
    *Roberts v. King.
    
    July Term, 1853,
    Lewisburg.
    Sale of Slaves — Property in Possession of Vendor — Case at Bar. — In 1817 K executed to Ms step son R a bill of sale for a female slave, purporting to be for a valuable consideration. At the time R was but a boy, and lived with K, and continued to live with him until 1826, when he married and settled near K on land given him by K. The slave had seven children, and all of them but one continued in the possession of K until the death of R in 1845; that one had been for some years previous to R’s death in his possession. R had been heard to say that K had made him a bill of sale for the slaves and that they would be his at the death of K and his wife who was the m’other of R. R died leaving a widow but no children, so that his widow and mother were his distributees. In a short time after the death of R his widow filed a bill against K and wife and R’s administrator, claiming distribution of the slaves, alleging that the debts of R had been paid by the administrator out of other property, that he declined to sue for the slaves but consented to the suit. K and wife answered and insisted that the bill of sale was intended to give to R only the remainder of the slaves after their death, and was so understood by R, who never set up any claim to the slaves during his life; that the slave conveyed was a gift from K to R, without consideration, though the bill of sale purported to be for value. And they objected to the jurisdiction of the court; and relied upon the statute of limitations, and the lapse of time. R's administrator answered, admitting the facts stated in the bill as to his action. Hbld :
    1. Same — Same—Equity Jurisdiction —It is a proper case for the jurisdiction of the court.
    2. Same — Same—Statute of Limitations. — The possession of K was subordinate to the deed, and not adversary; and therefore the claim was not barred by the statute of limitations,
    
