
    
      J. M. Alexander vs. John Burnet.
    
    B. J. executed and delivered to his sister, A. B. an instrument under seal, and in the form of a deed, whereby, in consideration of love and affection, and of one dollar to him paid, he gave, granted,, bargained and sold unto her and her heirs', forever, a negro boy, “ which said negro I bind myself, my executors, administrators, &c. forever, to defend in law and equity against all claim. It is dearly and simequivo-cally understood, that the aforesaid deed of gift is to be of no ejfe$ whatever, emtil I, ike aforesaid B. J. depart this life." At the time the instrument was executed the negro was delivered to A. B. who kept him about one year, and then returned him to B. J. who retained possession of him until his, B. J’s. death: — Held, that the instrument was valid as a deed, — that it conveyed a present title to the donee, with postponement of the right of possession until the donor’s death.
    It is no longer an open question, whether a man may not, by deed duly delivered as seick, give to another a negro, reserving to himself a life estate therein, provided that, by the operation of the deed, a present title passes to the donee, but the possession only is postponed to the death of the donor.
    In construing an instrument, effect should be given to every part of it, if the same can be done consistently with the rules of law.
    Plaintiff, a resident of Alabama, converted to his own use, in that State, a negro, the property of the defendant, a resident of South Carolina: plaintiff remained in possession twelve years in Alabama, when the negro left him and went to defendant in South Carolina, who retained him as his own: Held, that plaintiff’s possession in Alabama did not, under the statute of limitations, operate as a transfer or extinguishment of the defendant’s title to the negro in South Carolina.
    Statutes of limitation are no where considered as part of the lex bd: they are a part of the law of the forum where the action is tried.
    By the statute of Anne, of force in this State, if the defendant is absent from the State at the time the cause of action accrues, the plaintiff is allowed the time limited by our Act of 1712, within which to sue after the defendant’s return to this State.
    The provision of the statute of Anne applies as well to foreigners constantly residing abroad, as to citizens of this State temporarily absent.
    The return contemplated by the statute, must be such as enables the plaintiff, using due diligence, to sue; and, whether a return was of that character, is, it seems, a question of fact for the jury to decide.
    The same rule prevails in relation to personalty that prevails in relation to land, to wit, that possessions cannot be united so as to give title under the statute of limitations. Beadle vs. Hunter fy Garrett, 3 Strob. 331.
    Where both parties are residents of the same State, possession of personal property for the statutory period, not only bars the action but extinguishes or transfers the title; but where the possession is in one State and the owner resides in another, the possession does not extinguish or transfer the title, and bars the action only in the State where the possession is held.
    
      Before O’Neall, J. at Abbeville, Spring Term, 1851.
    Trover for the conversion of a mulatto man named Ail, otherwise called Caleb.
    Ail was born the property of Benjamin Johnson, a resident of Abbeville district, whose sister was the wife of the defendant, also a resident of the same district. Before the 13th June, 1831, Ail had been in the possession of Mrs. Burnet: on that day she took him to her brother’s, who executed and delivered to her an instrument in the following words, to wit:
    South Carolusta, Abbeville District.
    Know all men by these presents, that I, Benjamin Johnson, of the State and district aforesaid, for and in consideration of the love and affection I bear my sister, Anne Burnet, the wife of John Burnet, of the State and district aforesaid, and the further consideration of the sum of one dollar to me paid, the receipt is hereby acknowledged, have given, granted, bargained and sold unto my sister, Anne Burnet, a negro boy, aged about ten years, named Ail. To her and her heirs, which said negro I bind myself, my executors, administrators, &c. forever, to defend in law and equity against all claim.
    
      It is clearly and unequivocally understood, that the aforesaid deed of gift is to be of no effect whatever, until I, the aforesaid Benjamin Johnson, depart this life. In witness whereof, I have, this thirteenth day of June, in the year of our Lord 1831, set my hand and seal.
    Benjamin Johnson, [l. s. ]
    Witness — Nathaniel Cobb,
    Matilda Ann Strawhorn,
    Geo. Parker.
    At the time of the execution of this instrument, Ail was actually delivered to Mrs. Burnet, and one dollar, the consideration money mentioned therein, was paid. Mrs. Burnet- took Ail home with her, and retained possession of him about a year, when he returned to Benjamin Johnson’s, where he remained until the death of the latter, in December, 1836. The instrument was kept by Mrs. Burnet, but was never recorded.
    After the death of Benjamin Johnson, his widow told the defendant that Ail was there, and that she would not be responsible for him. Immediately after this, John Johnson, a son of Benjamin Johnson, carried Ail off at night, and sold him in South Carolina, in December, 1836, to one James Caldwell, who was then on his way to Alabama. This son intended to become the administrator of his father, but caught cold in taking Ail off, and soon after died: — another person, George Lomax, became the administrator. It was probable that the price received for Ail was returned by the administrator, as a part of the estate of Benjamin Johnson.
    
