
    JAMES LEVISTER AND WIFE against W. F. HILLIARD, Adm’r.
    
    Where the owner of a slave, employed a person to write a deed of gift, furnishing him with a form for that purpose, and such peason wrote such deed accordingly, and having read it over to the donor, he executed it by signing his name, and at his request, such draftsman subscribed it as witness, and immediately retired from the apartment, leaving the instrument, so executed, lying on the table, in the presence of both the donor and do-nee, it was Held that this proof raised a presumption that it was delivered to the donee, and that such presumption was strengthened by the declarations of the donor, afterwards made, that he had executed a deed, for the property in question, to the donee.
    Cause removed from tbe Court of Equity of Franklin county.
    The bill, in this case, was filed to set up a deed, which it was alleged had been made by Stephen Sparks, to the feme plaintiff, (then Mary Ann "White) for two slaves, Candice and. Minerva.
    The plaintiff, Mary Ann, had lived in the family with the said Stephen and his wife Elizabeth, from her early infancy, until the death of both. It appeared that she was very serviceable, and that they were both greatly attached to her. Divers witnesses proved that Stephen Sparks spoke of Mary Ann in affectionate terms, and declared his intention of providing for her. She was the niece of Elizabeth Sparks, but was not of kin, by consanguinity, to Stephen Sparks.
    The bill alleges that a deed was made, and delivered by Stephen Sparks in 1843, while Mary Ann was still an infant \ that it was drawn up by Harrison White, the brother of the said Mary Ann, in pursuance of a copy, to which he was referred by the said Stephen, and that he subscribed the same as a -witness ; that the deed was delivered to her, and that she delivered it to her aunt, Mrs. Sparks, for safe-keeping; that Stephen Sparks died about the year 1846, and the said Mary Ann thence continued to reside with her aunt, for about two years, when the aunt died ; that the slaves in question remained in the family of Stephen, during his life, and afterwards with his widow till her death, which took place in 1848, when they wrnnt into possession of one Shemnel Kearney, who kept them, (knowing of plaintiffs’ claim,) under an apprehension that he might have to resort to them in aid of a fund which he had in hand, and with which he was paying off the debts of the said Stephen ; that he (Kearney) held them until December, 1851, when they went into the possession of the defendant, Hilliard, who refused to surrender them on the demand of the plaintiffs. The bill was returnable to spring term, 1854. The prayer is for a surrender and conveyance of the slaves and their increase, and for an account of the hires and profits, while in defendant’s possession.
    The defendant answered, denying plaintiffs’ equity, and requiring.full proof of the execution of the deed. lie also insisted, that he had more than three years’ adverse possession of the slaves, and that he was, therefore, protected by the statute of limitations. He asserted that the slaves were in the possession of Kearney, as his agent, and that that possession, added to his own, would make out more than three years.
    The proofs, in the case, especially the testimony of Harrison White and Shemuel Kearney, are so fully set forth in the opinion of the Court, that it is not deemed necessary to repeat their statements here.
    
      Moore and Lewis, for the plaintiffs.
    
      Winston, sen., for the defendant.
   Pearson, J.

Was the instrument delivered, so as to become the deed of Stephen Sparks ? is the main question in the cause.

Harrison White, swears that he was called upon by Sparks-, at his (Sparks’) house, to draw a conveyance from him to Mary Ann White, for two negroes, Candice and Minerva, The witness told him he did not understand writing either a deed of gift, or a bill of sale. Sparks said he had given a bill of sale to Drucilla White; witness could get that and draw one by it. He did so, changing the names, and the sum of money, which was small. After it was written, he read it over to Sparks, who signed it by making his mark, and requested him to witness it, which he did, and left it lying on the table as he went off. No one was in the room but witness, Sparks, and Mary Ann White. Witness heard Sparks say afterwards that he had given, or sold the two negroes to Mary Ann White.

Several other witnesses swear, that they heard Sparks say that he had executed a deed of gift to Mary Ann White for two negreos, and particularly, that when he executed a deed of trust of all his other negroes, he refused to insert these two* saying he had given a bill of sale for them to Mary Ann White, and they were not his. The bill of sale from Sparks to Drucilla White, referred to by the first witness, is produced as an exhibit. It is in the usual form, and is signed and sealed by Sparks, and attested by two subscribing witnesses.

If Harrison White, the subscribing witness, were dead, proof of Ms hand-writing, would be prima facie evidence that it was duly executed; i. e., was signed, sealed and delivered, His testimony, we think, is at least, equivalent to the inference that would be drawn from proof of his handwriting, if he were dead. He proves a present purpose to execute the deed ; that jit was signed, and he attested it as a subscribing witness, at the request of the maker, and left it lying on the table, in the presence of the donor and donee. This being prima facie evidence, that it was duly executed, the question is, what is there to rebut the presumption ? "We can see nothing. On the contrary, the declarations made afterwards by the donor, confirm the presumption, if they do not, of themselves, furnish evidence of the fact of the delivery. Baldwin v. Maultsby, 5 Ire. Rep. 505, Kirk v. Turner, 1 Dev. Eq. 14, and Newlin v. Osborne, 4 Jones’ Rep. 157, are distinguishable from this case. In the first, the donees were not present, and the subscribing witness left the donor alone in the room, the instrument lying on the table. After his death, it was found in his trunk. In the second, the donees were not present, and the subscribing witness handed the instrument to the donor, and went away. In the third, the bargainee was not present, and the subscribing witness handed the instruments to the bagainor, who carried them off with him. In these eases, the fact that neither the donees, nor any person, who could act for them, were present, and that the instruments were left with the donors, when alone, so that a delivery could not be made, necessarily repelled the presumption of a delivery.

The production of the deed to Drucilla "White, and the testimony of Harrison White, that he drew the conveyance from Sparks to Mary Ann White, for the two slaves, using that as a form, changing only the names, and the small sum that was inserted as a consideration, fully meets the difficulty as to proving the contents of the deed, which is lost.

The position, that the defendant has acquired title by an adverse possession for three years, cannot be maintained. Mary Ann White lived with Stephen Sparks, and the negroes remained on the premises until his death. She was then an infant, and there is no allegation, or proof, that Sparks was in the adverse possession. After his death, Mary Ann 'White, still being an infant, continued to reside with the widow until her death, about February, 1849, and the negroes remained on the premises. Shemuel Kearney then took the negroes into his possession, and held them until December, 1851, when the defendant took them into his possession. The bill was filed April, 1854, a few months over two years. The defendant alleges that Shemuel Kearney held possession by his permission, and as his bailee. This allegation is positively denied by Kearney. He swears that he took possession of the other slaves, claiming them under the deed of trust, and of these two slaves under the advice of his attorney, supposing that it might become necessary to resort to them, if the trust fund should prove insufficient, in order to pay the debts of Sparks, for which they were liable, notwithstanding the deed of gift, which was mentioned to him by Sparks at the time the deed of trust was executed for the other negroes. So, if the Kearney was the bailee of any one, it was of Mary Ann White, who was entitled to the negroes as against the defendant, the administrator of the donor.

Mary Ann White married in 1850. Whether she was then an infant or not, is left uncertain by the pleadings and proof j but an inquiry in regard to it is unnecessary, because, supposing her to have been of Ml age, the defendant did not have-adverse possession long enough to defeat her title-.

Per Curiam. Decree for- plaintiffs.  