
    E. B. Hobbs et al. vs. Francis M. Ballard et al.
    
    1. Statute oe Limitations. Possession. Infancy. Conversion of Slave. Acts of 1789, ch. 23, § 2; 1715, ch. 48, § 9. Tbo possession of successive, wrong-doers.cannot be connected for any purpose. Each possession is a substantive wrong for which an action may be brought against either. Thus, where the complainants were entitled in remainder to certain slaves, and at the time their right of possession accrued said slaves were adversely held, the complainants being then all minors, and said slaves being so hold for a period of four years and until one of said complainants had attained full age, passed under the will of said adverse holder to the defendant, who held them as his own for more than six years before the bill was filed ; it is held, that said pos-Si'ssionri-w<'re two distinct conversions, which could not be so connected as to relieve, the complainants of the operation of the statute of limitations, until the youngest should become of age, and that the last pos-') session had ripened into a perfect title.
    2. Oases Cited. Shute vs. Wade, 5 Yerg., 14; Mart. & Yerg., 360.
    FROM MADISON.
    This case is from the Chancery Court at Jackson. The complainants seek to recover certain slaves, which they claim under the will of their grandfather, Ezekiel McCoy. By the will of said McCoy, the slaves in controversy were bequeathed to the mother of complainants for life, with remainder to them. In 1840, and pending the life estate, ■ the father of complainants sold and delivered said slaves to the father of the defendants. In 1843, the life estate terminated, all of the complainants being then under lawful age. In 1847, one of the complainants being then of full age, the father of the defendants died, and said slaves passed under his will to the defendants. The defendants held and claimed said slaves under said will, until 1855, when this bill was filed. At the time of the filing of the bill, several of the complainants were still minors. The answer of defendants admits the original right of the complainants, but they rely upon the statute of limitations, and assert a perfect title. At the February Term, 1857, Chancellor Williams dismissed the bill. The complainants appealed'.
    Hays & MoeRILL and M. & H. Beowít, for the complainants.
    In this case, counsel are directed to furnish briefs upon the following points:
    1st. Was the retention of the slaves by the elder Ballard, after the falling of the life estate and his assumption of ownership, a conversion ?
    2d. If so, can the complainants waive the tort, and hold the estate' through the defendant, as representative, accountable for the value of the slaves in money ?
    3d. If such election might be made by complainants, would the statute of six years, or the statute of two years, interpose any ground of defense ?
    The facts of the ease necessary to this investigation, are in brief as follows: McCoy, by his will, gave to Mrs. Hobbs, the mother of complainant, a negro girl and her increase, for life, with remainder to her children; pending the life estate, Ballard, the elder, bought the negro woman of the husband of the life tenant. Mrs. Hobbs died in 1843, all her children being minors. After the falling of the life estate, Ballard continued to hold said negroes, and claimed ' them as his own, and in 1847 died, and bequeathed said slaves to defendant, who also was his executor; at the time of Ballard’s death in 1847, one at least, of complainant’s, was of full age.
    1st. Was Ballard’s holding, a conversion ? we insist that it was.
    A conversion consists either in the appropriation of the thing to the parties own use and beneficial enjoyment, or in its destruction, or in exercising dominion over it, in exclusion or defiance of plaintiff’s right, or holding the possession under a • claim of title inconsistent with that of plaintiff. 2 Greenleaf Ev., § 642; 7 Johnson’s Rep., § 254; 4 Ired., 76. The conversion may consist of a tortious taking of the chattel, or a wrongful assumption of property in it. Leigh’s Nisi Prius, 1478; 7 Johnson, 257. When a person appropriates the property of another to his own use, even temporarily, it is a conversion. 3 Barne. & Adol., 687. So it is held in 2 Dev., 130, possession accompanied with a claim of title, is a conversion.
    And whenever there has been an actual assumption of property, no demand is necessary. 7 John., note referring to 5 East., 407.
    That there was an actual conversion of the property, the record leaves no doubt, and we say that the authorities clearly establish the proposition that this conversion was in 1843. The elder Ballard claimed the property all the time as his, he never, at any time, recognized the claim of complainants, but held in direct antagonism to them, and finally mingling this property with his general estate, disposed of it all by his will.
    
