
    Lewisburg.
    Taylor v. Beale & als.
    
    (Absent Cabell, P. and Brooke, J.)
    1847. July Term.
    
    1. T. makes a parol loan of a slave to C; and the slave remains in the possession of C and of C’s ex’ors lor more than five years; and then T takes possession of him. Held : The slave may be subjected by the creditors of C, to satisfy their claims.
    2. The ex’ors of C having brought an action of detinue for the slave against T, who dies pending the suit, which is revived against his ex’or, and a verdict and judgment having been given in favour of the defendant, the creditors of C, who have recovered judgments against his ex’ors, cannot levy their executions upon the slave.
    3. The creditors of C having caused their executions to be levied upon the slave in the possession of a legatee of T, ho comes into a Court of Equity to enjoin the sale. Upon the hearing, the Court decrees that, the slave shall be sold to satisfy the debts due the creditors. Heed : That the creditors would unquestionably have been entitled to have the slave sold in satisfaction of their debts if they had filed a cross bill in the cause; and as this would, under the circumstances, have been a mere formality, it was unnecessary, and the decree is correct.
    In 1828, Thompson Crutchfield of Botetourt, married Eliza, the daughter of James Taylor of Smyth county. Soon after the marriage, Taylor sent to Mr. Crutchfield a family of negroes, among whom was a boy, Isaac. These slaves remained with Crutchfield in Botetourt until the death of his wife, in- the latter part of the year 1830; when all but Isaac were sent back to Mr. Taylor’s, with the infant child of Crutchfield.
    
    
      Isaac remained with Crutchfield until Crutchfield’s death in 1834, having once accompanied Crutchfield to Mr. Taylor’s, and remained there with him whilst he remained; and on another occasion, having been sent by Crutchfield with some horses of his own, to Mr. Taylor’s, where he remained for a part of the winter, and returned with the horses in the spring.
    
      On the death of Crutchfield, his executors took Isaac into their possession, and hired him out until 1837, when he ran away and went to Mr. Taylor's, who retained him, and claimed him as his own property; insisting that he had only lent him to Crutchfield. The executors of Crutchfield then brought an action of detinue against Taylor for the purpose of recovering said slave; and Taylor having died during the pendency of the action, it was revived against his executor; and when the cause came on for trial, there was a verdict and judgment in favour of Taylor's ex’or.
    After the death of Crutchfield, Beale and Christ recovered judgments against his executors; and after the action of detinue had terminated in favour of Taylor's ex’or, they caused executions which had been issued upon their judgments, to be levied on the slave Isaac, then in the possession of Charles C. Taylor, to whom he had been bequeathed by James Taylor.
    
    Upon the levy of the executions, Charles C. Taylor applied to one of the Judges of the General Court for an injunction to prevent the sale of the slave. In his bill he alleged that the slave was of peculiar value to him: that his father James Taylor died in possession of said slave, claiming him as his own, and insisting that he had only lent him to Crutchfield; and by his will had given him to the plaintiff, who had taken possession of him immediately, with the assent of the executor ; and had since held him as his own. He referred to the judgment which had been rendered in the action of detinue by Crutchfield’s ex’ors against Taylorls ex’or; and relied upon it as a conclusive bar to the claim of Crutchfield's ex’ors and creditors: and making the sheriff, the creditors Beale and Christ, and the executors of Crutchfield parties, he prayed for an injunction to the sale, and for general relief.
    The injunction was granted ; and thereupon, Beale and Christ, and the executors of Crutchfield answered the bill. They insisted that the slave had been given to Crutchfield by James Taylor as an advancement, That ho had been in the possession of Crutchfield from a period very shortly after his marriage until his death; and had then come into the possession of his executors. in whose possession he remained until 1837, when he ran away. That if the slave had been put into the possession of Crutchfield as a loan, and not as an advancement, he had been in his possession and that of his executors for more than five years before the executions had been levied upon him ; and that he was therefore liable for the debts of Crutchfield. And they alleged that the action of detinue was defended by the executor of Taylor mainly on the ground that the slave had never been in his possession; and that the cause had been decided on this point. They, therefore, deny that the judgment in the action of detinue is conclusive against the executors of Crutchfield; and insist that it certainly does not conclude his creditors.
    A great many depositions were fded in the cause, which left it doubtful whether the slave had been put into the possession of Crutchfield as a loan or advancement ; and also on what ground the executor of Taylor had succeeded in the action of detinue.
    
    When the cause came on to be heard, the Court held that after the judgment in the action of detinue, the slave could not be considered as assets of Crutchfield’s estate; and that, therefore, the levy of the executions was illegal. But as the negro had remained in possession of Crutchfield for more than five years, and no writing evidencing a loan had been recorded, he was liable to C}'utchfield’s creditors. And it being agreed that Crutchfield’s estate was insolvent, and an account thereof being dispensed with, the Court appointed a commissioner to collect the hires of the slave, who had been hired out under an order of the Court, and to make sale of him at public auction, on a credit of six and twelve months; and make report of his proceedings to the Court. From this decree the plaintiff applied to this Court for an appeal, which was allowed.
    
