
    Blakey v. Newby’s Administrators.
    Decided, Jan. 27, 1818.
    1. Husband and Wife — Rights of Husband — Administrator — Case at Bar. — A plaintiff suing for slaves as administrator of his Wife, is not barred by a decision against him, in her life time, in a suit to which she was not a party; the ground of that decision having been that, under the Act of Limitations, the opposite party had obtained a legal title to the slaves by five years possession commencing during the overture; during which also the right of the Wife accrued; and the husband having never had possession in his character as husband.
    2. Executors — Executor Husband of Legatee — Possession of Legacy by Executor — Effect.—If slaves specifically bequeathed, be in the possession of a person who is at the same time executor of the testator and husband of a legatee, such possession will enure to him in the character of executor only, unless there be some election, or some act indicative of an intention to take, in the character of husband; especially, where the bequest is to several legatees iointly, and no division among them has taken place.
    After the decision of this Court, in the case of Newby’s administrators v. Blakey, 3 H. & M. 66, a bill in equity was filed, against the said administrators, by John Chowning, and Catharine his wife who was formerly Catharine Chowning, Buey Street who was Buey Chowning, and Churchill Blakey administrator of his deceased wife Anne, who was Anne Chown-ing, all daughters and devisees of William Chowning the elder, to recover the slaves of which Oswald Newby was possessed in right of his wife Catharine, legatee of her aunt Elizabeth Chowning and heiress of her sister Anne C. Taylor, and which the Court of Appeals, in the case aforesaid *'had adjudged to the said administrators. The Bill stated that the slaves in question were improperly bequeathed by Elizabeth Chowning; because, at her death without issue, they belonged to the plaintiffs, by virtue of the Will of William Chowning; the plaintiffs Catharine and Buey, and the deceased Anne, having survived the said Elizabeth, and all being married at the time of her death ; but that his executors, being misled by erroneous advice of Counsel, gave them up to her legatees, Anne C. Taylor, and Catharine Taylor, who afterwards married Oswald Newby: — that, after the death of the said Catharine Taylor, Churchill Blakey, one of the complainants, as executor of William Chowning, and in right of his wife Anne and her sisters, made a demand of the slaves from the said Newby, and was about to commence a suit for them, which suit was prevented by a compromise or special agreement, that, if the claimants would not bring suit, but permit him to hold the said slaves during his life, he would, by a last Will, bequeath them to the complainants, to be divided according to the Will of William Chown-ing; that, by virtue of the said compromise the slaves remained with Oswald Newby during his life; and the Complainants understood and believed that, in fact, he left a Will made in conformity therewith, which, after his death, was fraudulently concealed or destroyed: — that the case agreed in Newby’s administrators v. Blakey, was defective in not setting forth all the points involving the merits of the cause; particularly, the important facts, of the agreement or compromise aforesaid, and coverture of some of the Complainants.
    The prayer of the Bill was, for an Injunction restraining the defendants from selling or distributing the slaves, and for general relief.
    Newby’s administrators, filed separate answers, but, in general, to the same effect; denying all knowledge of the compromise alledged, or that he left a Will; and claiming the slaves, which they believed were taken from their possession in an improper and illegal manner. Pritchard Newby, one of them, admitted that William Chowning’s legatees remained in possession of their legacies with the *assent of his executors; but the respondent knew not whether they claimed title under the Will, or under the gift which was said to have been previously made by the said William Chown-ing.
    
