
    *Pate v. Baker &c.
    February, 1837,
    Richmond.
    Fraudulent Conveyances — Loan of Slave —Five Years’ Possession by Loanee, — Case between the lender of a slave and the creditors ot the loanee, under the statute declaring that where possession shall have remained with the loaneeortho.se claiming under him, for five years, without demand made and pursued by due process ot la.w on the part of the lender, the loan shall be taken to be fraudulent as to the creditors of the loanee, unless it were declared by will or by deed m writing proved and recorded.
    Same* — Same—Same—Effect of Unrecorded Deed Declaring Loan. — After a loan to a person with whom, or with those claiming under him. possession has remained five years, a deed is made by the lender, declaring the original loan and continuing it; but this deed is never admitted to record: Held, the deed cannot affect a creditor of the person in possession, and ought not to be received as evidence against such creditor.
    Same Same -Resumption of Possession by Lender after Five Years — Effect — Where possession has remained with the loanee, or with those claiming under him, for five years, and is then resumed by the lender, the possession must continue with the lender the full period of ñve years from the time it was actually resumed, before the title will be revested in the lender as against a creditor of the loanee.
    Appeal from a judgment of the superiour court of law for the county of Bedford, rendered in an action of detinue brought by Abraham Baker- and Samuel Baker junior, trustees of Philip Hodnett, against John Pate. According to the record, the declaration was filed at December rules 1818, for five slaves, the issue of Amy a female conveyed to the plaintiffs in trust, namely, Polly, Wilson, Delphia, Washington and Amy. But there was reason to suppose that in point of fact the suit was originally brought merely for the mother, and that the declaration was afterwards amended so as to embrace the children. The pleas were, first, that the defendant doth not detain the negro Amy in the declaration mentioned, and secondly, that the cause of action did not accrue within five years; upon both of which pleas issues were joined. At April term 1822 a jury was impaneled, *'who brought in the following verdict: “We find for the plaintiffs the slave Amy in the declaration mentioned, of the value of 300 dollars, if to be had; if not, we find for the plaintiffs the sum of 300 dollars, her aforesaid value, and, one penny damages for her detention. We likewise find that Amy had issue, now living and in the possession of the defendant, three children, viz. a boy by the name of Wilson, aged about four years, of the value of 200 dollars, born after the defendant acquired the possession of Amy and after the plaintiffs’ right of action accrued; but about three months before the date of the writ in this cause; another boy by the name of Washington, aged about two years, of the value of ISO dollars, born since the institution of this suit; and a girl of the name of Charlotte, aged —— months, of the value of 75 dollars, likewise born since the institution of this suit. If the plaintiffs have a right to recover in this action the children of Amy born as aforesaid, then we find for the plaintiff's the boy Wilson, of the value of 200 dollars, if to be had; if not, the sum of 200 dollars, his value: likewise the boy Washington, of the value of ISO dollars, if to be had; if not, the sum of ISO dollars, his value: and likewise the girl Charlotte, of the value of 75 dollars, if to be had; if not, 75 dollars, her value. But if the court shall be of opinion that the plaintiffs must bring another action for the children of Amy born as aforesaid, then we find for the plaintiffs the said slave Amy only.” The day after this verdict was found, it was set aside on the motion of the plaintiffs, and they had leave to amend their declaration.
    At April term 182S a second trial was had, and the jury found a verdict for Polly of the value of 200 dollars, Wilson of the value of 200 dollars, Washington of the value of 125 dollars, Delphia of the value of 90 dollars, and Amy of the value of SO dollars, together with one penny damages; and judgment was rendered ^accordingly. From this judgment the defendant appealed.
    There were three bills of exception. The first set forth that on the 3d of March 1803, Amy the mother of the slaves mentioned in the declaration was the property of Philip Hodnett of the county of Buckingham, and on that day was brought on loan to the house of Absalom Baker in Bedford county; that she was so brought by Absalom himself, a young unmarried man, whose father and mother lived with him on his the said Absalom’s own land and plantation; that the father of Absalom was named Samuel Baker, and the loan was from Hodnett to said Absalom upon trust for the benefit of the wife of Samuel Baker, and revocable at the pleasure of said Hodnett, the deed evidencing which loan was unrecorded, but the purpose, as stated by the said Absalom, was to aid in the support of his mother, who was the sister of Philip Hodnett, during her life, and after her death the said slave was to go to him the said Absalom; that in November 1803, Absalom married, after which he lived for a time in a house near to that in which his father lived, which before had been used by his father as a kitchen, and then, after some time, he removed to a house distant about ISO yards from his father’s, being on the same tract of land and plantation, where he continued until February 1809, when he died, being at his death the agent and trustee of Philip Hodnett in relation to the said Amy; that from the 3d of March 1803 until the death of said Absalom, Amy continued at the house occupied by the said Samuel Baker, and in his possession in manner before stated; that after the death of Absalom, Amy continued in the possession of Samuel Baker until April 1811, at which time she was taken by the sheriff of Bed-ford to satisfy an execution of Brown & Co. against Samuel Baker; that on the 28th of May 