from the evidence.
    
      
       Husband and Wife. — See monographic note on ‘Husband and Wife" appended to Cleland v. Watson, 10 Gratt. 159.
    
    
      
       Demurrer to the Evidence, — See monographic note on “Demurrer to the Evidence” appended to Tutt v. Slaughter, 5 Gratt. 364.
    
    
      
       Legacies — Assent of Executor. — See foot-note to Livesay v. Helms, 34 Gratt. 441, citing the principal case. See also, monographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
   59*TUCKER, Judge.

The bond created a 'lien' which could only be shaken by bona fide creditors; and the money contained in it was agreed to be given for the slaves, at the death of Edwards. This was conformable to the devise, which .was not revoked by that transaction; and, as Dowry had possession during the testator’s life, the assent of the executor was not necessary: Or, if necessary, it might, under the circumstances, have been presumed. The conversion may be inferred from the evidence; because +he court may make every conclusion which the jury might have made. It was not necessary to join the wife in the suit. Nelthrop v. Anderson, 1 Salk. 114. And the plaintiff was entitled to an action for the life estate in the property. I think, therefore, that the judgment of the district court ought to be reversed, and judgment entered for the appellant.

FDEMING, Judge, CARRINGTON, Judge, and DYONS, President, all concurred that the judgment of the district court should be reversed, and judgment entered for the appellant.  