    Sundry depositions were taken, shewing probably, that the compromise stated in the Bill was actually agreed upon, and that Oswald Newby, in pursuance thereof made a Will, which was destroyed by his mother; that one of the slaves, a negro boy, was sent to John Chowning’s, in Newby’s life time, as a nurse, and stayed there twelve months, and then was carried back to see the said boy’s mother at Newby’s plantation; shortly after which, the said Newby died; and then all the said slaves absconded, and went to Churchill Blakey.
    The proceedings in the suit at common law, of Newby’s administrators v. Blakey, were an exhibit in the cause.
    Chancellor Nelson dismissed the Bill as to tne plaintiff Blakey, and decreed in favour of the other plaintiffs for their respective proportions; being of opinion, “that the limitation over of the slaves mentioned in the bequest from William Chown-ing deceased to his daughter to Elizabeth, was not too remote; and, upon the death of the said Elizabeth, “without leaving issue, then” the said slaves became the property of, and should have been equally divided among, the surviving daughters of the said William; and that Catharine Taylor, (who intermarried with Oswald Newby deceased) and Anne C. Taylor, derived no title to the slaves bequeathed to them by Elizabeth Chowning; she having no right to devise them ; that the rights ■of Catharine Chowning and Lucy Street, in the said slaves, survived to them, as to their respective interests therein, upon the deaths of their husbands, which rights were protected from the effect of the act of limitation, or of length of time, by their coverture; but that Churchill Blakey lost the interest, which he was entitled to in the said slaves in Tight of his wife, upon the principles and for the reasons stated in the report of the case in the Court of Appeals.”
    Prom this Decree, Blakey appealed.
    Wickham for the appellant.
    This case now comes up, on an appeal from a decree in Chancery; and is totally different in facts and principles from that formerly before this Court. There was no evidence of the special agreement in that case; and if such evidence had been adduced, it could not have availed at law.
    The following points arc relied upon by the appellant;
    1. That the Act of Limitations is no bar to the recover}' of Mrs. Blakey’s share:
    2. That the decision in Newby’s administrators v. Blakey is no bar, nor even a precedent against him, suing as her administrator:
    3. That a Court of Equity ought to decree a specific execution of Newby’s agreement, that the negroes should be given up at his death.
    First, the act of Limitations is no bar. The assent of William Chowning’s executors to the bequest to Elizabeth Chown ing thq tenant for life, enured to the benefit of those in remainder,  who, at her death, had the right to take possession without intervention of the Executors. Blakey’s right as administrator of his Wife, never accrued until the death of the latter : his surviving her gave him nothing in his own right, but only as her administrator. If she has owed debts to the full value, the property would have been liable for it in his hands. A husband representing his wife is, according to clear principles of law, not barred by the act of Limitations. He sues in her right: — she, during the coverture, was protected by the saving in the Act. If she had survived him, her right would certainly have been saved. — Surely, his surviving her does not prevent her estate from having the same benefit.
    Besides, the act is not pleaded. It may be said that in detinue this is not necessary ; but whether such be the law, is questionable. In 1 Saund. 283, note 2, Duppa *v. Mayo, Serjeant Williams says, that, in his opinion, a party relying on the Act ought in all cases to plead it.
    2. Mrs. Blakey was no party to the suit at common law; nor was her right affected by it. The record in that suit could not be given in evidence against her; and though it is inserted as an exhibit in this cause, it is to be considered according to its legal effect only. Suppose Blakey had afterwards bought the slaves of Newby, would the former decision be a bar to a claim founded on this new title? — But, if the judgment be a bar at law, it is not, in equity; for the slaves were delivered by mistake, and therefore relief ought to be given.
    3. The special agreement was obligatory, for the consideration was sufficient,  The only question is whether, iri point of fact, the agreement be proved. It is in proof that Blakey strictly complied with it’s terms on his part, by refraining to bring the suit in Newby’s life time. It may be said, that he might have sued at law after Newby’s death, the bar of the Act of Limitations being done away: — but he never could have sued for the slaves at law, though his wife might, if she had survived him. Detinue would not lie in his favour, the contract not being executed, but executory. His only remedy was assumpsit for breach of the agreement, or bill in equity to compel specific performance. Such a Bill may be maintained upon an agreement to deliver slaves, though not for stock in the funds.
    Green for the appedee.
    The. former decision of this Court is a complete bar to the claim now in question, upon the principles that a party shall not avail himself in equity of that of which he might have had the benefit at law. In the suit brought against him by Newby’s administrators, Blakey might have set up in defence, whatever title he had. I admit that, if his title had been acquired since the trial at law, the Judgment would have been no bar: — but he is precluded from now asserting any right which he then had, and failed to assert. Tho’ joined in this suit with other plaintiffs he was party to that in all the characters he could possibly have sustainedthe decision is therefore conclusive as to him.
    *A promise to leave property by Will, does not prevent the act of Limitations from being a bar in detinue. Blakey endeavoured to avail himself of it, in the case at law, without success. In that case it was decided that the five years possession gave an absolute title. The promise too, was a mere nudum pactum; for, at the time it was extorted from Newby, he had an absolute title to the negroes; — a title that was not doubtful; but, for the sake of peace, he said, if they would not sue him, he would leave them the property by his Will. 'The parties on both sides must have known all the facts. There was, of course, no consideration for the agreement. And if it could be supported at law, it is, at any rate a hard contract, which a Court of Equity is not bound to enforce :• — it has a discretionary light in such cases.'
    But, independently of all these questions, the right of Newby under Elizabeth Chown-ing’s Will was good: for neither the Will of her father, nor the act of any other person could take away her absolute title founded on five years’ possession under the parol gift in 1783.
    