      2d. We think the second proposition propounded by the Court, is fully and unequivocally settled in the case of Alslrooh vs. Hathaway, 3 Sneed, 454, and the authorities there cited.
    In that case, the Court say that they can see no reason why any difference should he made, whether the property has been converted into money or not, and settle the law in this State to be that in either case, the 'plaintiff may waive the tort and pursue the value of the property converted. If this be so, then certainly the estate of the elder Ballard must be liable for the value of the property converted.
    If these views be correct, we then say that the statutes of six and two years interpose no bar to a. recovery, for the reason, that at the time of the conversion, all the complainants were minors and at the time of bringing this suit, some had not attained their majority. The cause of action was joint, it accrued in 1843, when all were minors, and the statute could not commence running according to the well established authorities, until all had become of full age; and though complainants may be barred from recovering from the new wrongdoer the specific property, the executor representing the elder Ballard the first wrongdoer, can stand in no better position than he could. If a cause of action remained against him, it remained against his estate, and so far as he or his estate are concerned, no new cause of action arose for the value of the property, by reason of his death. But the right of action resulting from the conversion of the property, relates back to tbe period of conversion, and when all complainants were minors, and continues until all attain full age.
    Wm. H. Stephens, for the defendants.
    1st. Was the retention of the slaves by the elder Ballard, after the falling of the life estate, and ■ his assumption of ownership, a conversion? ‘
    2d. If so, can the complainants waive the tort, and hold the estate, (through the defendant as personal representative,) accountable for the value of the slaves in money ?
    3d. If such election might be made by the complainants, would the statute of limitations of six years, or the statute of two years, interpose any ground of defense ?
    
      Mrst: As to the conversion. There was a conversion by somebody. It was either by the elder Ballard in January, 1843, when he held over; or at the making of his will on the 10th of August, 1847, when he undertook to dispose of the slaves. Or else it was by the executor, in September, 1847, when he took possession.
    No matter at which of the three periods the conversion was made, it is, equally a bar to the recovery of the slaves in specie. If it was by the elder Ballard in 1843, it was a tort; his possession was wrongful until his death; and his executor, in taking possession, was a wrong - doer, and cannot connect his possession with that of the testator. He is responsible, therefore, for his own conversion, which was in September, 1847; and as one, at least, of the complainants was then of age, all are barred.
    If the making of the will was the conversion, the same reasoning will apply.
    If the conversion was by the executor when he took possession in September, 1847, the right of action then accrued against him. At that time, at least one of the complainants was of age, and all are barred, of course.
    That the statute of three years will apply in each of the foregoing views of the case, the authorities cited in Mr. McClanahan’s brief, filed at the last term, are conclusive, especially the following: 11 Humph. Rep., 370, Moffat vs. Buchanan; do., 457, Moffat vs. McDonald; 1 Swan’s Rep., 501, Wells vs. Ragland.
    
    
      Secondly: As to waiving the tort, &c. It is true, the Court has decided in Alsbrook vs. Mathaway, (3 Sneed, 454,) that where goods are converted, the owner may waive the tort and sue in debt. But we think that case, and all those cited in its support, will be found to be for the conversion of mere chattels or goods, and not of slaves. So far as slaves are concerned, the possession, like that of real estate, vests the title, and does not merely bar the remedy ; the statute operates upon the right, and not merely upon the form of the action. 6 Humphreys, 108, Morrow vs. Matfield. It seems to us, that as to slaves, the law is intended not merely to bar a suit for their recovery, but to put an end to all litigation growing out of a conversion of them; and that it would be stretching the case of Alsbrook vs. Mathaway, too far, to make it cover a case like this. By holding that the statute confers title to slaves, the Courts doubtless mean to put them, quoad hoc upon the same footing as land, that is, that the possessor went in rightfully, hut from lapse of time and loss of proofs cannot deraign his title, and the Courts, therefore, supply the title. How inconsistent then it is, to hold that the statute operates to perfect the title, and yet that the person so protected may, in a different form of action, be made to pay for what is, and in contemplation of law always was, his own.
    But granting that in general, a party may waive the tort and sue in debt, what effect will it have on this suit ? What relief can be given to these complainants ? They have elected to treat, the defendant as a trespasser, and to claim the property in specie; and have gone to trial on that issue. Shall they be allowed now to change their front? If they may do so, and the Court is to consider this bill as . filed for the money, or if it is to be so amended as to pray for that relief, then what head of equity jurisdiction will the case come under ? According to this hypothesis, the elder Ballard owed them a debt, — a debt eo nomine et in numero, — not a complicated account-; not a case of set-offs or mutual demands; no hires, nothing but the value of the negroes in 1843, and interest thereon. There is no embarrassment to a suit at law; no discovery needed.; and no possible .call for the extraordinary jurisdiction of a Court of Equity. If a bill were brought for the money alone, would it not be demurrable? Shall the complainants then, by bringing their bill under a known head of equity, take advantage of it to secure a locus standi in Court, and then abandon their whole case as a fiction, and go for relief on a ground which, if stated - originally in the hill, would he demurrable. True, if a discovery were needed, and was obtained, the Court would not, perhaps, turn the parties oyer to a Court of Law; hut here there is no discovery asked or given, which will he of any use in the action for money.
    
