
    Richmond.
    M’Kenzie & als. v. Macon.
    (Absent Mien, J.)
    1. Slaves remaining in possession of one person on hire for more than five years, are not subject to be taken in execution for his debts.
    2. The act 1 Rev. Code, ch. 101, § 2, p. 372, does not apply to the case of property remaining in possession of a debtor for more than five years, on hire.
    
    This was a bill by William H. Macon, to enjoin the sale of a number of slaves which had been taken in execution to satisfy judgments recovered by James M'Kenzie, Archibald Govan and others, against Miles Macon. The plaintiff claimed the slaves as belonging to him, and the injunction was awarded. The defendants i*1 their answers insisted, that the slaves were the property of Miles Macon ; and they charged that some of them had been in his possession for twenty years, and the others were the descendants of one of these, were born whilst their mothers were in Miles Macon's possession, and had remained in his possession from their birth until a short time before the levy of the executions, when all the slaves taken in execution had been taken from Miles Macon's possession, and removed to William H. Macon's. And they charged, that during the whole time that the slaves were in the possession of Miles Macon, he exercised full dominion and ownership over them, and was universally reputed their owner; obtained credit as such, and sold one of the children born whilst they were in his possession, and received payment therefor, without question of his right to do so from any quarter.
    The facts, as they were made out by the evidence, were substantially as follows:
    
      William H. Macon, who was the father of Miles Macon, owned a tract of land in the county of Hanover, called Fairfield, and a mill, a mile or two from this land; and he owned another farm in New Kent. About the year 1816, he removed from Fairfield, to his farm in New Kent; and Miles Macon, who was then married, moved to Fairfield: and the Fairfield estate was cultivated jointly by the two, each furnishing slaves to cultivate it. This was continued until 1825, when William H. Macon removed his slaves from Fairfield to New Kent, except a boy Jacob, who attended the mill, and a boy Jerry, and a woman Dilsy and her children: and he permitted Miles Macon to remain at Fairfield, and cultivate it, and take the profits to himself until 1829. The terms on which Miles Macon held the farm during this period, were, as he states in his deposition, that he should pay the taxes on the land, should furnish his father and his family and horses during the summer and fall months, whilst he was at Fair-field; and should support Dilsy and her children, for which he was allowed the services of Jerry.
    
    In 1829, William II. Macon conveyed Fairfield and also the mill, to Miles Macon; and from that time, Miles Macon held it as his own estate until March 1842, when, having become insolvent, he conveyed that with all his other property, in trust for the payment of his debts.
    During the period from 1829 to 1842, the slave Jacob continued to live at the mill, and Jerry and Dilsy, and the children and grandchildren of Dilsy, lived at Fair-field; but William H. Macon annually took from Miles Macon bonds for the hire of these negroes. For the hire of Jacob and two other negro men, Miles Macon executed his bond for 150 dollars. These bonds provided that whatever time these negroes should be in the service of William H. Macon was to be deducted from the bond. They were blacksmiths, and were occasionally sent for by William II. Macon to do the smith’s work on his farm in New Kent. Some of these bonds seem to have been paid off by Miles Macon ; but others of them were unpaid, and were in the possession of William H. Macon when the executions were levied- For Jerry, Dilsy and her children, the bond was either for one dollar, and that they were to be returned the next Christmas well clothed, or for their victuals and clothes. .
    It appears that Miles Macon did sell one of the children of Dilsy ; but he states that he did it with the assent of his father, and on condition that he would replace her by one of his own. That being obliged to sell slaves to raise money, he preferred to sell her because she behaved herself badly; and that he did replace her by conveying to William H. Macon, a boy of his own called Robert; and there is the bill of sale in the record.
    Several witnesses were examined, some of whom stated that Miles Macon had repeatedly spoken to them of the slaves as belonging to his father, whilst others who lived near to him, say that they supposed that the slaves belonged to Miles Macon, and they believe they were generally so regarded. Miles Macon himself says, that he never pretended that the slaves were his, or concealed the fact that they belonged to his father; and that he had always represented them to be his father’s to all persons with whom he conversed upon the subject; and among others to several of the defendants in this suit.
    When the cause came on to be heard, the Court perpetuated the injunction; and thereupon the defendants applied to this Court for an appeal, which was allowed.
    
      Meredith, Lyons and Daniel, for the appellants,
    insisted that the slaves were in the possession of Miles Macon on a loan ; and having been thus in his possession for more than five years, they were liable to satisfy his creditors, by virtue of the act, 1 Rev. Code, ch. 101, $ 2, p. 372; and the fact that they were taken into the possession of William H. Macon before the levy of the executions, did not release them from this liability. Gay v. Moseley, 2 Munf. 543; Garth's ex'ors v. Barksdale, 5 Id. 101; Boyd & als. v. Stainback & als., Id. 305; Pate v. Baker, 8 Leigh 80; Taylor v. Beale, 4 Gratt. 93. And they referred to Story on Agency, § 372, 373, 374, for the principles which distinguish a loan from a hiring.
    
      Robinson, for the appellee,
    insisted that as William H. Macon did not rest his claim on the ground that he had loaned the slaves to Miles Macon, it was not competent for the creditors to set up this pretension. That the statute only applies where the claimant of the property rests his rights upon the ground of a loan, which was not the case here ; and that in this respect, the case before the Court was distinguished from all the cases cited on the other side. That even if there had been a loan from 1825 to 1829, yet as after that time the slaves had been hired for more than five years before the levy of the executions, the title of William H. Macon was good against the creditors.
    
      
       The act says: “ Where any loan of goods and chattels shall be pretended to have been made to any person with whom, or those claiming under him, possession shall have remained by the space of five years without demand made, and pursued by due process at law on the part of the pretended lender, or where any reservation or limitation shall be pretended to be made of a use or property, by way of condition, reversion, remainder, or otherwise, in goods and chattels, the possession whereof shall have remained in another as aforesaid, the same shall be taken, as to the creditors and purchasers of the persons aforesaid, so remaining in possession, to be fraudulent within this act, and that the absolute property is with the possession, unless such loan, reservation, or limitation of use or property, were declared by will or by deed, in writing, proved and recorded as aforesaidThat is, acknowledged or proved by two witnesses in the Court of the county wherein one of the parties lives, within eight months after the execution thereof.
    
   Baldwin, J.

delivered the opinion of the Court.

The Court is of opinion, that the slaves in the proceedings mentioned, upon which the executions of the appellants against Miles Macon were levied, were not the property of the said Miles Macon, but of William H. Macon, the appellee; and that in the transactions between the said Miles Macon and William H. Macon, in relation to said slaves, there is no ground for the imputation of actual fraud as against the creditors of said Miles.

The Court is further of opinion, that though the said slaves were in the possession of said Miles Macon for a number of years, yet that the case does not fall within the provisions of the second section of the act to prevent frauds and perjuries, (1 Rev. Code, ch. 101, p. 372,) in relation to loans of goods and chattels, or reservations or limitations of a use or property therein by way of condition, reversion, remainder or otherwise; inasmuch as the said possession of the said Miles Macon was by force of bailments by hiring, not fictitious or colourable only, but real and bona fide.

The Court is therefore of opinion that there is no error in the decree of the Circuit Court.

Decree affirmed with costs.  