    Wickham in reply.
    Two other sisters have recovered by the same title by which we claim, and no objection was made. There can not be a clearer title than our’s, if the case of Newby’s administrators v. Blakey be not against us. Elizabeth Chowning’s possession was not adverse to our claim, which commenced at her death.
    No laches can be imputed to a married woman. The wife of Blakey was no party to that suit. If he failed to make the defence founded on her right, it was not her fault but his: and her right is not barred. The suit was against hjm individually, If he had sued in her right, and got a judgment, and died in her life time, it would have survived to her benefit; for the property would not have been his, unless he had reduced it into possession.
    
      
       Husband and Wife. — See monographic note on “Husband and Wife” appended to Cleland v. Watson, 10 Gratt. 159. See the principal case cited with approval in foot-note to wallace v. Taliaferro, 2 Call 447; Taylor v. Yarbrough, 13 Gratt. 193; Williams v. Sloan, 75 Va. 149.
    
    
      
       Note. — See 3 H. & M. 57. But whether that grift was absolute, or with a reservation of a right to dispose of the slaves by a Will, does not appear. —Note in Original Edition.
    
    
      
       Adams y. Pierce, 3 P. Williams, 11: 4 Bac. 445, citing- 8 Co. 96. Matthew Manning's case.
    
    
      
       Wallace v. Talialerro, a Call 478.
    
    
      
       Chapmans v. Chapman. 1 Munf. 398.
    
    
      
       Stapleton v. Stapleton, 1 Atk. 10; Penn v. Lord Baltimore. 1 Vezey sen. 144, 450; Pullen v. Ready. 2 Atk. 587; Goümere v. Battison, 1 Vern. 48; Cann v. Cann.lP. Wms. 727; Newland on Contracts, 78,79, 111; Nelson v. Nelson, Wash. 136; Chichesters’ ex’x v. Vass’s adin’r, T Muni. 98.
    
    
      
       Note. She lived about five years after that parol grift: william Chowning her father made his will in July 1784. ana died in 1786: she made her Will in January t784, and died, in 1788. See 3 H. and M. 67, 68. — Note in Original Edition.
    
   January 12th, 1818,

JUDGE ROANE

pronounced the Court’s opinion.

*The Court is of opinion, that, altho’ Oswald Newby’s possession of the slaves in controversy, for more than five years after the death of Elizabeth Chowning, was competent to give him a title thereto, (as was decided in the cause, the proceedings in which are an exhibit,) it does not aftect the rights of persons coming within the exceptions of the act of limitations. In this predicament were Mrs. Street, Mrs. Chowning and Mrs. Blakey, by reason of their coverture: unless, in relation to the two latter, their rights respectively were extinguished in favour of their husbands, in consequence of the said slaves having at any time come into the possession of their said husbands. As to the possession, acquired by Churchill Blakey and John Chowning, of the slaves of Elizabeth Chowning, after her death, and which were transferred to Catharine Taylor and Anne C. Taylor, (under whom Oswald Newby claimed,) under a misconception of the title thereto, that possession enured to them, only in their character of Executors of Elizabeth Chowning, and not in right of their wives under the will of their father: nor is the case different as to the possession acquired by Churchill Blakey in and to a part of the slaves in controversy, and which gave rise to the action of detinue in the’ District Court of King and Queen. That possession is also to be referred to his character of Executor of William Chowning, and did not enure to him in his character of husband. The case of Wallace v. Taliaferro (2 Call) is conclusive to shew, that, when these two characters concur in the same person, this conclusion will follow, unless there be some election, or some act indicative of an intention to take in the character of husband. That principle applies emphatically to cases like the present, where the right as husband, did not attach, specifically, to all of the slaves in question, but only to a part of them, after they should have been divided or allotted; and in which the possession of them in mass accords strictly with the party’s claim as Executor.

In this view of the subject, the right of Mrs. Blakey in and to the slaves in controversy, did not come in question in the action in King and Queen, and ought not now to be barred or affected thereby. Her husband defended *that suit in his own right, and not in her’s. If she had survived him, her right would certainly not have been affected thereby; nor is the right of her administrator so affected, in the contrary event, altho’ that administrator is her husband, who was a party to the former action. In this case, the maxim that “when two rights concur in the same person, they are to be considered as if they were in different persons,’’ strictly applies. Her administrator in this case was not a party to the former suit, nor is he a privy to any who was. Nothing done in that suit, therefore, ought to bind him. On this ground, the Court is of opinion, that the said decree is erroneous, and that the appellant ought to be let in to recover his share of the slaves in controversy.

Decree reversed, with costs, and cause remanded to the Court of Chancery, to be finally proceeded in pursuant to the principles of this Decree. .  