
    Samuel G. Frierson v. Patrick Irwin.
    The court will discountenance the practice of bringing slaves to this State for the purpose of defeating the rights of property existing in them under the laws of the State from which they are removed.
    Where a title to slaves has been acquired by prescription in another State, that title will not be disturbed by the subsequent removal of the slaves to this State, and the prescription will be determined by the laws of the State from whence they were removed.
    He who pleads minority must establish the fact affirmatively.
    APPEAL from tile Second District Court of New Orleans. Lea, J.
    
      Elmore and King, for plaintiff,
    contended: This is an appeal by the defendant from a judgment against him for a slave named Sam, and for the value of the services of the slave from the time of judicial demand.
    The following authorities show that such an action can be maintained. C. P. 148,151. Also art. 7. 12 L. R. 415. 16 L. R, 414. 8 N. S. 621. 6 N. S. 674. C. C. 495, 3416. Roumage v Blalrier, 11 R. R. 107. Reynolds v. Swain, 13 L. R. 198. Campbell v. Armstrong, 1 N. S. 574.
    The evidence in the case is briefly this. In the year 1841, the plaintiff gave the Hon. A. P. Bagby $600 for the slave Sam, then described as being about sixteen years old. 4 L. R. 119. 1 Stnrkie on Evidence, 326. Sam was born the property of Bagby. The precise time at which he purchased Daphne the mother of Sam, is not shown; but Hamilton, one of the defendant’s witnesses, says, Daphne passed into the possession of Bagby after the death of Mrs. Yancey, and that she died in the year 1821. From that time Daphne always remained in the possession of Bagby until he sold her, and afterwards in the possession of his vendee.
    After the plaintiff had possessed Sam for several years under his purchase from Bagby, in August, 1843, he was stolen by one P. H. Delane, who sent him to New Orleans in charge of an agent, and had him sold at auction by Beard 8f Richardson, to the defendant, for the sum of $295. The plaintiff having learned that his slave was in New Orleans, came here and instituted the present suit for his recovery.
    Under the foregoing evidence, the judgment of the lower court was in his favor. The defendant sets up his title as derived from Delane, and contends that Delane was the owner of the slave. To support this defence he introduced a mass of evidence, which was all received, subject to all legal exceptions.
    The basis of the defendant’s title is a pretended marriage contract between Mrs. Delane, the mother of P. H. Delane, and Mr. Yancey, said to have been made in South Carolina in the year 1816. The proof of this contract rests solely upon a copy certified by a deputy secretary of State for the State of South Carolina. When asked if the said marriage contract was legally recorded, he answered, he could not tell, as the date of its recordation did not appear on his books.
    To give any effect to the certified copy of the marriage contract, it is necessary for the defendant to show affirmatively, that the original was legally recorded. The testimony of the officer attesting the certificate, destroys the certificate; for he himself says, he cannot say the original was legally recorded. If the original was not legally recorded, a certified copy is not evidence. Certified copies are only evidence when given of legal records by the proper officer. 1 Greenleaf on Evidence, sec. 485. Organ Tanlum v. Benj. Young, 1 Porter’s Ala. Rep. 298. Mitchell v. Mitchell, 3 Stewart & Porter’s Ala. Rep. 81.
    But there is a second objection to the admissibility of the certified copy of the marriage contract. It is not shown that the secretary of State’s office is the proper repository of records of this description. Unless that be shown affirmatively, his certificate cannot make a copy evidence. 1 Greenleaf on Evidence, sec. 485. 1 Porter’s Ala. Rep. 258. 3 S. and P. Ala. Rep. 81. To keep records of this description, or to certify copies of them, form no part of the duties of a secretary of State, as that officer is recognized by the law of nations. His attestations and functions are confined to public matters of State, and can give no authenticity when applied to the private transactions of individuals.
