
    
      Jesse Deloach vs. R. R. Turner.
    
    Where son-in-law enters upon land under a conveyance from fatlier-in-law, expressed to he for valuable consideration, no presumption arises that the land was intended as a gift.
    A slight acknowledgment, made before the statutory period is complete, is sufficient to take a case out of the statute of limitations.
    Motion by plaintiff to strike out certain counts, made during the trial and after he knew that the presiding Judge thought he could not recover on those counts, refused.
    
      Before O’Neall, J., at Beaufort, Fall Term, 1853.
    The report of his Honor, the presiding Judge, is as follows :
    “ This was an action of assumpsit brought for the recovery of three items, viz : first, the price of a tract of land sold and conveyed to the defendant, $800 ; second, the hire of Isaac, a slave, from the 1st January, 1846, to 1st January, 1850, $300; third, the price of Isaac as sold 1st January, 1850, $800.
    
      “ The plaintiff claimed and counted for interest on these various sums ; he also declared on an account stated.
    
      “ The grounds of appeal so strangely misapprehend and misstate my charge, that it becomes necessary to state the whole case.
    “The case was tried. Spring Term, 1852, before my late brother Evans, and sent back for a new trial last January sittings in Charleston, (see 6 Rich. 117.)
    “ To understand the proof, it may be proper to state, that the defendant in 1838, married the plaintiff’s daughter; she had one child, and died in 1839. The plaintiff is an old man, who seldom leaves his house; the defendant is an active managing man, and who was for many years the agent of the plaintiff, in transacting his business, both receiving and paying money for him.
    “ The defendant pleaded, first, the general issue — second, the statute of limitations — third, he relied upon a discount.
    “The plaintiff’s writ was issued 21st October, 1850. It clearly appeared, that the sale of the land took place on the 5th of October, 1846, although the deed is ante-dated 1st July, 1846.
    “ Jacob P. Griner, a son-in-law of the plaiutiff, proved that he witnessed the deed, conveying by the plaintiff, four hundred and sixty-four acres of land to the defendant for $800, (it bears date 1st July, 1846); but it was executed on the day on which it was proved, and the renunciation of dower was taken; both are dated 5th October, 1846. He said, he thought the deed was in the handwriting of the defendant — but subsequently, on having his attention more particularly turned to it, he pointed out parts of the deed, which he certainly believed to be defendant’s writing. He said, when he got to Deloach’s, the defendant was writing (he supposed) the deed ; — he said it was not ready. There was no money paid. This witness knew Isaac, the plaintiff’s slave; he was in the defendant’s possession in ’48, and continued until ’50, and beyond it; the plaintiff has not had him in possession since ’50. The defendant, in ’48, told him that he took Isaac to break him as a runaway — but he thought it could not be done — he would, he said, ship him, if the plaintiff would permit it — but he would not. He (the plaintiff) had, however, the defendant said, promised to take a woman for him — and as soon as he could get one, he would make the exchange. Isaac, he said, was a prime fellow, worth $75 or $80 per year for hire — he was, however, a runaway. He said, he heard the defendant say, the land was worth $3 per acre. The plaintiff, Deloach, he said, was a bad manager.
    “The Rev. John W. Nix was sworn, and proved that, at the request of the plaintiff, he went to see the defendant. This, he said, he thought was on the 3rd or 4th of September, 1850. He was very particularly examined, as to his reasons for fixing that time, and by referring to the Almanac of that year, the period of his Church meetings, the time of bearing a message to Mr. Davant, &c., he came to the settled conclusion, that it was on the 3d or 4th of September. He then told the defendant, he came from the plaintiff, and was directed by him to settle with the defendant. He told him, the plaintiff claimed for the hire of Isaac for four years, at $50 per year, and for the present year (1859) at $100 ; that he also claimed $800 for the price of the land, and that he was authorized to deduct the defendant’s accounts against the plaintiff, whatever they might be.
    “ The defendant said, he had never hired a negro ; he had bought one ; that he was ready and willing to settle, and pay in ten days, if the plaintiff would admit the sale of Isaac. The witness said to him, take more time — and finally, thirty days was agreed on. The defendant told him to tell the plaintiff, he would pay every dollar he owed him within that time, if he would admit the sale of Isaac. Witness repeated to him, $800 for the land — $400 for Isaac; the defendant said, yes. He was to come to the house of the witness on the Monday or Tuesday following to learn the plaintiff’s determination. On seeing the plaintiff, he denied the sale of Isaac, and refused to settle on such terms; this he communicated to the defendant. This witness said, there was no dispute about the land; the dispute was solely about Isaac. In the course of the cross-examination, he said he had kept back matters, at the request of the defendant, and by a promise to him not to disclose it. He appealed to the defendant for permission to state it; it was given ; he then said, the defendant told him, ‘ if the plaintiff would not admit the sale of the negro, he would not pay for the land.’
    “ On that, or some other occasion, the defendant said, rather than have a dispute with his father-in-law, he would pay for the land.
    