      3. Same — Same—Laches.—R Raying- lived with K who stood in tie place of a parent and guardian to him, until 1826, and the suit haying been brought in 1845, the lapse of time does not bar the claim.
    4. Same — Presumption of Reconveyance — Case at Bar. —The ground of defence set up in the answer precludes the presumption of a reconveyance of the slaves by R to K.
    In July 1846 Jane Roberts, widow of Richard T. Roberts deceased, instituted a suit in equity in the Circuit court of Tazewell county, against Elijah *King, and Polly his wife, and Alexander Ward administrator of Roberts, to recover her distributable share in certain slaves in the possession of King, which she alleged were a part of her late husband’s estate. In her bill she charged, that on the 22d of July 1817 King executed to Roberts a bill of sale for a negro woman named Celia and her child, in consideration of the sum of three hundred dollars; which bill of sale was acknowledged in court by King and ordered to be recorded. That said slaves went into the possession of Roberts, and remained there, with the exception of some short intervals of time, until the death of Celia. That she left seven children, which also remained in the possession of Roberts, with occasional intermissions, until his death, which took place in the year 1845. That Roberts died intestate and childless, leaving the plaintiff and Mrs. King, who was his mother by a former husband, his heirs and distributees. That Roberts and King lived within less than half a mile of each other, on the most friendly terms. And King having no children, and being old and infirm, Roberts frequently permitted some of the said negroes to spend a considerable time at King’s house to aid him in carrying on his plantation; but that this never lasted more than a year at a time ; the slaves last loaned being then recalled and others sent in their places. That since the death of Roberts all the slaves aforesaid were claimed by King who took possession of and still retains them.
    She stated further, that Alexander Ward had qualified as administrator of Roberts, and had paid all the debts without resorting to the slaves, and yielded his claim upon them, that they might be distributed according to law. She claimed that she was entitled to one moiety of the slaves for life, and asked for a decree accordingly, and for general relief.
    King and wife answered the bill, and objected to *the jurisdiction of the court, on the ground that as the bill charges that they hold the slaves adversely, the question of title should be tried at law in an action brought against them by the administrator of Roberts. They further say, that Roberts being the son of the female defendant, was brought up by them; they having married when he was very young. That having no children of his own, King considered and treated Roberts as his son, and having determined in 1817 to give him the slave Celia and her increase after the death of himself and wife, David Ward, a neighbor, was requested to draw an instrument to effect this object. The bill of sale mentioned by the plaintiff was accordingly prepared by Ward, who stated that the instrument must be recorded, and that it would then give the negroes to Roberts after their death. That having implicit confidence in Ward, and knowing nothing of the legal effect of such instruments, the defendant King executed the bill of sale and had it recorded; but his intention in so doing was only to bestow the slaves upon Roberts after the death of himself and wife; and this he supposed was the effect of the instrument. That no consideration whatever passed from Roberts to said King; but it was on the part of King a mere voluntary act of kindness to a boy whom he had raised. Indeed, Roberts at that time was worth nothing whatever except a few things which had been given him by King; and he was a youth living with King and wife, supported by them and under their control.
    They aver that the only object of the bill of sale was to secure the slaves to Roberts after the death of King and wife, and that he so understood it, and never in his life claimed an3r interest in the slaves whilst King and wife should live. That it was wholly untrue that the slaves were taken possession of by Roberts, and retained until his death. That he never had possession *under the bill of sale, and never claimed it. That he never exercised the slightest act of ownership over the slaves, and always asked the permission of King and wife when he needed the services of the slaves.
    They further state, that after the execution of the bill of sale Roberts continued to live with them until 1826, when he married ; and the defendant King gave him a part of his own plantation to live on; and he resided on the land so given him until his death. The slaves however remained with King and wife, and their right was never questioned. That Roberts frequently informed defendants that the health of his wife was delicate, and that she could not undergo hard labor; and he often requested as a favor that they would let some of the slaves stay with his wife and assist her. That such requests were never refused, and defendants permitted sometimes one and sometimes another of the slaves to go and assist Roberts’ wife, so that there was generally one of the slaves there; but they were taken home whenever defendants chose, and their right to do so was never questioned. That in fact everything that Roberts owned had been given to him by the defendants, and they intended him to enjoy after their death all that they owned. That the defendant King had been in undisputed possession of the slaves from the date of the bill of sale until Roberts’ death, a period of twenty-eight or twenty-nine years; and he relied upon this lapse of time as a bar to the plaintiff’s suit.
    Ward the administrator of Roberts, answered, and said that he had paid all the debts of his intestate without its being-necessary to use the slaves for that purpose. That he knew the slaves mentioned in the bill were subject to distribution between the plaintiff and Mrs. King alone; and as there was a dispute between them about the property, he thought it best *for the interest of the estate he represented, not to waste it in controversies with the distributees, but to permit them to settle the matter among themselves. He therefore made no objection to the institution of a suit by the widow of his intestate for a distribution of the slaves.
    The bill of sale of the slaves mentioned in the bill is there correctly described. It appears, however, that King always kept possession of all the slaves except one named Ann, which was in the possession of Roberts several years before his death. And one of the witnesses states, that he had heard Richard T. Roberts frequently say, that Elijah King had given him a bill of sale for the negroes in controversy, and at King’s death he would own them all. That he never spoke of them as his property except at the death of King, and witness’s impression was, at the death of his mother also.
    Pending the cause, the defendant King died; and the case coming on to be heard in September 1848, the court dismissed the bill with costs. .Whereupon, the plaintiff applied to this court for an appeal, which was allowed.
    Floyd, for the appellant.
    S. Hogan, for the appellee.
    
      
      In Erskine v. North, 14 Gratt. 69, the court said; “And I apprehend that it is a well-established principle, that a grant will never be presumed in favor of a party who by his answer expressly or impliedly admits that no grant has been made. Roberts v. King, 10 Gratt. 184.”
    
   EEE, J.