      James Caldwell took Ail to Alabama, and there, on the 12th January, 1837, in Maringo county, sold him to the plaintiff: he remained constantly in the plaintiff’s possession, until the last of October, 1849, when he escaped from him at Walker’s, within ten miles of Pendleton, South Carolina, and went to the defendant’s, who claimed him as his own, and refused to deliver him on demand to the plaintiff’s agent. The plaintiff having Ail (or Caleb as he was then called) in company with him, passed through South Carolina in 1837, 1841, 1844 and 1845, on his way to or from North Carolina; he, however, did not, in any of these trips, pass through Abbeville district, where the defendant resided.
    “ I thought, and so instructed the jury,” said his Honor in his report, “ that the plaintiff’s possession of the slave for upwards of twelve years entitled him to recover, unless its effect had, in some way, been removed. The deed or paper under which the defendant claimed, could not, I thought, in a Law Court, be sustained as to personalty, either as a will or testamentary paper: to be recognized as such, it was necessary it should have been proved and allowed in the Court of Ordinary. I instructed the jury, it might, under Jaggers vs. Estes, operate as a good deed, although I confess, had I been one of the majority who decided that case, I should have held that this paper could not, under it, operate as a deed. For this is to have “ no effect whatever,” till the death of the supposed grantor — but not knowing how far that case might be extended, I thought it best to hold that this paper, under its rule, was a good deed.
    “It was contended for the defendant, that the plaintiff’s long possession in Alabama woidd not divest the right-of the defendant here, a citizen of South Carolina. I thought otherwise.— There was a plain conversion in South Carolina of the slave twelve years before the defendant obtained possession: and this might, by possibility, bar the claim of defendant against the plaintiff. But I thought that the possession of the plaintiff, for more than the statutory period, in South Carolina, Alabama, or any where else, gave the plaintiff title, unless the defendant was able to show that the statute could not operate against him. The case of Smith vs. Mitchell, (Rice, 316) did not, it seemed to me, save the defendant. For although the plaintiff lived out of the State, ii did not follow that the defendant could claim against him as returning to the State. The statute 4 Anne, ch. 16, sec. 19, clearly contemplates a case against a citizen of the State abroad (the cause of action arising against him. while so abroad) and then upon his “return,” two years are allowed to assert the claim. The plaintiff was and is a citizen of, Alabama, and never has “returned” to South Carolina. The defendant, to recover, ought to have shewn that, by the law of Alabama, the plaintiff was not there protected as against him. The plaintiff had a verdict for the value of the slave and his hire, $1366 00.”
    The defendant appealed, and moved for a new trial, on the grounds,
    ■ 1. Because the title of the defendant to Ail, the negro in question, was shown by the deed of gift executed and delivered to his wife by her brother, Benjamin Johnson, deceased.
    2. Because the title of the defendant to the negro in question, was made out by the parol gift and delivery of the negro proved, independently of the deed of gift.
    3. Because the defendant having once had undoubted title, he has never been divested of that title by the operation of the statute of limitations or otherwise; and, it is respectfully submitted that his Honor erred, when he charged the jury that the plaintiff had a right to recover, and the only question for them was the amount of damages.
    The case was argued at May Term, 1851, by McGowen, for the appellant, and by Reed, Vandiver and Jones, for the appellee, (Wardlaw, J. absent) and was now, by order of the Court, re-argued by the same counsel.
    For the appellant, upon the question whether he had title under the instrument, the following authorities were cited. Jag-gers vs. Estes, 2 Strob. Eq. 343 ; 1 Sp. Eq. 256 ; 1 Rich. 170; 12 Eng. C. L. R. 359; 45 Eng. C. L. R. 663; Harp. 492 ; 4 McC. 198 ; 2 JB1. Com. 241; 4 Kent Com. 468; 1 P. Wms. 163; 2 Wilson, 22, 75; Willes, 673; Bacon Abr. Grant, 5, D; 2 Hill Eq. 560; Rice Eq. 260; 1 Rich. 172; 4 Des. 617; 3 Strob. Eq. 379; Wheeler vs. Durant, (3 Rich. Eq. 452). And on the question whether the plaintiff had acquired title under the statute of limitations, 3 Johns. R. 264; 1 Caines, 412; 21 Eng. C. L. R. 174; 22 lb. 113 ; 1 Johns. Cases, 139; 3 Caine’s Cases, 154; 7 Johns. R. 117; 2 Brev. Dig. 174; 3 Strob. 336; 5 Strob. 214; 13 East, 450; 5 B. & Ad. 204; 8 B. & C. 285; 13 Wen. 267: 4 Bing. 686; 1 Denio, 154; Rice, 324; 3 Hill, 346; 2 Bay, 339; 4 Bac. Abr. 479; 2 W. Bl. 723; 13 East, 439; Blanch, on Lim. 50 ; Ang. on Lim. 216, 218, 223; 10 Johns. R. 464; 7 Mass. R. 515; 11 Mete. 210; 16 Pick. 359; 14 Mass. R. 203; 17 lb. 180 ; 6 N. H. 556; 6 Tern. 127; 2 New J. 82 ; 5 Howard, (Miss. R.) 258; 8 Ala. 390; 3 Pike, 409 ; 9 Ham. 34; 3 McLean, 568; 2 Murph. 23 ; 1 Dev. 16; 1 Rich. 114; 1 Strob. 326; 19 Ter. 181; 3 Wils. 745; 4 Bac. Abr. 480; 8 Moore, 189; 1 Bing. 324; Wilk. on Lim. 22; 10 Shep. R. 15.6; 15 Ver. 727; 16 Pick. 359; 3 Mass. 271; 1 Pick. 263; Gill & Johns. 158.
    For the appellee were cited, 1 Shep. Touch. 88; 4 McC. 198; 1 Strob. Eq. 370, note; 1 lb. 343; 2 McC. 148; 1 Rich. Eq. 121; 1 Hill, 296; 1 Sp. 398; 11 Pick. 38; 3 Hill, 346 ; Clay’s Dig. 326; 3 Johns. R. 264; 10 Johns. R. 464; 1 Stew. Ala. R. 254; 17 Tes. 87; 5 Cranch, 358; Story de Confl. 972; 11 Wheat. 361.
   The opinion of the Court was delivered by