    The certificate is not given by the secretary of state, but by a deputy. It is not shown that the secretary of State has a right to act by deputy. 4th. It is proved that the secretary of state was absent, and yet his name is signed by the governor to a certificate of the capacity of the deputy. It is not shown that the governor had any authority thus to sign the name of the secretary of State. For these reasons, the certified copy of the marriage contract should be rejected as evidence. But if this deed was properly recorded in South Carolina, there is no evidence that it ever was recorded in Alabama, or that Bagby had any notice of it whatever. He therefore should be regarded as an innocent purchaser.
    If these considerations be not sufficient to reject altogether the certified copy of the marriage contract, we will proceed to show, that even with its assistance the defendant cannot make out his case. Wp will show, that by the law of Alabama, Bagby’s title was good by prescription.
    Slaves in Alabama are regarded as personal property, and are conveyed like any other personal properly. They may be conveyed by delivery merely, without any instrument of writing. Foster v. Goree, 5 Ala. Rep. 424. Todd v. llardie, 5 Ala. R. 698. Salle v.Light’s Executor, 4 Ala. Rep. 700. Also 5 Ala. Rep. 199. I Stewart & Porter’s Ala. Rep. 59. 2 Porter, Ala. Rep. 449. 9 Porter, 649.
    The common law prevails in Alabama. Under that system the only actions which can possibly be brought against a party for the recovery of personal property, are trespass, trover and detinue. These actions are, by the statute of Alabama, all barred by six years. Clay’s Dig. 326, § 78.
    The evidence shows that Daphne, the mother of Sam, passed to Bagby after the death of Mrs. Yancey in 1821. This must have been about twenty years before the sale of Sam to the present plaintiff, and about twenty-two yeai’s before the time that Delane stole Sam and run him off to New Orleans. In order to avail ourselves of prescription, it is urged upon the other side, that we show “Bagby was a bona fide purchaser, or that his vendee held under a good title.” We contend we have done so. We have shown over twenty-five years possession in Bagby and his vendee. In the State of Alabama, possession of slaves and of all other personal property is evidence of ownership. Possession, then, is the evidence of title, and is just as good as a notarial actor deed under seal. If it be alleged that Bagby did not possess as owner, but in some other capacity, it is for the opposite side to show how he did possess; otherwise possession alone is sufficient evidence of ownership. It is not true, as a principle of law, in Alabama, that to enable a party to plead prescription, he must show a just title. Clay’s Dig. 255.
    But it is said, prescription does not run against minors, and that Delane was a minor. At the time he stole the slave in controversy he had been a major six years.
    It is urged in argument, that he had brought suits against Bagby, for some of the property he claimed to have inherited from his mother. There is no legal evidence of any suit whatever, and no evidence at all of any suit having ever been brought for Sam, who had been in the possession of the plaintiff since 1841. We are not informed what were the nature of the suits brought against Bagby, but they certainly were not suits brought against him for property which he had long since alienated. Whatever the suits were, they were all decided against Delane. If the plea of prescription cannot avail the plaintiff against the pretensions of the defendant, founded upon Delane’s title, we have still another objection which we think fatal.
    By the marriage contract between Mrs. Delane and Yancey, it was stipulated that the property of Mrs. Delane should be for the joint use and benefit of both the parties during their lives, and for the use and benefit of the survivor during his or her life; and upon the death of the survivor, the property was to be divided equally amongst all the children of Mrs Delane, as well those by her former marriage as the issue of the contemplated one. It was further stipulated, that neither should have the liberty of selling the property without the consent of the other. In consequence of their having reserved the right to sell the property, no immediate rights were vested in the children. It was, under the law of Louisiana, a mere donation de eo quod swperrerit, and was void both as to donor, donee and instituted heir. C. C. 1507. The legal consequence was, that the marriage contract was a nullity, and Mrs. Delane remained the absolute owner of the property at the time of her marriage; upon the happening of which event, by tire common law which prevails in South Carolina, the husband became the absolute owner. He consequently had the right to dispose of it by a good title. The same results follow from the common law and the statutes of Alabama. Estates in remainder are good at common law. But to constitute a valid remainder, the requisites of the Louisiana law in regard to usufructuaries and legal owners are to be observed. The legal title must be somewhere. 2 Blackstone’s Com. chap. 11, p. 164 et seq., old paging.