I concur with Daniel in the opinion that the objection to the jurisdiction of the court" in .this case cannot be sustained. The failure of Ward the administrator of Richard T. Roberts, to take any measures for the recovery of the slaves from King, and his surrender of the subject for discussion and settlement between the appellant and Mrs. King, admitted in his answer, and placed upon the ground that although he knew there was a dispute about the property, yet as it was not necessary to resort to the slaves *for payment of debts, he thought it best for him not to engage in the controversy, but leave it to the distributees to settle the matter among themselves, constituted, as I think, a sufficient ground for the appellant to resort to a court of equity for a distribution of the slaves between herself and Mrs. King, if she could show herself entitled to such distribution. But I cannot concur in the conclusion at which he has arrived, upon the pleadings and proofs in the cause, that the appellant has shown herself so entitled. While I am of opinion that she will be entitled upon the death of Mrs. King to a moiety of the slaves for her life, I am equally of opinion that King and his wife had acquired a right to hold them during their joint lives, which it is too late now to disturb or call in question.

I think it is clear that all that the parties contemplated by the conveyance of the 22d of July 1817, was to secure the slaves to Roberts after the death of King and his wife. The acts and declarations of all the parties, including Roberts himself, show that it was fully intended to reserve an estate to King, and his wife during their lives, and that after their deaths the staves should become the property of Roberts. Eor notwithstanding the conveyance, King continued to hold possession of the slaves, (excepting the girl called Ann, whom it may be fairly inferred he permitted to stay in the family of Roberts as a favor ,under the circumstances stated in his answer,) from the time of the conveyance down to the institution of this suit, (within a few days of twenty-nine years), and after its commencement until his death in the spring or summer of 1847, claiming at the least an estate in the property for the joint lives of himself and his wife; and Roberts permitted this possession to continue until his death, which occurred in 184S, a period of about twenty-eight years, never making any demand of possession *of the property or setting up any claim except to the remainder after the expiration of the life estate of King and his wife. It is true the deed executed by King conveyed the property to Roberts absolutely; and doubtless he might, by a proceeding taken within proper time, have recovered the possession of it from King; nor could the latter have successfully resisted such recovery by showing that the effect and operation of the deed was not according to the real intention of the parties. But if Roberts failed to resort to any measure to recover the slaves, and permitted King to hold possession of them for twenty-eight years after he had. made an absolute conveyance of them to him, under a claim of whatever estate or interest in them, whether of the absolute property or of an estate for life, I cannot perceive how Roberts or his representatives can afterwards successfully controvert the right of King to hold them for the estate so claimed by him. If King, after making the deed, had been permitted by Roberts to retain possession of the slaves during his (Roberts’) life, claiming to hold them absolutely as his own property, notwithstanding his deed and in defiance of Roberts, upon the ground that the deed was obtained by fraud or was not binding upon him for any cause which he might please to assign, certainly after the death of Roberts, his representatives could never recover the slaves of King at law or in equity; and there can be no conceivable reason, as it seems to me, why because King has claimed only an estate for the lives of himself and his wife during the long period for which he has been suffered to hold possession of them under such claim, instead of the absolute property, the representatives of Roberts can any more successfully controvert the life estate claimed by King than they could the absolute property, if such had been the character of King’s claim. Indeed, if to maintain the right of King and his wife to hold the slaves during *their lives, it were necessary to presume a deed of retrocession of' the slaves from Roberts to King for the lives of King and wife, I can perceive no reason why, under the well settled doctrine upon that subject, such presumption might not be made. But it is not necessary to presume such a deed, because a deed from Roberts was not required to vest a life estate in the property in King and his wife. A parol gift accompanied by the possession, and which remained with the donee, would, as between the parties, be sufficient for that purpose; and if it be now necessary to presume such a gift, or whatever it may be necessary to presume in order to sustain the right of Mrs. King to hold the possession of the slaves as against Roberts and his representatives during her life, I think such a presumption should be made.

I think, therefore, the complainant was premature with her bill, because her right to possession of any part of the slaves will not have become perfect until the death of Mrs. King; and that the court did not err in dismissing her bill. But the dismissal should have been without prejudice to her right to maintain any proper proceeding which she may be advised to institute for the recovery of her interest in the shares after the death of Mrs. King.

DANIEC, J.