Evans, J.

Since the cases of Duke vs. Dyches, and Jaggers vs. Estes, (2 Strob. Eq. 343,) it is no longer an open question, whether a man may not, by deed duly delivered as such, give to another a negro, reserving to himself a life estate therein, provided that, by the operation of the deed, a present title passes to the donee, but the possession only is postponed to the death of the donor. This I take to be the result of the decisions in the cases referred to. There is no doubt that the written instrument in this case, conveyed to the defendant’s wife a title to the negro after the death of Benjamin Johnson, but if no title passed by it until after his death, then it would be a will, and unless proved and allowed as such, it cannot avail the defendant. To make it available to protect his conversion of the negro, the instrument must be supported as a deed, whereby the title passed from Johnson at its delivery, but subject to the right of possession and use during his life. The paper is in the following words, viz: — “ Know all men by these presents, that I, Benjamin Johnson, of the State and district aforesaid, for and in consideration of the love and affection I bear my sister, Anne Burnet, the wife of John Burnet, of the State and district aforesaid, and the further consideration of the sum of one dollar to me paid, the receipt is hereby acknowledged, have given, granted, bargained and sold, unto my sister, Anne Burnet, a negro boy, aged about ten years, named Ail; to her and her heirs, which said negro I bind myself, my executors, administrators, &c. forever to defend in law and equity against all claim. It is clearly and unequivocally understood that the aforesaid deed of gift is to be of no effect whatever, until I, the aforesaid Benjamin Johnson, depart this life.”

The question which first presents itself is, what did the donor mean? for that is to govern, if we can ascertain it. Did he intend to create a mere revocable' estate, a mere declaration of a present intention as to the person to whom Ail should belong after his death ? If he did, it is a will, which is of no avail until it has been proved and allowed in the proper Court. Or, did he intend to vest the present title irrevocably in his sister, but not intended to take effect in possession until after his death ? The form in which an act is done is not always material, and I will not undertake to say that this paper might not have been allowed as a will, although its form is that of a deed. I consider the form used in this case as important only so far as it is evidence of what was intended. What, then, are the evidences afforded by the paper itself, that the donor intended to convey a present estate in the negro. These are (1) The form is that which is usual in deeds; and the words, given, granted, bargained and sold, are those most appropriate to the office of a deed, and, except “ give,” are inappropriate to a will. (2) A money consideration is expressed in the deed, and was actually paid. I would not be understood as meaning that a nominal consideration of one dollar, would necessarily change the nature of the instrument, but it affords a very strong evidence that the conveyance was intended to be irrevocable. (3) It contains a covenant of warranty, such as is inconsistent with the idea that a will was intended. (4) The donor himself calls it a deed of gift. In general, men are supposed to understand the meaning of the words they use, and it would be rather unusual if we were to conclude that what a man calls a deed of gift he intended as a will. (6) It was delivered to the donee, and the negro actually delivered and remained in her possession for more than a year. These facts, if they stood alone, or almost any of them, would be sufficient to shew an intention to convey a full and clear title, if it were not for the words used in the concluding clause, viz : — “ It is clearly and unequivocally understood that the aforesaid deed of gift is to be of no effect whatever, until I, the aforesaid Benjamin Johnson, depart this life.” These words, some of my brethren think, shew an intention that no estate should vest in Mrs. Burnet, and convert the whole of what precedes them into a declaration that she was to have no estate whatever in the negro, until after the death of Benjamin Johnson ; or, in other words, that the paper is a testamentary disposition. My understanding of the rules of interpretation is, that every part is to have effect, if the same can be done consistently with the rules of law. Now what rule of law interferes so as to prevent us from giving to this paper, as a deed, the same construction as was given in Jaggers vs. Estes and Duke vs. Dyches, to vest a present title in Anne Burnet, subject to the right of Johnson to the use and enjoyment during his life ?