    Tlie reservation made in the marriage contract, of the right to sell the property, was inconsistent with the three requisites of a valid remainder, as laid down by Blackstone. If after marriage they possessed the right to sell, they possessed the right to give a good title. If they could do these things, they were absolute owners, and so were made by the very terms of the marriage contract. By it the whole property was conveyed to them, and there could not possibly exist a remainder. But even if they did not chose to sell, they might have done so ; and an estate at will is not sufficient to support a remainder. By the terms of the marriage contract, no estate vested eo instanti in the children ; it therefore did not create a valid remainder. The limitation made by Mrs. Delane, that the property after the death of the survivor was to go to the heirs of her body, created what at common law is styled a fee tail. She and her husband possessed an estate in fee tail; so did he after her death. 2 Black. Cora., b. 2, c. 7, p. 110. Now, in ¿uch cases, the statute of Alabama abolishing the entailing of estates, declares that the person so holding the estate shall be declared the absolute owner. Clay’s Dig. 157, § 37. An exception is made in the statute with regard to lands, but none as to slaves. If the estate created by the marriage contract was absolute in Mrs. Yancey, it became Yancey’s by virtue of the marriage.. . The attempt of Mrs. Yancey to tie up her property, and at the same time to have it untied, operated its own defeat; as often happens when persons grasp at too much: they lose all.
    But independent of the statute of Alabama, slaves, which are personal property there, cannot be entailed. 2 Black, Com., c. 7, p. 113, old paging.
    
      It evidently was intended by the marriage contract, to vest a remainder in the children. If the conveyance be valid in form, to give it effect against third persons in Alabama, it must have been recorded. This is clearly shown by the following extract from the statutes of that State: “And in like manner, where any loan of goods and chatties 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 three years, without demand made and pursued by due course of law on the part of the pretended lender'; or where any reservation or limitation shall be pretended to have been 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 aforesaid.” Clay’s Dig. 255.
    There is no evidence that the marriage contract, which created these remainders to the children, was ever recorded in Alabama. Clay’s Dig. 255, § 2, 4, 5. On the other hand the evidence shows that Yancey, from whom Bagby purchased Daphne, the mother of the slave in controversy, was in possession of her at the date of the purchase. Bagby's title as purchaser was protected by the above statute.
    If it be denied that he was a purchaser, we have shown that he was, by the presumption arising from the mere fact of possession. How otherwise could he have obtained Daphne from Yancey ? He must have acquired her either by gift or purchase. No one is presumed to give. It therefore follows, that Yancey sold the slave to Bagby, and did not pass her to him by way of donation.
    We have thus endeavored to show, that the defendant cannot defeat our claim by means of the pretended marriage contract. If in this we have been unsuccessful, let us examine that contract, and ascertain the rights of Delane, as determined by it. After the death of the survivor, the property was to be divided equally between the children. Hamilton testifies there were three children, Delane and his two sisters. Whether the sisters were born of the first, or second marriage does not appear. If they were born of the second marriage, they were the heirs of Yancey, their father, and were bound to warrant his acts. Bagby and his vendors would have recourse upon them as warrantors, in case of eviction from the property. Under such circumstances they could not recover. As the defendant has set up Delane's title, it was his duty to have shown affirmatively everything necessary to establish that title. He therefore' should have shown that the sisters not only had the right to sue for and recover the property, but also that they had in some legal manner transferred their rights to Delane. Neither of which requisites have been complied with.
    
      Delane's interest in the property was but one undivided third. He could not convey a greater interest than he himself possessed. Consequently, the defendant, "if given the full benefit of the marriage contract, as contended for by him, has a title for only one third undivided interest in the slave. This is the utmost he can be allowed, and the plaintiff must recover the other two thirds.
    The defendant claims, in his answer, the return of the price given by him for the slave, in case he be evicted.
