
    
      Richard Singleton vs. Robert Heriott.
    
    The terms of a commissioner’s sale of negroes were, a credit of one, two and three years, the purchaser giving a bond and mortgage¡ u the titles to be made, but not delivered till the payment of the first instalment, and on non-payment the commissioner shall re-sell for cash, at the risk of the former purchaser.” A. B. purchased negroes, and, although they went into his possession, he gave neither bond nor mortgage, nor were titles delivered to him. Shortly after the sale he sold the negroes to the plaintiff, with notice of the incum-brance, in whose possession they were afterwards seized, and re-sold by the commissioner, under the terms of the order requiring a re-sale on non-payment of the first instalment. They had been in possession of the plaintiff more than four yeaTS from the time he purchased from A. B., but not four years from the time A. B.’s first instalment became due. On trover brought by the plaintiff against the commissioner, held that he could not recover ; that the commissioner, by permitting the negroes to go into the possession of A. B., had not waived his right to re-sell on non-payment of the first instalment; and that the plaintiff’s adverse possession, as against the commissioner, did not begin until the first instalment was due.
    
      Before Gantt, J. at Georgetown, Fall Term, 1832.
    This was an action of trover for three negroes. The plaintiff claimed under a bill of sale from Dr. John Wragg to Mrs. Patterson, now the wife of the plaintiff, bearing date the 25th March, 1825. They, the negroes, were taken by the defendant from the plaintiff’s possession on the 6th February, 1830.
    On the part of the defendant, it was proved that the ne-groes in dispute were sold by him, as commissioner in equity, to the late Dr. John Wragg, on the 14th March, 1825. They were sold as part of the estate of Thomas R. Mitchell.. By the order of court, under’ which the sale waá made, the terms of sale were, “a credit of one, two and three years from the day of sale, taking; bond with personal security and mortgage, to secure the payment of the money ; the titles to be made but not delivered till the payment of the first instalment, and on non-payment the commissioner shall re-sell, for cash, at the risk of the former purchaser.” Immediately after the sale, Dr. Wragg took possession of the negroes, but no bill of sale was given to him; and he did not execute the mortgage until tire 14th February, 1829: it was recorded on the same day. At the time the mortgage was given, a bond, bearing date the 14th March, 1825, was also given by Dr. Wragg, to the commissioner.
    The debt of Dr. Wragg, for the purchase of the negroes, remaining unpaid, on the 23d April, 1829, the commissioner was ordered to re-sell the negroes. This order was suspended, and on the 22d January, 1830, he was ordered to sell them. He took possession on the 6th February, and sold them a short time afterwards.
    Mrs. Pache, a witness introduced by the plaintiff, testified, on her cross examination, that Mrs. Patterson told her (the witness,) that she had been warned, either by the defendant (Mr. Heriott,) or by Mr. Thomas Mitchell, not to purchase the property, as it was under an incumbrance, but that Dr. Wragg had told her to make herself perfectly easy about it, as she would never lose the property.
    His Honor, the Presiding Judge, charged the jury, that Mrs. Patterson’s adverse possession of the negroes commenced from the time she purchased them from Dr. Wragg, and that the defendant’s right to seize and re-sell them under the order of the court of equity, was barred at the end of four years from that time. That the plaintiff was entitled to recover — his title, by possession, being perfect at the time of the seizure and re-sale. The jury found for the plaintiff $904 : and the defendant appealed,
    
      Dunkin, for the motion.
    -contra.
   Curia, per

O’Neall, J.