      “ James R. Garvin proved, that he knew Isaac — saw him in defendant’s possession. He told him last August, he had exchanged him for a woman and child. Isaac was a runaway ; he would not want such a negro.
    “ Here the plaintiff closed. The defence was gone into. The defendant first relied on a discount, $365 08, which stood upon an admission at a former trial. The plaintiff undertook to show, and did show, that $68 93 paid to Bryant, and the taxes, $ 13— total, $81 93, charged in the account as paid by the defendant, were paid by the plaintiff himself; so, too, he proved that $100 charged as paid Dr. Duncan, was paid (if ever paid) out of money which he put in the defendant’s hands to pay it. On the 6th December, 1.848, it appeared that the defendant received in Savannah, money belonging to the plaintiff, $77 66. Deducting this sum, and the items previously mentioned, it reduces the defendant’s discount to $105 55, which the jury allowed.
    
      “ Alexander W. Dailey, once a Magistrate for Beaufort District, was examined by commission, and proved that in ’46, he took the renunciation of dower by the plaintiff’s wife to the defendant, on the deed for the land. He said he did not certainly know whether the land was a sale or a gift. In the conversation about the renunciation of dower, the plaintiff said it was not necessary to renounce, on a gift.
    
    
      “ Mr. McKenzie proved, that the body of the deed was in the handwriting of A. M. Martin, Esq. The date, and the inter-lineations, and the words, “ interlined before signed,” are not in the same hand as the body. (This was the writing which Griner identified as certainly the writing of the defendant.)
    “Jacob P. Griner was recalled in reply, and proved, that while the jury was in their room on the former trial, he heard the defendant say, he had not paid for the land. This witness contradicted Dailey about the conversation in relation to the dower. He said the talk was with Mrs. Deloach; the plaintiff said, on being appealed to, that it was necessary for her to renounce her dower.
    “ The case was very fully argued, and I carefully submitted it to the jury. They were told that there was no evidence to support the count for the sale of the negro. The defendant had sold him since this suit; but that could not be here noticed.
    “ They were told to inquire, whether the land was sold, or given 7 They were told, that there was mo legal presumption of a gift of land which would confer title. To do so, under a gift, there must be ten years adverse possession ; that the rule of presumption of a gift from possession was in the case of personal chattels on the marriage, or after the marriage of a child. They were referred to the facts in this case, such as the deed stating a money consideration, that no money was paid, the admission to Nix and Griner, the death of the plaintiff’s daughter before the deed, and the proof of Mr. Dailey, and its contradiction by Mr. Nix. From these they were to decide, whether the land was sold ? If sold, was $80Ü the price — and was that sum unpaid ? They were next told to inquire as to the hire of Isaac ? Did the defendant have him to break him as a runaway, and to pay nothing for him? If so, nothing ought to he allowed for hire. But if his services were valuable to the defendant, and they were not intended to be gratuitous, then he ought to pay reasonable hire for the time he had him before suit brought.
    “On the statute of limitations, the jury were told, if the promise, or admission proved by Nix, was made on the 3d or 4th of September, 1850, it would be before the statute had run out from the sale of the land, 5th October, 1846 ; in such case, the law did not require as much as when the statute had run out. Any admission then made, which satisfied them that the defendant admitted the sale of the land to him, and that it was still unpaid, would be enough. They were told, if the statute had run out before that promise or admission, then, however hard a case it might be for the plaintiff to lose a debt, by fifteen or sixteen days, still it was the law, and it must be obeyed.
    “ They were here instructed in such a case, that the law required an explicit promise to pay, or an admission of a subsisting debt, which the party was willing and liable to pay. If conditions were annexed to the promise, they must be shown to be performed, or the plaintiff could not recover. The facts relative to the admission proved by Nix, and his title to credit, were all left to the jury. /They were told, if the admission was, I owe $800 for the land; and, if the plaintiff will admit the sale of Isaac at $400, I will pay $1200 in ten days, it might be considered that the admission of the sale of the land was absolute, and the indebtedness certain, and the whole dispute about the sale of Isaac, as the witness stated ; then, that I thought such admission would be quite sufficient, if made before the statute run out. I told the jury, that if Mr. Nix ignorantly, and at the instance of the defendant, held back a part of the facts, it might not affect his credit; but they were told they had heard and seen all which I had heard or seen ; and they knew the witness : it was for them, therefore, to believe or disbelieve him. The jury were told they could not allow interest. They found for the plaintiff, $800 for the land — $100 for the hire of Isaac— and allowed the defendant a discount for $105 55, which, being deducted, left $794 46; for this last sum they ultimately found for the plaintiff.
    
