
    
      Henry S. Beadle v. Hunter & Garrett.
    
    In an action of trover, the possession of one who claimed adversely to the true owner, cannot be linked with the possession of a party to whom he afterwards sold, so as to make out time enough to complete the bar of the statute.
    
      Before O’Neall, J. at Laurens, Spring Term, 1848.
    This was an action of trover, brought by the plaintiff against the defendants, by their proper names, for the recovery of damages, for the consideration of six slaves, viz: Sally, Eliza, Lindy, Edward, Hetty and George.
    The defendants were trading in slaves, and bought those in dispute, from one William Dollar, under whom the plaintiff claimed.
    The plaintiff’s wife, Rhoda, is a sister of William Dollar. She and her husband have an only child, a son.
    
    The deed, under which the plaintiff claims, was executed some time before the sale to the defendants. It bears date the loth of Sept., 1841; and was proved the 16th of Septr., 1841, and was recorded in the Register’s office, for the district of Laurens, about the same time. It purports to be executed in consideration of the natural love, good will, and affection, which “ I, (William Dollar,) bear unto my sifter, Rhoda Bea-die, as well as one dollar to me in hand paid, by the said Rhoda Beadle,” and conveys, “ unto the said Rhoda Beadle, an<^ heirs of her body, one negro woman, by the name of Sail, with her future increase; also, one girl, by the name of Patsey, one boy Sam, one*girl Eliza, one girl IAndy, and one boy Edward, during my natural life, and at my death, it is my wish my sister Rhoda Beadle should give unto my brother, Reuben Dollar, two negroes, viz : Patsey and Samuel, to have and to hold; the same during his natural life then to go to his children forever; the said negroes are to go into possession of my sister and her husband, during my natural life, in consideration of which, the said Henry S. Beadle and Rhoda, are to give me a decent support. I also give unto my sister Rhoda, one horse, my stock of cows, and my stock of hogs, to have and to hold the said named property, above described, unto the said Henry S. Beadle and Rhoda Beadle, their heirs, executors, administrators and assigns, forever; and I, William Dollar, for myself, my heirs, executors, administrators and assigns, do give the above named negroes to the said Henry S. Beadle and wife, and at their death it is to go to the heirs of my sister Rhoda’s body, after giving to Reuben Dollar, or children, in the event of his death, the two negroes, viz: Patsey and Samuel, unto them, their heirs and assigns, and against every other person claiming or to claim the same, or any part thereof.”
    The execution of this deed was proved by James S. Rogers, (who drew it,) and Robinson Osborn, the two subscribing witnesses. They both concurred in saying that it was perfectly understood by Dollar, who was hard of hearing. The deed was read to him three times — he then took it, saying he would read it himself; after apparently reading it over, he executed it, and told the witness (Rogers,) “ it was according to his wish,” — “ he, (Rogers,) the grantor, (Dollar) said, “ knew that when he (Dollar,) bought the negro woman Sail,” (the mother of the three negroes conveyed, and now in dispute,) “ he (Dollar,) intended to give her and her children to Henry and Rhoda.” After the deed was executed, he told Beadle to bring the negroes home, and set them to work. Five days after the execution of the deed, viz: 20th Sept., 1841, Mr. Young, at the request of William Dollar, drew a paper, which recited the deed, and that Beadle, at the request of Dollar, had consented to leave the negroes in his possession, wherefore Dollar agreed to hold the said negroes until called for by the said Beadle. This paper was executed by Dollar, and delivered to Beadle, in the presence of Osborn, one of the witnesses to the deed. It was evident from the testimony of Esq. Franks, one of the defendant’s witnesses, that Beadle offered to Dollar to maintain him as long as he lived — that he desired him to come and live with him, and that he (witness,) recommended him to do so. Dollar, soon after the execution of these papers, became dissatisfied, in-t sisted he had been deceived, that hé only intended to execute a will, and that it was intended to protect him against a claim for rent, which he supposed one Crumpton, who had married one of his father’s heirs, would make against him. The proof, in reference to these matters, need not be reported. The defendants had the full benefit of it before the jury, and their appeal makes no question upon it. Dollar sold the slaves, now in dispute, in 1843, to defendants, for $700 — they carried them off, and sold them. They were proved at the time the defendants bought, to have been worth, at the very least, $1,325. The plaintiff’s claim under the deed was very generally known in the neighborhood where they (the defendants) lived. One of the defendants, Garrett, told a witness, that before he and Hunter bought, they examined the deed on record in the Clerk’s (the Register’s,) office, and took counsel upon it, and were advised that they could buy without danger.
    It appeared that the woman Sail, in 1830, was conveyed to William Dollar and his mother jointly. Oiu the back of the bill of sale was an instrument signed by Mrs. Dollar, and perhaps by William also, stating that of the consideration paid for the woman; William Dollar paid $311, and Mrs. Dollar $39 — and that in the proportion of these sum,s, was to be their respective interest.
    About 1835, in the lifetime of his mother, William Dollar sold a child of Sail, about 3 years of age, to this plaintiff. He sold, before he sold to the defendants, another of her children, perhaps Patsey. The mother, Mrs. Dollar, died, and Esq. Franks, as her executor, in 1842, set on foot proceedings to obtain her interest in the slave. After Dollar sold to the defendants, he paid to the executor, Tranks, her interest, 1-8 or 1-9, in the woman Sail, and her family, including the two previously sold. It amounted to $260.
    The plaintiff’s suit was commenced the 20th of Feb., ’46.
    The jury were told, that whatever interest Rhoda Beadle took, under the deed, was a legal estate, and vested in the husband, jure mariti. Whether she took an absolute estate, or an estate for life, with remainder to her children, as the heirs of her body, did not seem essential to be now considered. That, however, on the authority of Hinson v. Pickett, and various other cases, the limitation to the heirs of the body would be too remote, and that the first taker would take an absolute estate.
    One of the grounds of defence before the jury was, that the grantor did not understand the nature of the act which he did, when he executed the deed. On this question of fact, inter alia, the jury were referred to the grantor’s declarations (before the execution of the deed,) to Rogers, and Robert ^ pranji;s¡ that; he intended to give the property to Mrs. Beadle, as evidence which might possibly satisfy them that the deed was the result of his own free will, and fully understood by him, and therefore, bona fide.
    