The words of restriction will thus have all the ffect which I suppose was intended, viz: — to reserve to himself the use and control during his life, and, until that event, was to have no effect so as to give any right of possession. To give it the effect of changing entirely the legal import of all the words which he had before used, would be a very strained and unnatural interpretation, such as is not required to give effect to any conceivable intention which he could have had, unless we suppose he was entirely ignorant of the meaning of words ; that when he said I have given, grantedi bargained and sold, he meant only I give and bequeath; 'when he said I warrant, he meant nothing ; when he said this ded of gift, he meant this will; or that he meant to vest no present title when he delivered the deed and the negro along with it; which were essential to a deed, but wholly unnecessary to a will. It may be as well, as there is a division of opinion in the Court, to notice some of the cases which have been decided. I will not undertake to say what would have been the effect of this deed forty years ago, when the cases of Cooper vs. Cooper, (2 Brev. 355) and Vernon vs. Inabnit, (Id. 411) were decided. Then the notion was, that an estate in a chattel was indivisible; nor how this deed would have been construed when Ingram vs. Porter was decided, where it was held that a reservation of a life estate in a deed was void because the habendum was inconsistent with the premises. In Ragsdale vs. Booker, reported in a note to Jaggers vs. Estes, (2 Strob. Eq. 348,) an instrument containing the words, “in consideration of natural affection, I give to omy above named children at my death, Spc. I only reserve my life in said negroes,” was held to be a will, because it did not profess to be delivered. The Court say, it wants some of the requisites of a deed. It was to remain the property of the donor, and was subject to his debts. It possessed all the essential ingredients of a will. In Duke vs. Dyches, the paper had the form of a deed, and purported to have been delivered. It was on natural affection alone. The operative words are, “ have given and granted and by these presents do give and grant, &c. to Esther Benson, her heirs, &c. to remain her right and property after the death of the said Moses Duke” (the grantor) “ or at any time previous thereto if the said Moses Duke should think fit to do so.” The only question discussed, in the opinion of the Court, was whether personal estate could be limited over, to take effect after a life estate, by deed. It was in form a deed and purported to have been delivered. It was not even argued that it was a will, but the question submitted was on its effect as a deed. The words in Jaggers vs. Estes are very much the same. In that case, the questions made were pretty much the same as in Duke vs. Dyches. The only doubt was whether it had been consummated by delivery, which was afterwards established by the verdict of a jury. I have seen no case where the instrument was in form a deed, accompanied by delivery, which has been construed into a will, although a life estate was reserved to the donor. The words, have given, granted, bargained and sold, purport to convey a present interest. They are the operative words of a bill of sale, and the donor so calls the instrument in which they are contained. It seems to me, therefore, that by construing the instrument as a deed, and giving to it the same effect as in Jaggers vs. Estes, we give effect to the donor’s intention, and efficacy to every part of the deed. The late case in the Court of Equity, of Wheeler vs. Durant, is not, according to my understanding, at variance with this decision. The question was, whether it was a will or a deed. There was nothing in its form or words, or the nature of the estate conveyed, which required any other construction than that it was a will, or testamentary paper, which was the interpretation put on it by the donor herself. We think, therefore, that the paper signed by Benjamin Johnson was a deed, and, as such, conveyed the negro Ail, to the defendant’s wife, and that he was guilty of no conversion, unless he had lost his title by the statute of limitations.

