
    Shropshire et al. vs. Shropshire, et al.
    
    In a suit against the vendee of a slave, the vendor is a competent witness to prove he had no title, or a defeasible title to the slave sold.
    A slave was devised to A for life, or during widowhood; remainder to B and C. The slave was sold to D; D claimed and held the slave adversely more than three years before the suit was instituted against him; which defence he pleaded: Held, 1st, that B and C’s right or title only accrued upon the death or marriage of A, from which time the act of limitations would only run. 2d, That D having been in possession of the slave more than three years before the suit was instituted, it was incumbent upon B and C to prove the death or marriage of A within three years next before the suit was brought, to avoid the operation of the statute.
    Where the statute of limitations is prima facie a good defence to an action, and its effect is sought to be avoided by showing'that it never in fact commenced running, the onus prolancli lies upon the party who thus seeks to avoid its operation.
    The complainants, legatees of Wingfield Shropshire, deceased, allege in their bill, that the said Wingfield Shropshire devised, among other property, a negro boy, Ned, to his wife, Catharine, during her life of widowhood, with the remainder to the complainants and the defendant James H. Shropshire, who were his children; that Catharine was appointed executrix of the ■ will, had it proved, and took upon herself its execution; that James H. Shropshire took the boy Ned without authority and sold him to defendant Williams, who sold him to defendant Tally; that James H. Shropshire has received already more than his proportion of the estate; and that Catharine has since 'intermarried with Joel Jetton, by which means she hás terminated her estate in, and title to the negro Ned, and prays that he be delivered up to them, and that an account betaken of his hire.'
    The answers of Williams and Tally admit the death of Wingfield Shropshire, the execution of the will, the devise as stated; that Catharine was appointed executrix, and proved the will and took out letters testamentary, and that she has married; but insists that Catharine sold the negro Ned absolutely to James H. Shropshire for a thousand dollars; that as executrix she had the power to make such sale, and that an absolute title was thereby vested in James H. Shropshire, who sold to Williams and he to Tally as stated in the bill. The answers also state that Williams and Tally have been in possession of said negro more than three years next before the bill was filed, and they rely on the statute of limitations.
    So much of the proof as is necessary to a correct understanding of the case will be found in the opinion of the court.
   Green, J.

delivered the opinion of the court.

Upon these pleadings two questions arise: 1st, What title did James H. Shropshire acquire to the negro Ned? There is no question but that Mrs. Shropshire, as executrix, had power to make a valid sale of the negro; and had she sold him absolutely and without condition, it must necessarily have been taken that she dealt in her .character of executrix, for that was the only character in which she could rightfully have made an absolute sale. But upon this subject the proof explains the nature of the contract, and shows that she intended only to sell the interest which she had to the negro, under the will, absolutely; and on condition only that the legatees would .consent to the sale when they became of age, did she undertake to convey the entire right. This is explicitly James H. Shropshire’s testimony; and he is not impeached or contradicted by Mr. Miller, who only says that Catharine told him she had sold Ned to James H. Shropshire. But it is insisted that James H. Shropshire is an interested, and therefore an incompetent witness. In answer to this, it is enough to say that he would be liable to Williams should the complainants succeed, and therefore that his testimony is against his interest, and consequently is competent.

James H. Shropshire, therefore, acquired only the estate his mother had in the negro Ned, by the purchase, and of course could communicate to Williams no better title than that which was vested in him. The defendants were entitled to Ned during the continuance of Mrs. Shropshire’s widowhood; but when she married the right of the complainants accrued.

2. The remaining question is, are the complainants barred by the statute of limitations? The defendants have been in possession of Ned more than three years before the suit was brought. Prima facie, this possession, claiming him for themselves, and adversely to all others, confers on the possessor a good title by force of the statute of limitations. To avoid this, the complainants say that their right of action did not accrue until the marriage of Catharine; but they do not allege, nor is it shown in proof, when that marriage took place. That fact it was incumbent on the complainants to prove. It is an affirmative fact within their knowledge, which would come in avoidance of the plea, and the proof of which would prevent the bar apparently created by the length of the defendants’ possession.

Upon this view of the case, the court is of opinion that the statute of limitations conferred on Tally a good right to the negro Ned, and is therefore a bar to the complainant’s demand.

Let the judgment be reversed, and the bill dismissed with costs.

Judgment reversed.  