    4 McC. 198.
    3 McCord 4ii,°r ’
    The jury were told, that there were no formal parts in this case, such as the premises and habendum, as in Ingram v. Porter. That this was a very inartificial paper — that the donor’s intention was to be gathered fr,om all its parts — and taking them all together, it was plain that the donor intended to give, and had given, a present vested interest in the slaves in dispute, to Rhoda Beadle and the heirs of her body. The proof very clearly showed an offer by the plaintiff to maintain the grantor, if that were necessary to the vesting of the plaintiff’s rights.
    The jury were told, it was true, that by the deed conveying Sail to Dollar and his mother, jointly, Dollar had only a legal estate of one moiety, yet, as the instrument, on the back, showed that the mother had, in fact, only an interest in proportion to the sum she paid, which in Equity would have so controlled and reduced her legal estate; and as that interest had been ascertained, and had been extinguished by William Dollar, (subsequent, it was true, to the execution of his deed to the plaintiff’s wife,) such extinguishment would enure to the benefit of the plaintiff, and make the deed good, for the whole estate in the slaves. The case of Garey v. Reeder, (rePortec^ under the title of Reeder ads. Craig,) and several other cases, were referred to, as illustrating, and maintaining that position. The jury were, however, told, if they found for the plaintiff to deduct from the value of the slaves the sum paid by Dollar, in extinguishment of his mother’s claim.
    It was said to the jury, that if Dollar owed any debt at the execution, of the deed, for the payment of which it would be'necessary to sell the property now in dispute, then in that case, the deed could not have effect, and must be set aside, as fraudulent. But they were told there was no such debt — that he was not indebted to his mother, that she had an interest in the property.
    The jury were told that if Dollar had been the defendant, it.might be, that notwithstanding his acknowledgment of the 20th of Sept., 1841, he would set up the statute of limitations. For he certainly asserted an adverse claim to the property, and that too, within the knowledge of the plaintiff, very soon afterwards, certainly before the end of 1841. From that time, four years would have expired before suit brought. But he was not the defendant, and the question was, whether the statute would protect the present defendants. They got possession in 1843 — the bar of the statute, four years, was not complete when the suit was brought, February, 1846. They could not connect their possession with that of Dollar, so that by linking one with the other, the statutory period could be, made out.
    The jury were told that as the defendants were partners in the purchase and sale of the negroes, the declaration of one, that they had examined the record of the deed in the Register’s office, and had taken legal advice upon it, before they bought, was evidence of such explicit notice to both, as would make the deed have effect against them, notwithstanding it was not legally recorded.
    The case upon the facts, was fully and fairly submitted to the jury, and they found for the plaintiff, a very moderate verdict, predicated upon a very low valuation of the negroes, deducting therefrom Mrs. Dollar’s interest, ($260 or $265.)
    The defendants appealed and moved for a new trial.
    1. Because under the deed the plaintiff’s wife only took a life estate in the property conveyed by it, and his Honor erred in charging the jury that an absolute estate passed.
    2. Because his Honor charged that the parol evidence of the declarations of the donor, made before the execution of the dSed, as to his intention of conveying the property, would show that an absolute estate passed under the deed — though such evidence is not consistent with the legal effect of the deed.
    3. Because he charged that the first clause in the deed would not control the subsequent clauses, which were inconsistent with it.
    4. Because the possession, from the terms of the deed, was to be in the plaintiff, on condition that he gave the donor a decent support during life — which was a condition precedent to vesting an absolute estate.
    5. Because the negroes were sold to make a division, and inasmuch as $265 went to extinguish the interest of the mother of the donor, in said property, the sale to the defendants, for valuable consideration, was good against a voluntary deed to plaintiff’s wife.
    6. Because only one-half of the legal estate in the negroes in dispute was in the donor, when he made the deed, and the plaintiff, at most, could only acquire a right to that extent — and his Honor should have so charged.
    7. Because it was in evidence that the donor, William Dollar, had sold two negroes, wherein the estate of Sarah Dollar was entitled to an interest, before the sale of the negroes to defendants — and his Honor was’wrong in charging the jury that Wm. Dollar owed no debt at the time of the sale.
    8. Because his Honor charged the jury that the statute of limitations would not protect the defendants — though the possession was adverse, for more than four years, to the plaintiff’s claim.
    