Statutes of limitations are no where considered as a part of the lex loci contractus. They are a part of the law of the forum where the action is tried. If, therefore, a citizen of Alabama sue in this State, his right to maintain his action must depend on our law, and he will be barred in five years, although, by the laws of his own, he might be allowed a longer or shorter period. Every government has a right to fix its own period of limitation, and if a foreigner bring an action in any State, he has no right to complain if the same rule is applied to him as to citizens. I had occasion to discuss, in the case of Pegram vs. Williams, (4 Rich. 219) what questions belong to the lex loci and what to the lex fori, and the cases of Levy vs. Boas, (2 Bail. 217,) and McElmoyle vs. Cohen, (13 Peters, 312,) are there referred to as establishing the proposition that the statutes of limitations are a part of the lex fori. Indeed, this proposition is universally admitted to be true. Judge Story says, the statute of limitations and prescriptions, there is no doubt, are questions affecting remedies, and not questions upon merits. Story de Confl. § 576, 577, 582. If, therefore, when Alexander brought the negro into this State, Burnet had sued him in trover, and Alexander had set up the statute of limitations as his de-fence, the enquiry would have been, is he barred by our Act ? This makes it necessary to enquire what our law is, relative to the limitation of actions of trover. By the Act of limitations, passed in 1712, if both parties are resident in the State, the action must be brought within four years from the time it accrued, but if the plaintiff was resident out of the State, he was allowed five years. This provided for the case of an absent plaintiff, but not for an absent defendant; but the statute of 4 Anne, c. 16, which was made of force at the same time the Act of 1712 was passed, provides that in case persons against whom any such actions shall accrue, shall be beyond seas, at the time such cause of action accrued, the persons entitled to such action may bring the same at any time after their return from beyond seas, so that the action be brought within the time limited. Now as Alexander was beyond the limits of this State (which means the same as beyond seas) when Burnet’s right of action against him accrued, the statute did not commence to run until his return to this State. This is clearly settled by the case of Smith vs. Mitchell, (Rice, 316). There is no avoiding this conclusion, unless one of the following propositions can be maintained, all of which the circuit Judge seems to have entertained from his report of the case: (1) That a right of action having accrued in this State to Burnet by the conversion of John Johnson and James Caldwell, under whom Alexander claimed, Burnet would be barred unless he brought his action within four years from the first conversion: (2) That the statute commenced to run when Alexander passed through the State in 1837, 1841, 1844 and 1845, although he was not in Abbeville where Burnet resided: (3) That Alexander’s possession in Alabama was a bar to Burnet’s title, who was a citizen of South Carolina, and not of Alabama. These questions I will discuss in their order.

1st. I suppose that as the conversion of John Johnson and Caldwell was in the State of South Carolin, and Burnet had a cause of action here, it may be that he would have been barred, as to them, on the doctrine that when once the statute begins to run, it is not arrested by any thing subsequent. But I do not see how this can help Alexander. By our law, every new conversion is a new cause of action. Burnet might hdve sued any one of them — and in such action would not be barred unless some one of them had been in possession long enough to give title. By our law, if the action was brought in this State, Alexander could not plead in bar that Burnet might have sued Johnson or Caldwell. It would not avail him that Burnet might but did not sue either of them. As Caldwell had no title to convey to him, he must rest on his own possession, which was in Alabama, and if this gives him no title here it will avail him nothing. You cannot connect possessions so as to give title under the statute. This was decided in the case of King vs. Smith, (Rice, 10), as to land, and in the case of Beadle vs. Hunter & Garrett, (3 Strob. 331), in relation to negroes. In this latter case it was held, that the possession of one who held adversely to the owner, could not be connected with that of the person to whom he afterwards sold, so as to complete the statutory bar. If Dollar’s conversion and possession could not avail his alienee, how can the possession and conversion of Johnson or Caldwell enure to the benefit of Alexander, their alienee ? It cannot, on any legal principles, be said that Burnet might have sued either of them, and, therefore, his action against Alexander is barred.

2d. It has been argued that the statute of Anne has no application to the case, because Alexander being a citizen of another State, cannot be said to have returned to the State; and, therefore, the statute must relate only to the case of citizens who are absent for a time and then return. This may be the literal import of the words, but where the words of a statute have received a uniform construction, it is always safe to adhere to it. In 6 Bac. Abr. 392, (Bouvier’s edition) it is said “ the exceptions in the statutes of James and Anne as to persons beyond seas are not confined to Englishmen who may occasionally go beyond seas, but is general, and extends to foreigners who are constantly resident abroad.” (3 Wil. 145.) This is clearly the English law, and the same construction, I believe, has been uniformly put on the same or similar words in most or all the States. The only exception which has been brought to our notice in the argument is the case of Cumming vs. Berry, (1 Rich. Eq. 114). I have looked carefully at that case, and my great respect for the venerable Judge who delivered the opinion in that case would incline me to adopt it, although it was without any authority to sustain it, if it had been a point in the case.. The controversy was about a fund in Charleston which was claimed by a creditor in Georgia on the one side, and certain persons resident in South Carolina on the other. Neither of them came within the words of the statute, and the observation by the Judge was incidentally made without argument or refers ence to the authorities, and, I presume, the assent of the other Judges was to the judgment of the Court, which did not depend on the correctness of the assertion.