    C. C. art. 3473, under which the pretension was set up, does not apply to immovables. Although slaves are personal property in Alabama, they are regarded as real property here, and the rights of the defendant under his purchase must be tested by our law. Consequently, he is not entitled to recover from the plaintiff the price given by him. C. C. 2427, 2134, 2135. Besides, the circumstances attending the sale were such as should have put the defendant on his guard. He did not give one half of the value of the slave. He is not therefore a bona fide purchaser.
    
      M. Grivot and C. Roselius, for defendant,
    contended : This is a petitory action, brought by plaintiff, to recover from defendant a slave named Sam, whom he alleges he purchased from A. P. Bagby, in April, 1841, and was run off from him about two and a half years after. Defendant denies title in plaintiff or Bagby, his vendor; alleges title in one Patrick H. Delane, from whom he purchased on the 3d November, 1843, by act before G. R. Stringer, notary. That Delane inherited Sam from his mother, Ann W. Delane. ■ He calls Delane, and Beard and Richardson in warranty. The plaintiff must take-out his title, or the defendant is discharged. ' What title does plaintiff show in himself, or his vendor, A. P. Bagby ? He produces a receipt for $600, for the price of a slave named Sam, and shows by the testimony of Or. B. Frierson, W. W. Frierson, and others, possession for a number of years. He has not, by any evidence whatever, attempted to show how, and in what manner, and from whom Bagby became possessed of Sam or his mother Daphne. The defendant, on the other hand, proves that in 1816, Mrs. Ann Wood Delane, the mother of his vendor, P. H. Delaney ,was the owner of Daphne, the mother of Sam, recognized in a deed or contract of marriage entered into between her and one John Yancey, in Richland district, South Carolina,- and duly recorded in the office of the Secretary of State of that commonwealth; wherein it is acknowledged that this slave is her property; that Yancey cannot sell the same without her consent; nor is it subject to his debts or liabilities ; that, in case of the death of either party, the survivor shall have the possession or usufruct,during his or her natural life only.
    We show a good and valid title: Mrs. Delane, owner of Daphne,- in 1816, had not parted with title or possession to said slave, up to the time of her death. In 1837, P. H. Delane became of age,- in 1841-’42, he laid his claim to the slaves, which his mother had possessed, and which, during his minority, Bagby had taken into his charge. In 1843, August or September, he took Sam into his custody. He was charged and accused by the plaintiff, Frierson, with stealing this slave. He was arrested and brought before several magistrates, but was always acquitted. Not content with these persecutions, Frierson, the plaintiff, who has been highly favored by nature, in being at the time auditor of public accounts, induced a presentment before the grand jury of Tuscaloosa county; an indictment was framed, and a true bill found against Delane for larceny of this slave Sam. Delane was put upon his trial; great efforts were made to convict him. Frierson, the auditor of public accounts, Wm. Garrett, the treasurer, were the witnesses. All the wealth and power of the State was brought in support of the accusation ;- even the high-sounding titles of senator, governor, ambassador to Russia, Bagby, were not omitted, to crush the poor Delane. But truth prevailed; and Delane was declared innocent — not guilty !