      “ The plaintiff, after the case was on trial, and after he knew that I thought he could not recover on the proof for the price of the negro alleged to be sold, moved to strike out his counts in that respect.
    “1 thought I could not make such an order, without the consent of the adverse party. This was not given.”
    The defendant appealed, and now moved this Court for anew trial, on the grounds:
    1. Because his Honor charged the jury that no presumption of a gift could arise in respect of land, short of ten years— though the son-in-law was in possession with an absolute title.
    2. Because his Honor charged that no such presumption could arise after Mrs. Turner’s death, although she left a child living at the time of the execution of the deed, <fcc., which is still alive.
    3. Because his Honor charged that it was a “ hard' case” for plaintiff to be barred as to the land by only sixteen days.
    4. Because his Honor charged that if the statute had not run out before defendant’s admission to Nix, the condition annexed to it by defendant need not be regarded.
    5. Because his Honor charged that the admission by defendant was tantamount to this: “ I owe $800 for the land — and if plaintiff will take $400 for the negro, I wild pay the $1,200 in ten days.” Whereas, this was a question entirely for the jury.
    6. Because his Honor charged that the defendant might be liable for the hire of the negro by virtue of his possession, although it was proved that defendant had taken him “ to break as a runaway,” and no demand of said negro was proved.
    
      7. Because his Honor charged that though Nix knowingly held back part of defendant’s statement, yet it should not affect his credit, if done to favor defendant.
    The plaintiff also appealed, and now renewed, in this Court, his motion to amend, by striking out the counts in his declaration for the price and value of Isaac.
    
      Tillinghast, for defendant.
    
      Fickling, contra.
   The opinion of the Court was delivered by

O’Neall, J.

In this case, on the appeal of the defendant, very little need be said.

The two first grounds of appeal are explained and answered by the report, in a way perfectly satisfactory to this Court. No one has ever had the hardihood to argue, that mere possession of land by a son-in-law, as of a negro slave, would raise a presumption of gift. Such a possession, with ten years adverse use, may confer title. (Sumner vs. Murphy, 2 Hill, 488 ; Simmons vs. Parsons, Id. note, 492; Roberts vs. Roberts, 2 McC. 268.)

The deed spoken of in connection with this supposed presumption, was the evidence of an absolute sale. But the defendant had the full benefit of that, in connection with the question of gift or no gift, on which the jury passed.

The 3d, 4th and 5th grounds relate to the sufficiency of the acknowledgment by the defendant of his indebtedness for the land, to take the case out of the operation of the statute of limitations.

Before Young vs. Monpoey, 2 Bail. 278, the Courts of this State had held that “ every slight acknowledgment” of a debt was enough to take the case out of the statute. That case acknowledging the propriety of the rule, where the statute had not run out, held that it was inapplicable to cases where it had run out. The rule, that a slight acknowledgment when the statute had not run out would be sufficient, was recognized in Silman vs. Silman, 2 Hill, 416. In this case, when before this Court a year ago, 6 itich. 117, this distinction was recognized. On this occasion, if the jury believed Nix, the acknowledgment was made before the statute had run out, and was a very distinct admission of a subsisting debt. There can, therefore, be nothing in this respect to cause a new trial.

So the 6th and 7th grounds, as explained by the report, were unmixed questions of fact for the jury, and there is no reason arising out- of them to disturb the verdict.

The defendant’s motion is therefore dismissed.

On the motion of the plaintiff to strike out the counts relating to the sale of the negro slave Isaac, it is necessary to barely remark, that this was not an application for leave to submit to a non-suit, or discontinuance, as was the case in Branham vs. Brown, 1 Bail. 262. The motion was more an application to amend the declaration by striking out counts than anything else. In Glenn vs. McCullough, 2 McC. 212, an application was made to amend after the Judge’s charge ; it was held it could not be done. This doctrine is repeated in many subsequent cases, and it is not necessary to argue it further.

If this could seriously prejudice the plaintiff, we might hesitate about refusing his motion. But this record will not bar his right, in a subsequent action, to recover the price of the slave on the testimony of Garvin. For that showed a sale subsequent to the plaintiff’s writ, and the amount could not therefore be recovered in this case. This may be shown by parol in any subsequent case which he may bring. (Henderson vs. Kenner, 1 Rich. 474.)

The plaintiff’s motion is also dismissed.

Withers, Whitner, Glover and Munro, JJ., concurred.

Motions dismissed.  