Assuming, then, that Burnet might sue Alexander at any time within the period of limitation after his return to this State, the next question is, whether Alexander’s passing through this State in the manner and at the times stated in the report, was such a return as was contemplated by the statute. If it was, then the action is barred, because more than four years have elapsed before the bringing of this action. Some of the authorities on this point are as follows; 3 Mass. R. 271, White vs. Bailey: "A debtor’s return to this government from which the statute begins to run, must be such return as will enable the creditor, using due diligence, to arrest his body as security.” This is reaffirmed in 16 Pick. 359. Where a debt is contracted abroad, by a person resident out of the State, and the debtor afterwards comes into the State publicly, and so that the creditor, using reasonable and due means, might arrest, it is a return to the State within the meaning of the Act. 10 Johns. R. 464. In this case the Court say in addition, that the word return, applies as well to persons coming from abroad where they resided, as to citizens going abroad for temporary purposes. In a case in 8 Ala. R. 328, Ormond, J. says, — “the return from which the statute commences to run must be open, notorious and nor clandestine.” The whole current of authorities is in the same way. The only case which seems to the contrary, is the case of Faw vs. Roberdeau, (3 Cranch, 173. It seems that the law of Virginia is like the English statutes, and the saving of the right of actions applies as well to an absent plaintiff as an absent defendant. In this case, the plaintiff resided in Maryland, but he had been in Virginia for a temporary purpose more than the statutory period before he brought his action, and it was held that he was barred. By our law, and that of many of the States, there is no such saving in favor of a plaintiff resident abroad. There are many reasons for making such a distinction. There is no impediment in the way of the plaintiff’s suing. He knows where his debtor is; the law is open to him, and if he comes into the State and does not avail himself of it, it is his own fault. The same reason allies if the defendant comes openly into the State, although for a temporary purpose, if, with due diligence, he might have sued. The reason why he is not barred is, because he could not have brought his action. Whether Burnet might have sued Alexander when he thus passed through the state, is a question of fact which must be decided by a jury.

3d. It seems, from the report, that the circuit Court charged the jury that the plaintiff's possession in South Carolina or Alabama, or any where else, gave him a title, unless the defendant could shew that the statute did not operale on him. If by the statute is meant the statute of this State, I think that was abundantly shewn by the saving of his right by the statute of Anne, as expounded in Smith vs. Mitchell. If the Alabama statute be meant, then, as the defendant claimed under it, it was on him to shew, not only what the statute was, but that he had a good title to the negro under it. No evidence of what the Alabama statute was, was given on the trial. In this Court we have been referred to Clay's digest, but I have not examined it, as in the view taken by a majority of the Court, it is immaterial what are its provisions. The proposition set out in the charge is, that possession in Alabama for six years, which, it is said, is the time of limitation there, will give the possessor title, not only in Alabama but in the State of South Carolina and every where else.— If, as I suppose, the statutes of limitations be merely a part of the law of the forum, — if they be, as the authorities say, of merely territorial operation, affecting remedies and not merits, as Judge Story says, it is difficult for my mind to conceive how they can operate on a citizen of another government, so as not only to take away his remedy in Alabama, but also his title to his property in South Carolina. If any such proposition has ever been sustained, I have not seen the case. The case of Brent vs. Chapman, (5 Cranch, 358,) is quoted as authority on that point. The proposition declared in that case is, that five years possession of a slave in Virginia gives a good title upon which trespass may be maintained. But the facts of the case shew that all the parties were resident in Virginia, and that the case only affirms what I do not doubt, that between citizens or residents of the same State, a possession for the whole period of limitation will not only operate as a bar to the remedy, but as an extinguishment or transfer of the title. We speak familiarly of a title by the statute of limitations, and are accustomed, to say that a title under the statute is as good a title as a deed,- arid one that will sustain an action as well as any other title. If Caldwell had had possession of the negro four years in this State, and had then carried him to Alabama and sold him to Alexander, his title would have been as good as if Burnet had sold and conveyed him. The reason is obvious; as between citizens of the same State the statute operates as a divesture and transfer of the title. But as between citizens of different States, there is no authority or reason for saying that any thing more than the remedy is. taken away. In Story de Confl. § 582, the following proposition is stated; suppose the statute of limitations of a particular country does not only extinguish the remedy but the claim or title itself, and declare it a nullity after the lapse of the prescribed time, and the persons aie resident within the jurisdiction all that period, so that it has actually operated on the case, may not such statute be set up in any other country to which the parties may remove, by way of extinguishment or transfer of the claim or title.” The authorities quoted are, Shelby vs. Guy, (11 Wheat. 361); Brent vs. Chapman, (5 Cranch, 358,) and another case from Henning & Munford’s reports. The case of Shelby vs. Guy, was an action to recover slaves in the State of Tennessee. Shelby claimed under one T. T. G. who had possession long enough to give him a title by the laws of Virginia, where he, and those under whom Guy claimed, resided. After the title was thus perfected under the laws of Virginia, T. T. G. sold the negro to Shelby. It was held that Shelby’s title was good, because it was perfected in Virginia before the slaves were carried to Tennessee. It will be observed that Story does not state this as clear and settled law, but states it hypothetically and on the supposition that the statute to have this effect, should not only take away the remedy, but extinguish the claim or title, and declare it void after the lapse of the prescribed time. The cases quoted are all Virginia cases, and I have had no means of knowing whether the Virginia statute is of the description above stated. Our statute professes only to take away the remedy, but we have construed it to transfer the title after the expiration of the prescribed period, where both parties reside in the State. We have no case or authority to say the same where the possession is altogether in another State. The only case in which the question was as to the effect of possession in another State upon rights in this State, is the case of Richards vs. Towles, (3 Hill, 346). The negro, in that case, was subject to the lien of an execution in this State; he was carried to Georgia, where he was kept seven or eight years; he came back to this State and was seized and sold by the defendant, under the execution, and it was decided that the possession in Georgia did not bar the lien in this State. That case is not decisive of this, as it might have been decided on the ground that the lien .could not reach the slave in Georgia, but it shews at least that bare possession in another State does not give title as against one having a hen in this State. By our laws, a lien is so far considered a title that it is barred by the statute of limitation^ as any other title is barred. When the title is perfected by the laws of the State where both reside, the case is then to be decided by the lex loci, and no longer belongs to the lex fori. ' What is called the comity of nations requires of us in such cases, to give it the same effect as is given to it by the laws of the Slate to which both parties owe allegiance, but it does not require any thing more. A majority of this Court are of opinion that, upon the evidence at the trial, the plaintiff w.as not entitled to recover, and the motion for a new trial is granted.