1811, which was after the levy of the execution, Philip Hodnett appointed Henry Baker, another son *of the said Samuel, to make demand and obtain possession of Amy, and Henry Baker, being so authorized, had several interviews afterwards with the agent of Brown & Co. in relation to Amy; that the agent of Brown & Co. persisting in his determination to hold Amy subject to the debt for which the execution issued, Henry Baker, on the 9th of June 1811, being the day appointed for the sale, executed his own bond to Brown & Co. for the money (a credit being given for the same) and Amy was thereupon surrendered to him, for the purpose of being restored to his father, from whose possession she had been taken; that Henry Baker did not restore Amy to his father, but retained possession of her himself as the agent of Philip Hod-nett, or hired her to others; that from the 9th of June 1811 until the month of June 1816, Amy was in the possession of some of the sons of Samuel Baker, sometimes in the possession of one and sometimes of another, or of persons to whom she had been hired by them, the said sons being, at different periods, appointed by-writing the agents of Philip Hodnett; that John Pate having obtained a judgment against Samuel Baker upon a bond executed in the year 1786, issued an execution upon that judgment on the 3d of June 1816, which execution, on the 7th of that month, came to the hands of the sheriff of Bedford, in which county the said Amy then was, being in the possession of a person to whom she had been hired by the plaintiffs as agents of Hodnett; that Amy was taken by virtue of that execution, and on the 27th of June 1816 was sold under it, and purchased by the defendant. It did not appear that from the 3d of March 1803 until the 28th of May 1811, any demand was ever made by the said Philip Hodnett of the said Amy, otherwise than that two instruments of writing were executed by the said Philip Hodnett, one in 1808 and the other in 1810, appointing some one of the sons of the said Samuel Baker as his Hodnett’s agent and trustee, to keep the said *slave for the use of their mother, at the pleasure of said Hodnett; neither of which instruments was admitted to record. And it did not appear that any deed declaring the said loan and the purpose thereof had ever been made and admitted to record in any county in which the said Amy was, until the year 1814, at which time, viz. on the 17th of November in that year, said Philip Hodnett executed his deed to the plaintiffs, which at February term 1815 was admitted to record in the county of Botetourt, in which county Amy then was. Upon these facts the defendant moved the court to instruct the jury, that if it should appear to them that Samuel Baker the elder had been in possession of the slave Amy for the space of five years, without demand being made and pursued in due course of law by the said Philip Hodnett for the recovery of the possession of the said slave, then in such event the defendant had a right to levy his execution upon the said slave. The court gave the instruction asked for; but further instructed the jury, that if it should appear to them that Philip Hodnett, or his agents other than Samuel Baker the elder, had been five years in possession from the time the said slave was taken under the execution of Brown & Co. against Samuel Baker, such, possession of five years would revest the title to the property'in the said Philip Hodnett. The counsel for the defendant then moved the court to instruct the jury, that the possession of the said Philip Hod-nett ceased on the 7th of June 1816, when the execution by virtue of which Amy was sold came to the sheriff’s hands, and that it could not have commenced sooner than the 9th of June 1811, when she was surrendered to Henry Baker. But the court instructed the jury, that the possession obtained by Henry Baker on the 9th of June 1811, for Philip Hodnett, ought to have relation back to the 28th of May 1811, at which time he was, by the deed of the said Hodnett, appointed his agent to demand and recover the slave. To this opinion the defendant excepted.
    *The third bill of exceptions set forth that the plaintiffs, at the trial, offered in evidence a paper writing in these words: “Be it known to all whom it may concern, that I, Philip Hodnett of the county of Buckingham, did on the 3d day of March 1805 lend unto Absalom Baker of the county of Bedford a negro girl named Amy, about seven years old, which said negro girl I do by these presents again lend unto the said Absalom Baker, which he is to keep until I shall demand her in person or by my lawful representatives, and on such demand being made, he is to deliver the said girl. In witness whereof I have hereunto set my hand and seal, this 19th day of November 1808.
    Teste, Philip Hodnett [Seal.]
    John Jarred, Andrew Hairston Amyx, his
    Raney X Amyx” — ■ mark
    And proved the execution of the said writing by the testimony of John Jarred a subscribing -witness thereto. This bill of exceptions proceeded to state, that it appeared that previously to this time, viz. in the year 1802 or 1803, Hodnett loaned the said negro to Absalom Baker, and it did not appear that from the year 1802 or 1803 the said negro had ever been in the possession of Hodnett, or that he had ever made any declaration of a loan to the said Absalom Baker by' writing sealed and recorded according to the provisions of the act of assembly, and this declaration of a loan not being so recorded, the reading thereof was objected to by the defendant, but his objection was overruled by the court; and the witness proving that the said writing was executed as evidence that the said Absalom Baker was authorized by Philip Hodnett to hold the said negro according to the terms of said writing, the court permitted the said writing, together with the testimony of the witness, to go to the jury, as evidence to avail in this cause as much as the jury should believe the same to prove. To which opinion the defendant also excepted.
    ^Johnson, for the appellant.
    Heigh, for the appellees.
    