The objection, to the jurisdiction, taken in the answer of King and wife, is not tenable. It is stated in the bill that all the debts due by the estate of Roberts had been paid by the administrator Ward, without a resort to the negro property ; and that he had yielded any further claim upon it. And, in his answer, Ward admits that the debts had been all paid, without the necessity of using the negroes for the purpose. And that knowing the slaves were subject to distribution between the plaintiff and his codefendant alone (no other person being interested in them), and that there was a dispute about the property ^between them, he had thought it best for the interest of the estate he represented, not to waste it in controversies between the distributees, but to permit them to settle the matter among themselves: And that he had therefore made no objection to the institution of a suit, by the widow of Roberts, for distribution. The debts of Roberts being all paid, and his mother Mrs. King, being, in any event, entitled to a moiety of the slaves, there could have been no utility or propriety in requiring the institution of a suit at law in the name of Ward against her for their recovery; for in the event of such recovery Mrs. King would have had a right immediately to bring her suit for a partition. Probable delay, expense and circuity of action were properly anticipated and avoided by resorting at once, as Mrs. Roberts did, to a court of equity, where all the questions arising, and all the rights involved, in the controversy, could be determined and adjusted in one proceeding.

Nor do I think that any bar to a recovery of her share of the property by Mrs. Roberts, is to be found in the statute of limitations. It is true, it is not shown that there was any change in the x^ossession of the slaves following the execution of the deed, with the exception, that Witten a witness for the defendant, says one of the negro girls lived for some time with Roberts, at a period not long before his death, but how long he did not know; and that two of the witnesses, Barnes and Thompson, also say that Roberts had in his possession for several years before his death one of the girls, Ann: But whether she was the same girl referred to in the deposition of Witten, does not distinctly appear, though it seems most probable that she was. And the witness Thompson also states that some time after the death of Roberts the girl became sick and was carried back to King’s for the purpose of being taken care of till she got well.

A change of possession, however, was not at all ^'essential to the validity of the deed, as between the parties. The deed was effectual to pass the title of the slaves; and if King continued in the uninterrupted possession of them (with the exception before adverted to), he did so with the acknowledgment on his part, written and recorded, that the property was no longer his, but belonged to another to whom he had sold and conveyed it. Even if Roberts had been of age, and in no wise connected -with King at the date of the sale, the legal relation between the parties, in respect to the property, established and shown by the deed, could not have been changed by King, except by some unequivocal act or declaration by him, known to Roberts, evincing a purpose to disregard the deed and to hold adversely to the title which it purported to convej’. But, in fact, at the date of the deed Roberts was a mere boy living with King; and instead of being a stranger, was his step son. King stood to him in the place of parent and guardian. At what time Roberts came of age is not shown; but it is stated in the answer of King and wife, that he continued to live with them till 1826, when he married and went to live on a part of the same plantation on which King • resided, then given him by the latter.

The near relationship between the parties and the kind feelings on the part of King towards Roberts still subsisting, as shown by the gift of the plantation, preclude all inference (if indeed any could otherwise legally arise), that the failure of Roberts to carry the slaves with him when he left King’s for his new home, and the continued possession of King, unaccompanied by any other act on the part of either, originated in any purpose with King to hold the slaves thereafter adversely to Roberts. The proofs in the cause have, I think, thus wholly failed in furnishing any starting point from which the-'running of the statute can be made to commence.