Wardlaw, Frost and WhitNer, JJ. concurred.

O’Neall, J.

dissenting. The importance of this case must be my excuse for delivering a dissenting opinion. In a case which is to be leading, and to constitute something like a landmark for the profession, it is, (I think ) a duty, which I owe to the fruits of a life of labor, as well as to the parties, and the country, that I should also, in the beautiful language of the inspired Elihu, “ sheio my opinion

In the first place, I propose to state briefly the reasons why I think the paper called a deed in this case is void. The case of Jaggers vs. Estes, in the Court of Errors, (2 Strob. Eq. 343,) carried the doctrine of a future estate in chattels personal, as far as prudence can certainly desire to go. Indeed, it seemed to me then, and still does, that that case at one blow struck down every mark which had before been placed to guide us and the profession, in deciding as to the validity of papers attempting to convey such estates. It, however, .settled the law, as far as it goes, and I shall be the last person to fail to enforce it: but I would not go a hair's breadth beyond it.

That case declares the judgment of the majority to be, “ if it appears, from the construction of the whole instrument, that the donor intended to do an irrevocable act, and to pass a present title to the property, deferring only the enjoyment of the donee to the period of his” (the donor’s) “ death, then it is to be considered as a deed, and will have operation as such, and the remainder to the donee will be valid and take effect in possession according to the provisions of the deed, provided, always, that the instrument be duly delivered.”

According to the rule of that case, this paper never can' have effect as a deed. Its words are: — “ It is clearly understood that the aforesaid deed of gift is to be of no effect whatever, until I, the aforesaid Benjamin Johnson, depart this life.” Can a deed, which is to have no effect whatever, till the donor’s death, pass a present title ? It would be strange to say so against the express words, and yet, that is what the Court undertakes to do in the present case.

It is supposed, that like the deed in Kinsler vs. Clark, (1 Rich. 170,) this deed may be construed to be a covenant to stand seized to the use of the donor for life, and after his death to the use of the donee. That words giving a future estate in land may be so construed, has, unfortunately, the sanction of that case, but what lawyer has heard of a deed to stand seized to uses in personalty 1 I think it would be a strange anomaly to so rule in a law Court, and, I trust, Equity will never venture on such a flight.

The rule that'a deed, like any other instrument, is to be construed by all its parts, taken together, is now too well settled to be at all affected by referring to the old technical rule, that the previous part of a formal deed must prevail.

Taking this paper altogether, the plain reading is, that although past words, “have given, granted, bargained and sold,” are used, yet, they are used in a sense subordinate to that which the words heretofore cited import, and are qualified by them, so that they are to have no effect at all, until the donor’s death.