      Sheffey, and B. R. Johnston, for the appellant.
    
      J. T. Anderson, for the appellee.
   Baldwin, J.

delivered the opinion of the Court.

It appears to the Court, that shortly after the intermarriage of Thompson Crutchfield with the daughter of James Taylor, the slave Isaac, in the proceedings mentioned, came into the possession of the said Crutchfield, either as a gift or loan by parol from the said Taylor; and was thereafter held and claimed by the said Crutch-field until the time of his the said Crutchfield’s death; a period of more than five years: that after the said Crutchfield’s death, the said slave came to the hands of his executors; and was held and claimed by them as a part of his estate, until he ran away, and returned to the possession of the said Taylor, by whom he was thereafter held and claimed as his own, until the time of his the said Taylor's death : that in the lifetime of the said Taylor, and after the said slave had so returned to his possession, the executors of said Crutchfield, claiming the said slave as a part of his estate, brought an action of detinue for his recovery against the said Taylor, who died pending the same; and the cause being revived against his executor, was tried, and a verdict and judgment rendered against the plaintiffs therein: that the bill of the appellant in the present suit serves to shew that the only question controverted between the executors of said Crutchfield, and the said James Taylor in his lifetime, in regard to the title of said slave, was whether he was a gift by way of advancement from said Taylor, or only a loan; and that this continued to be the only question in regard to the title at the time of the trial of the said action of detinue. It follows that the said action could have been determined in favour of the said Taylor's ex’or, only upon the ground that the said slave had not been given by the said Taylor to the said Crutchfield, but was merely a loan; or upon the ground that after said Taylor’s death, pending said action, the said slave had not come to the hands of his executor, as alleged in the process of revival against him. And it must be taken as regards the representatives of said James Taylor, and as regards the appellant claiming only his title, by bequest in his will, and his executor’s assent to the legacy, that the said slave was a loan from the said James Taylor to the said Crutchfield.

And the Court is of opinion, that the appellees, as creditors of said Crutchfield, are in no wise barred or precluded by the verdict and judgment against the executors of said Crutchfield in said action of detinue, from subjecting the said slave, as the property of their debtor, to the payment of their just demands: it appearing from the evidence in this cause that possession of said slave remained with said Crutchfield from the time of said alleged parol loan, by the space of five years, without demand made and pursued by due process of law on the part of the said James Taylor, the pretended lender; notwithstanding the time within the said period of five years during which the said slave, on one occasion, was at the residence of said Taylor, attending the said Crutchfield on a visit to the former, and on another occasion upon the farm of said Taylor, and with his assent employed in the business of and by the said Crutch-field.

And the Court is further of opinion, that if the said slave was merely loaned to the said Crutchfield, as alleged by the said James Taylor in his lifetime, and by his executor, and his legatee, the appellant, since his death, the contract of loan, notwithstanding the possession under the same for more than five years, was good between the parties and those claiming under them; and the said James Taylor in his lifetime having regained the possession of said slave, and held him till his death, and his executor having defeated the executors sa-id Crutchfield, in the said action of detinue brought by them to recover the said slave, who was thereafter held by the appellant, with the assent of the said James Taylor's ex’or, adversely to the said Crutchfield's ex’ors, the said property was not in contemplation of law, assets in the hands of said Crutchfield's ex’ors, to be administered, when the executions of the appellees Christ and Beale were levied thereupon: and therefore that the said levy was unlawful, and the appellant might have maintained an action at law to recover such damages as he had sustained by reason of that unlawful levy. But the appellant in his bill having alleged himself to be the owner of said slave, and thereby presented a proper case, if he could establish it by proofs, for the interposition of a Court of Equity in his behalf, because of the peculiar nature and value of the property in controversy ; and the Circuit Court having at his instance restrained a sale of the said slave under said levy, and taken possession of said slave and his accruing hires, it is not for the appellant to object to the jurisdiction of the said Court, on the ground that he had failed to shew himself the owner of the property as against the appellees ; or to complain that the Court perpetuated the injunction which had been granted him, (though it appeared he was not the owner of the property,) and would have proceeded to give him further relief, by decreeing payment of said executions out of the assets, if any, of said Crutchfield's estate in the hands of his executors, (whom the appellant had properly made defendants by his bill,) and had ordered an account with that view, which was dispensed with in consequence of the admission of the parties that said Crutchfield's estate was utterly insolvent. And the Court having thus assumed jurisdiction of the case at the instance of the appellant, it was proper that it should go on to dispose of the whole subject according to the rights of the parties, by applying the hires which had accrued from said slave while in the hands of the Court, towards the discharge of said executions, and providing for the satisfaction of the residue thereof, by a sale of said slave, and the proper application of the proceeds; a relief to which the said appellees would have been unquestionably entitled, if they had filed a cross bill for that purpose; and which filing of a cross bill, would, under the circumstances of the case, have been a mere formality.

The Court is therefore of opinion, that there is no error in the said decree of the Circuit Court.

The decree affirmed with costs to the appellees Beale and Christ; and the cause remanded for further proceedings.  