      Rice, 10.
    ¿3 is m P. L. 102.
    9. Because his Honor charged the jury that notice to one of the defendants would be notice to both — though the action is for a tort.
    10. Because the finding, from the case made by the evidence, should have been for defendants — and his Honor erred in charging that the plaintiff was entitled to recover.
    
      Perry & Irby, for the motion.
    
      Sullivan, contra.
   O’Neall, J.

delivered the opinion of the Court.

This Court is satisfied with the ruling of the Judge below, on all the points made in the case, and generally for the reasons which he has given.

The only matter on which it seems to be necessary to expand his views, is in reference to the statute of limitations.

The case of King v. Smith is full to the point, that possessions short of the statutory period cannot be linked together, so as to make out time enough to complete the bar of the statute, in an action for the recovery of land. I know no reason why there should be a difference in relation to.person-cilty. It is true, a difference between personal and reaTestate has been recognised, as to the protection which the infancy of some of the parties gives to the others. But I regret that such a distinction was ever made. True policy requires that there should be no difference between real and personal estate. This is especially the case in this State, where personal property is often so much more valuable than land. Indeed every day’s experience satisfies me, that land and slaves should be placed upon the same footing, in every respect.

But our statute places the matter, when its words are attended to, out of dispute. The action of trover is to be brought “ within four years next after the cause of such action, or suit, and not after.” The plea is “ actio non accrevit infra quatuor annos.” When did the plaintiff have cause of action against the defendants 1 — -Certainly not until he demanded from them the slaves, or they had used or sold them. If he had sued them, and relied upon the conversion by Dollar, in the sale of them, he would have been nonsuited. For Dollar’s conversion would not have been their’s. This is decisive of the question, when did the statute begin to run ? Again, suppose Dollar had converted the slaves one year before he sola to defendant, that gave him no title, and his conveyance could not confer any title to the defendants. They stood in relation to the plaintiff, and his property thus coming into their possession, as mere tort feasors, without title. There is therefore no possible mode by which they can be benefitted by Dollar’s possession, after he had informed the plaintiff that he claimed against, and not under him.

It is possible, and even probable, if Dollar had retained possession four years after such notice, that the statute would have protected him; and then, if he had sold to the defendants, his possession would have protected them. For then it would have been title — a title conferred by law from the lapse of time: — and to have the benefit of it, it, would not have been necessary for the defendants to plead the statute. It could have been given in evidence under the general issue. The motion for a new trial is dismissed.

The whole Court concurred.

Motion refused.  