*The effort to base a defence on presumptions supposed to rise from the long continued possession of King has, I think, also failed. It is stated in the bill, and is not denied in the answer, that Roberts died in 1845. The subpoena was sued out in July 1846, and the bill filed at the August rules following. Allowing a reasonable time for the qualification of the administrator and the institution of the suit, the date of Roberts’ death would appear to be correctly stated: and if we throw out of the computation (as I think we may properly do,’for obvious reasons), the period between the date of the deed and the time when Roberts ceased to live with King in 1826, as stated in the answer, the possession of King on which it is sought to found the presumption, would fall short of twenty years; and looking at the relation in which the parties stood to each other, and the fact that one of the slaves was in the possession of Roberts for many years previous to his death, I should, without reference to the special averments in the answer of King and wife, be strongly disinclined to presume, from King’s possession, an abandonment by Roberts of the deed, or a repurchase by King of the slaves. But when we come to examine the answer, all the grounds for such a presumption (if any otherwise existed), are removed by its statements, and the pretensions on which . the defendants seek to rest their defence. The defence set up in the answer is not, that Roberts had resold or given back the slaves to King, or abandoned the right conferred by the contract of July 1817, and that the court ought so to presume from the long possession of King, but that the deed does not truty set forth the real contract and understanding of the parties to it. In their answer the defendants (King and wife) say, that Roberts, who is the son of Mrs. King by her first husband, was brought up by them. That King having no children, treated and considered Roberts as a son; *and having in 1817 concluded to give him the slaves Celia and her increase, after the death of himself and his wife, applied to David Ward, a neighbor, to draw an instrument to effect this object. That the bill of sale of the 22d July 1817 was accordingly prepared by Ward, who stated that he must have it recorded, and it would then give the negroes to Roberts after his King’s death. That knowing nothing o«f the legal effect of such instruments',, and having implicit confidence in the advice of Ward, who was a magistrate, he executed the instrument and had it recorded; but that his intention in doing so was only to bestow the slaves on Roberts after the death of himself and wife, and that he thought such was the effect of the paper drawn by Ward. That no consideration whatever passed- from Roberts to King (though three hundred dollars was stated in the instrument as the consideration), but that the transaction was, on King’s part, a mere voluntary act of kindness to á boy whom he had raised, and who was then in fact worth nothing whatever except a few things which he had previously given him. The answer proceeds to aver that Roberts understood the object of the instrument, and never claimed in his life time any interest in the slaves while the respondents should live. That he never had any possession under the deed, and claimed none. That he never exercised the slightest acts of ownership over them, and invariably asked the permission of the respondents when he needed the services of the slaves. In support of these averments, the only proof offered is the deposition of a single witness, who says that he had frequently heard Roberts say that King had given him a bill of sale ■ of the negroes in controversj’, and at his death he would own them all; and that he never spoke of them as his property, only at the death of King and (according to witness’s impression), at the death of Mrs. King also.

*By this loose proof and continued possession, the appellee seeks to contradict and change the plain terms and manifest legal effect of the instrument under which Roberts claims; and in effect, to substitute, in the place of a recorded deed purporting to convey for value a present and absolute property in the slaves,, a parol voluntary gift to be enjoyed only after the death of the donor.

Such a claim on the part of the appellee is in conflict with well established rules of evidence, and plainly at war with any de-fence in aid of which the law of presumption from long continued possession can be invoked.

I can perceive in the case no grounds for negativing the right of Mrs. Roberts to have her distributive share of the slaves in controversy with their increase; and think that the Circuit court ought, instead of dismissing her bill, to have entertained it and given the relief sought.

AEEEN and SAMUEES, Js., concurred with Judge Daniel.

MONCURE, J.,

concurred with Eee, J.

The decree was as follows:

The court is of opinion, that Mrs. Roberts is entitled to have distribution, as the wife of her deceased husband Richard T. Roberts, of the slaves with their increase, in the bill and proceedings mentioned; and that the decree of the 29th September 1848, dismissing her bill with costs, is therefore erroneous. The court is, ’ however, also of opinion that the estate of King ought not to be subjected to the payment of any hire for said slaves for the time he held possession of them, before the date of Roberts’ death; the court being satisfied, from the circumstances of the case, *that the possession of the slaves by King during the life of Roberts was with the permission of the latter, without accountability for hire.

Therefore, it is adjudged, ordered and decreed, that the said decree be reversed and annulled, and that the appellees pay to the appellant her costs by her about the prosecution of her appeal here expended. And the cause is remanded for proper accounts of the hires of said slaves, and all proper charges for their keeping to be taken, and for such other proceedings as may be necessary in order to a final decree.  