    We now state to this court, that there is-no plea of limitation oí prescription set up in the pleadings. This plea, if made, must be pleaded specially; in no part of -the record is it to be found ; therefore this court cannot take it into consideration. But admitting that it is made, is it sustained by the facts and the law as they are presented ? The statute law of limitations, and particularly that of Alabama, relied on by plaintiff, is a law applicable' only to the remedies ; it vests no ownership on the properly; it deprives one from the recovery of the possession, after a lapse of six years, but if that possession is regained by the owner, his title is not divested. The case of Brook v. Jenkins, is a case different from this. The defendant produced his title from various persons and possessions under those titles derived from the plaintiff’s mother. The statute of South' Carolina vested ownei’ship, with such titles in the possessor, for the possession was bond fide. So with us, one holding property in good faith, with a title translative of property, can maintain prescription. But a defective title, or no title, will not maintain the plea of prescription, unless it be that of thirty years. Statute laws of limitations being only applicable to the remedies, are to be construed solely by the lex fori. They never were intended to vest a title to property as good against all the world; such a plea might have been sustained in Alabama, but out of it, as against a title, never. If this statute of limitations is invoked by plaintiff, he must show clearly, that he comes within the provisions of the statute.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an action brought by the plaintiff to recover from the defendant, Patrick Irwin, a slave named Sam, and for the value of the services of the slave from the time of judicial demand. There was judgment in the court below for the plaintiff, and the defendant has appealed. The case has already been before this court, and was reported in 4th Ann. 277, and was remanded for the admission of certain testimony, and was tried before a jury, who found a verdict for the plaintiff. A new trial was granted for a cause, independent of the merits of the case, between the plaintiff and defendant. The cause was again submitted to the court, which rendered a judgment from which this appeal was taken. It appears, that in 1843, P. if. Delane took the slave from the possession of the plaintiff, without the consent of the latter, and ran him off from Alabama, where the plaintiff resided, to this city, where he was sold at auction, and purchased by the defendant, Irwin. Delane was charged by the plaintiff with stealing this slave ; the grand jury of Tuscaloosa county found a bill against him for the larceny of this slave. On the trial, Delane was acquitted. We have always discountenanced the practice, upon which we have been frequently called to act, of bringing slaves to this State for the purpose of defeating the rights of propei-ty in them, existing under the laws of the State from which they are taken ; and in the present case, we shall consider the rights of the plaintiff, and of the defendant, who stands in the shoes of Delane to the slave in question, under the laws of Alabama, as we have been enabled to understand them. The slave was born in the possession of the plaintiff’s vendor, A. P. Bagby, of Alabama, who came into possession of the mother, some time in 1821. The possession of the plaintiff’s vendor and his own, exceed the term of twenty years, including that of the mother and the son. We understand, that by the laws of Alabama, slaves are personal property, and that they may be transferred like any other personal property, by delivery, and that the actions at law, by which a slave can be recovered by his owners, are barred by the term of six years. The defendant sets up the minority of Delane during the time of the adverse possession of the slave. This fact, if established, would, undoubtedly, suspend the operations of the statute of limitations of Alabama. It is incumbent on the defendant to establish this fact affirmatively. This has not been done, and it does not appear that the minority of Delane extended to any portion of the six years preceding the date of the inveiglement, and wrongful taking possession of the slave by him in 1843. We understand that the possession of the slave for a sufficient time to bar all actions for his recovery, as constituting a title, under the jurisprudence of Alabama. In the State of Kentucky, in which we have decisions, under a statute of limitations" similar to that of Alabama, we find it is held, where a party has been a possessor of slaves for five years, he becomes thereby vested in virtue of the statute of limitations, with such a right as to enable him to recover them of their former proprietor, who may since have obtained possession. Stanley v. Hart, 5th Littel Reports, 281. Thompson v. Caldwell, 3d Lit. Rep., 136. Cooke v. Wilson, Littel, Selected cases, 436.

From the best judgment, therefore, we can form of a jurisprudence which is not our own, and with which we do not profess to be familiar-, the slave, under the laws of Alabama, would be the property of the plaintiff We must not be understood as recognizing, in any manner the title of Delane to the slave at any time, as we have seen he was born in the possession of Bagby. The plaintiff claims title in the slave, by virtue of his heirship to his deceased mother, (who was the owner of the slave Daphne, the mother of the slave in dispute,) under a certain marriage contract made in the State of South Carolina, in 1816, between her and John Yancey, her husband. This marriage contract was not recorded in the State of Alabama, to which the parties afterwards removed, nor does it appear to have been properly recorded, under the laws of South Carolina, or that the title in the slaves, which, we observe, are movable properly by the laws of South Carolina and Alabama, can be maintained against a third person in possession, under the circumstances of this case. It is a principle of the civil law, that there are no presumptions in favor of a spoliator, and we find no ground on which the judgment of the district court can be reversed. It is therefore affirmed, with costs.  