The right of the plaintiff to recover depends upon the question, whether he and his wife have together had four years adverse possession of the slaves in dispute, after the defendant’s right of action or seizure accrued. This question presents two points for consideration: 1st. As to the character of the possession ; and 2d. As to the time when the statute of limitations commenced to run against the defendant. It is true, as is stated by the Judge below, that “ when one holds for himself and in his own right, and not for and in the right of another,” it is an adverse possession. The application of this definition to the facts of this case must shew, that the possession of the plaintiff’s wife could not be adverse to the defendant. He sold to Dr. Wragg, under an order of the court of Equity, directing the sale to be made on a credit of one, two and three years, to be secured by bond with personal security and mortgage ; the titles to be made, but not delivered till the payment of the first instalment: and on non-payment thereof, the commissioner to re-sell for cash. The purchaser received possession without giving either bond or mortgage, and this was, on the part of the commissioner, perhaps, a waiver of any benefit which he could have received from that part of the order. Still, however, this did not confer a perfect right of property on the purchaser. He had only a qualified estate, liable to be divested on failing to pay the first instalment. His possession was according to his title, and consistent with the title of the defendant. He held not exclusively for himself, but both for himself and the defendant. If he was the plaintiff now seeking a recovery, no one could suppose that his title was perfected by a possession commencing before there had been a failure to pay the. first instalment. The purchaser from him, with notice of the decree of sale, cannot be in any better situation than he is. The purchase so made is affected by all the equities existing between Wragg and the defendant. Mrs. Patterson’s possession under the title of Dr. Wragg, was consistent with the title of the commissioner, until default was made in making payment of the first instalment. Up to that time she held an estate, which, in buying from Dr. Wragg, she legally consented should be divested on his failing to make that payment. She did not hold for herself, and in her own right, but for and in the right of the commissioner. Her possession was, therefore, not adverse until that time.

It may be, as was supposed in the argument, that, upon the failure of Dr. Wragg to give bond and personal security, the commissioner had the right to re-sell; but if he had the right then, there can be no doubt that he had also the right to seize and re-sell upon default being made in the payment of the first instalment, He might waive the first without defeating the second. For the right to act upon the second default did not depend upon the first. Each was independent of the other. The commissioner might, if he chose, regard the purchaser as both able and willing to pay, and dispense with the execution of either bond or mortgage. It was an act which rendered him liable to the party in interest for the purchase money, if he failed to make it out of the purchaser or the property. This is, however, the extent of its effect; it discharged no other lien on or right in the property. If bond and mortgage had been given, the commissioner, acting under the order, would have had an unquestionable right, if default in the payment of the first installment had been made, to have seized and re-sold the negroes. The fact, that neither of these securities were executed, cannot defeat his right to proceed under the order. Under the mortgage, if it had been executed, he could have proceeded to sell for a failure to pay any of the instalments, even if the first had been paid. But under the order, he had only the right to re-sell if the first instalment was not paid. This was a pre-requisite to the vesting of a legal right in Dr. Wragg. At this default the defendant’s right to seize and re-sell the slaves was perfect ; in other words, he then might, by virtue of his legal estate, defeat the equitable estate of his vendee. From that time his cause of action accrued, and from that time Mrs. Patterson’s possession was adverse to his title. Four years not having intervened between that time and the seizure and re-sale, defendant’s justification was a legal one, and he was entitled to recover.

The motion for a new trial is, therefore, granted.

Johnson, J. and Earle, J. sitting for Harper, J. concurred.

At Spring Term, 1832, the case was again tried before Evans, J. on the same testimony, with the addition of the testimony of a Mrs. Pigott, which was to the same effect as that of Mrs. Pache. The jury again found for the plaintiff, and the defendant again appealed; and the Court of Appeals being still in session, the case was heard, and decided as follows;

Curia, per , O’Neall, J. The former opinion in this case decided that the defendant’s right to seize and sell the slaves in dispute, was not barred until the expiration of four years from the time at which default was made in making the first payment. The case now before us is in no respect essentially different from that before presented to us.

Mrs. Pigott is an additional witness for the plaintiff;— but her testimony furnishes us with no fact establishing either a waiver of the defendant’s rights, or of the commencement of an adverse possession at a time earlier than that which, by law, commenced upon the failure to make the first payment.

The necessary consequence must be, that a verdict found directly contrary to the law of the case cannot be supported.

The motion for a new trial is, therefore, granted.

Johnson, J. concurred.  