That one dollar is stated to have been paid, cannot affect the case : it was merely a nominal consideration, and the voluntary character of the transaction still remains. So, too, that the boy was delivered cannot have any effect j the delivery, construed by the words of the paper, is to take effect at the donor’s death. Fortunately for the country, the Court of Equity has, at this term, held, that a verbal gift, to take effect at the donor’s death, is void. Miller vs. Anderson; Busby vs. Byrd. It is true, this is only adhering to Pitts vs. Mangum, (2 Bail. 588,) still it is consoling to find that the doctrine of Jaggers vs. Estes has not overwhelmed that case, and all which have followed it.— For I frankly confess, if Jaggers vs. Estes be law, I do not perceive any reason to have stopped the progression, until future parol gifts had been declared to be good. Taking them to be void, how can a deed, which is in place of an actual delivery, have any other or greater effect than it could have?

The case of Wheeler vs. Durant, decided by the Court of Appeals in Equity at the last May Sittings, very properly (as I have endeavored to do) refused to carry the case of Jaggers vs. Estes beyond the point decided. There the paper, by present words, “ I give,” proceeded to give sundry articles of personal property to the grand-children and children of the donor, and after appointing trustees, winds up by saying, “ with the full understanding, that the above property does not vest in another of the (probably any of the) parties until my death.” This was held to be no deed: no present title to the property being given.

How that case can be distinguished from this, is more than I can conceive. Leaving this for my more astute and learned brethren to accomplish, if they can, I dismiss this part of the case by declaring that, in my judgment, the paper, set up as a deed, is no deed, and cannot have effect as such.

It is next necessary to consider whether, conceding this paper may be regarded as a deed, is not the plaintiff entitled to recover ? The plaintiff was for twelve years possessed of the slave, under a purchase in Alabama. Title to personal property does not lie like real, in grant: possession is title. The plaintiff ’s possession is enough for him, until the defendant can defeat its effect. Conceding his deed to be good, it shews that twenty years ago, he had title. In 1836, fifteen years ago, he had the right to the possession. Two years ago, he obtained possession of the slave. So that for thirteen years he had lost possession, and for twelve of those years, the plaintiff had possession. Does this shewing defeat the plaintiff? I am clear it does not.

On the circuit, the statute of limitations of Alabama was not before me. Here, I have had access to it, in the Legislative Library. The 1st sec. of the Act of 2d February, 1802, provides, that all actions of trespass quare clausum fregit, all actions of trespass, detinue, trover and replevin for taking away goods and chattels, all actions of debt founded upon any lending, or contract without specialty,- or for arrearages of rent due on a parol demise, and all actions of account, and upon the case, except actions for slander, and except, also, such as concern the trade of merchandize between merchant and merchant, their factors or agents, shall be commenced within six years next after the cause of such actions shall have accrued, and not after. There is no exception, in the statute, in favor of non-resident plaintiffs. If, therefore, the defendant was now suing in Alabama, it is plain he could not recover the slave: he would be twice barred by the statute of limitations. Is he in any better condition here 1 I am clear he is not. I never was so far behind all knowledge of my profession, as to suppose, that the statute of limitations of Alabama, as a plea, or defence to an action, could be set up in South Carolina. I very well know that the statute of limitations is in such cases the lex fori. But in personal property, possession for the statutory period, in Alabama, is title. It operates to vest in the person the title of each and all who had title, and who were under no disability to assert it. It is in this point of view that I ruled on the circuit, and repeat here, that the plaintiff's possession of twelve years, in Alabama, was and is title to the slave. The case of Brent vs. Chapman, (5 Cranch, 358,) is conclusive authority on this point. Looking at this case, in this way, the statute of Anne suspending the statute of limitations as to absent defendants until they return into the State, had nothing to do with the case : but, as on circuit I expressed the opinion, that it clearly contemplated “ a case against a citizen abroad, (the cause of action arising against him while so abroad) and then upon his return,” the action might be brought in two years, and that, therefore, it did not apply to the plaintiff, who never resided within the State, I am gratified to find that my ruling is in conformity to that of such distinguished jurists as Chancellors David Johnson, Harper, Johnston and Dunkin, in Cumming vs. Berry, (1 Rich. Eq. 114).

Having thus stated my views, I have performed all which I desired to do; and have only to add that, on some other occasion, and at some future time, it will (I hope) be found that I am not so greatly in error in this case, as its decision now assumes.

Withers, J.

I concur in so much of the dissenting opinion my brother O’Neall, as holds the instrument of writing, upon which the defendant bases his title, to be no deed. If it be not a will, I think it should be pronounced void, by reason of an irreconcileable repugnance in its provisions. I do not consider this portion of the case ruled by Jaggers vs. Estes. The transaction between Benjamin Johnson and his sister, Mrs. Burnet, I think was unreal — and that, if the donor, Johnson, had been called upon to render his estate, under ca. sa. it would have been so adjudged.

Whether the plaintiff would be helped by considering the title to the negro in the representatives of Johnson, I am not called upon to adjudge.

Motion granted. 
      
       3 Rich. Eq. 452.
     