      Thirdly. As to the statute of six years: 1st. If the conversion was in 1843, or in other words, if the debt become due then, and the elder Ballard were still living, we admit there would ■ he difficulty in applying the bar of six years to a suit for the money.
    But the right to sue the executor, is a new right, and the remedy against him, is personal to him. It accrued at his qualification in September, 1847, when one of the complainants was of full age, and consequently all are barred. We insist, that this implied contract on the part of the testator to pay the value of the property, if indeed a contract can be implied from his .tort, is not such a debt as puts the executor in privity with the testator.
    2d. If the conversion took place at the making of the will, 10th August, 1847, and there is a privity between the testator and his executor as to a debt of this kind, then the statute commenced running on the 10th of August, 1847, when one of the complainants was of- age, and all are barred.
    3d. If the conversion was by the executor, in September, 1847, then of course all are barred.
    Where one of several plaintiffs is not. under disability, though the others are, all are barred.. 4 Burn-ford & East, 516, Perry vs. Jackson; 5 Yerger, 17, Shute vs. Wade; 2 Sneed, 526, Allen vs. Parrington; Angelí on Lim., 216, 217, (Mr. McClanahan’s edition.)
    
      
      fourthly: As to the statute of two years. This statute of 1789, is an independent act, made for the protection of the estate, and is to be applied inexorably, and the representative is hound to plead it. 7 Hum-phreys, 373, Brown vs. Porter. True, there is a saving in favor of infants, &e. But this act commenced running, of course, at the qualification of the executor, in September, 1847. And as the action must necessarily have been brought in the name of all the plaintiffs, and as one of them was then of age, all are barred. 2 Sneed, 526, Allen vs. Farrington. We insist, therefore, with great confidence, that this statute bars the suit for the money.
    
      But Fifthly:- Theré is another statute, not heretofore noticed in the discussion, which is so complete a bar as to render unnecessary the discussion of any other question. We mean the act of 1715, ch. 48, sec. 9, creating the bar of seven years. By this act, no creditor of the deceased can sue the representative after seven years from the death of his debtor. There is no saving in favor of infants or lunatics, or any person, or any State. Its operation, where the debt accrued in the life-time of the deceased, is universal and omnipotent. 2 Swan, 504, State vs. Oruteher, (see page 511, et seq.j Yerger, 224, - vs. Maxey; 11 Humphreys, 412, Williams vs. Gomad; 5 Haywood, 1; 2 Devereux’s Law, 338, Raynor vs. Watford, (a strong ease.) If, therefore, the elder Ballard was in any shape or form the debtor of these complainants, their failure to sue the executor for seven years, is an absolute bar. The infancy of one, or the infancy of all, is no- excuse for the delay, and is no protection against the statute, according to the spirit, and in some instances the very words of these last named decisions.
    We consider the bar of six years a debatable question; hut the bar of two years, and of seven years, we do not think open questions, either in this State or North Carolina.
    McCahahah, for defendants.
   CabutheRS, J.,

delivered the opinion of the Court.

The complainants are the children of Abigail Louisa Hobbs, and as such, claim to he entitled in remainder, to the slaves in controversy under the will of their grandfather, Ezekiel McCoy, made in 1888. The mother and father of complainants took possession under this will, and enjoyed the life estate; and in 1843, the mother died. The father, about that time, sold the slaves to the elder Ballard, the complainants being all then under age; the eldest arrived at age in 1845. The said Ballard held possession under his purchase till 1847, when he died, and the slaves passed under his will to the defendants, against whom this bill was filed in 1855. The defense relied upon, is the statute of limitations.

Ballard, the purchaser, was certainly guilty 'of conversion, for which a cause of action accrued at the date of his purchase, to the complainants, but as none of them were then of age, they would not, any of them, be barred, on the principle of the case of Shute vs. Wade, until the youngest attained his majority, which period Las not yet arrived, and consequently, if there was nothing more, the statute ' would - not he in their way. Rut in 1847, when the elder Ballard died, and the defendant obtained the posséssion, and claimed the slaves as their own, one or more of the remainder men was of age, and the question arises, whether this was not a new conversion, upon which the statute would run against all, upon the doctrine of the . same case. The possession of successive wrong-doers cannot be connected fori any purpose. Each possession is a distinct and independent wrong, for which an action may be brought against either. The state of things existing at the time of the tort for which the suit was instituted, must control the case. The conversion of these defendants occurred in 1847, and on this, the suit against them is based. At that time one or more of the complainants, as we have said, was -of lawful age, and the suit was not commenced in six years from that time.

If it be a case in which they could have waived this tort, and brought. an action of debt, and had actually done so, still the time is sufficient to create the bar to that action, being more than six years.

But it is argued that they may elect to regard the conversion of the elder Ballard, when they were all infants, as creating a debt, by waiving the tort,- and all being then under age, his executor would be subject to the action of debt until all arrived at lawful age. • To this there are several sufficient answers. They have not chosen to take that course, but have sued for the slaves themselves, this being a mere detinue bill, and not for the value. Mart. & Yerg., 860; and if they had, they have not sued within two years from the qualification of the executor, as required by the act of 1789; and even if they did not fail under that act, it is difficult to. see how they could avoid the 9th sec. of the act of 1715, barring all creditors, without any saving, in “ seven years after the death of any debtor,” as the death was more than that time before this suit. Mart. & Yerg., 360.

The decree of the Chancellor dismissing the bill, was right, and will be affirmed.  