      
      FrauduIent Conveyances. — See monographic note on “Fraudulent and Voluntary Conveyances” appended to Cochran v. Paris, 11 Gratt. 348.
      See principal case cited in Hall v. Webb, 21 W. Va. 325.
    
   TUCKER, P.

If we confine ourselves to this record as we find it, and do not improperly draw the inference from a verdict which has been set aside, that the record contained another declaration, very little difficulty occurs as to the pleadings. The record shews a declaration for the five slaves, the children of Amy, filed four years anteriour to the first verdict. It is very possible it might have been originally for Amy the mother alone, and that, upon the leave to amend, her name was stricken out and those of the children inserted. But this does not appear, and we are not at liberty to conjecture that this was done. As the record stands, we can only infer that the leave to amend was waived, and of course the cause stood upon the first declaration. Then, as to the pleadings. The first plea might and ought to have been demurred to, for it makes defence as to the whole, yet denies detention only of one. But this defect, it is said, is cured after verdict. Stephen on Pleading, p. 233. And1 even if it were not, the appellant could not object to his own bad plea; for a pleader is never awarded to him who has committed the fault. Doug. 396; Kirtley v. Deck, 3 Hen. & Munf. 388; Tidd’s Pract. 830. The judgment therefore must stand, unless there appears to have been error in the conduct of the trial. This, I think, clearly appears.

We are to remember that this case is not that of a demurrer to evidence. We give no opinion, therefore, on the question whether the resumption of the possession before the lien or levy of the execution, the debt having been contracted many years anteriour to the loan, revested in the plaintiff all his rights or not. The naked question is presented here, whether the possession resumed by the attorney in fact is to be considered as commencing at the time of the resumption, or at the *date of his power. I can see no ground for the position that the resumption relates back to the date of the power. Until the levy of Brown & Co.’s, execution in April 1811, the slave Amy was. in the possession of Samuel Baker. Prom that date until the surrender by the agent of Brown & Co. she was in custody of the-law. She could not be at the same time in the possession of the sheriff and of Hod-nett’s agent. She was therefore not actually-in Hodnett’s possession, through his agent, until the surrender on the 9th of June 1811. Nor after the surrender could she be construed to have been in his possession from the date of the power. Por Brown & Co. did not surrender their lien; they took Henry Baker’s bond for it, and the possession acquired was a purchased possession, which must be counted from the time of the purchase. Again, the sheriff’s property in goods taken by execution is a special property, and when the execution is discharged or the lien is removed, the property and' possession reverts to him from whom it was taken ; that is, in this case, it reverted ,to Samuel Baker; and it was indeed delivered to Henry Baker for him. And although Henry, by virtue of his power, became instantly invested by remitter in right of Hodnett, he could not be so invested till he came into possession, for re-mitter presumes, ex vi termini, an actually acquired possession. Indeed the supposition that the possession taken on the 9th of' June could relate to the 28th of Maj' is only a fiction by relation, and this fiction cannot be admitted to the prejudice of the rights of creditors. The demand itself does. not appear to have been made previous to the 9th of June. And though an actual demand followed by acquisition of the possession may be considered as breaking the continuity of the loanee’s possession, it would be going too far to say that the authority to demand shall have that effect from its date.

*1 think, therefore, that there was error in the instruction given to the jury, that the resumption of possession was to be reckoned from the date of the power. I am also of opinion that the deed of loan mentioned in the third bill of exceptions, not having been recorded, and not having been accompanied by a public, open and notorious return and reloan of the slave (see Boyd & Swepson &c. v. Stainback &c., 5 Munf. 305), was improperly admitted to go to the jury. I am therefore of opinion to reverse the judgment, set aside the verdict, and send the cause back for a new trial.

Judgment reversed and new trial' awarded.  