
    
      William H. Ruff and Wife vs. John Thomas.
    
    In. 1817, J. A. M., the father ofplantiff’s wife, who was illegitimate, purchased through his agent, J. T., the defendant, certain slaves, at the sale of P. S., deceased. They went into J. A. M’s. possession, and remained a year, (except a girl called Hala, mth her increase, the subject of the suit.j At the end of that time, J. S. a son of the deceased, P. S., made an arrangement, by which he assumed J. A. M’s. purchase, allowing him the services of the negroes for the year then past, without charge or interest. ' J. S. carried the negroes with him to the west, except the girl Hala and her mother. They were left at his mother’s, Mrs. S., where plaintiff’s'wife and her mother, a daughter of Mrs. S., (afterwards Mrs. L.) resided. During the year, and soon after J. A. M. bought, Hala was sent to the plaintiff’s wife’s mother, where she was when J. S. bought. Before the sale to J. S., it was proved that J. A. M. had frequently said he had given the girl Hala to his daughter, plaintiff’s wife. The girl H. and her mother remained in Mrs. S’s. possession from 1818 till they were sold by the sheriff, in 1830, under an attachment against J. S., and purchased by the defendant, J. T. Up to 1824, it was proved that Mrs. S. spoke of the negro girl H. as the property of her grand daughter, plaintiff’s wife. After that period, on some occasions, she (Mrs. S.) spoke of the girl (H.) as the property of her son, J. S.; and at others as that of her grand daughter. It was held to be a question of fact for the jury, to determine what was the character of Mrs. S’s possession. Also, that if the girl H. came into her possession, when her danghter and grand daughter were living with her, and was held by her under a title, real or imagined, ascribed to the grand daughter, the possession continuing for four years after the right of J. S. was vested, that the grand daughter acquired against J. S. a title by the statute of limitations. Also, that Mrs. S’s. subsequent acts or declarations could not divest the title during the minority of the grand daughter. New trial ordered, to determine whether such statutory title had been acquired.
    
      Before O’Neall, J., Union, Fall Term, 1842.
    The presiding Judge reports the ease as follows :
    This was an action of detinue for a negro woman, Hala, and her children, Martha, George, Mary, Ben, Columbus,- and Victoria.
    On the 29th of December, 1817, the negro woman, Hala, (or Mahala,) then a girl, with her mother, Patt, and several men, were sold by Col. Benjamin Maybin, as the executor of Patrick Sims, deceased, and purchased by the defendant, as the agent of James A. Moorman. Col. Maybin accepted Col. Moorman’s note, with Robert Moorman as security, and David Thomas’s promise, by letter, to sign as security, and let the negroes go into the possession of Moorman, where they all remained, (except Hala,) for a year. At the end of that time, John Sims, a son of the deceased, who lived in the south-west, came in, and from Moorman’s conduct to his sister, (having, previous to his father’s death, seduced her, and had by her an illegitimate child, the wife of the plaintiff,) was unwilling that he should have any of his father’s negroes ; he therefore proposed to take Moorman’s purchase, allowing him the services of the negroes for the year, then past, without charge or interest. This arrangement was made, and John Sims carried with him to the south-west the negroes bought by Moorman, except Patt and Hala. They were left at his mother’s, where the plaintiff’s wife and her mother, Cicely, (afterwards Cicely Liles,) resided. During the year, and soon after Moorman bought, the negro girl Hala was sent to the plaintiff’s wife’s mother, where she was when John Sims bought. The defendant’s wife is the sister of Mrs. Cicely Liles, and the aunt of the plaintiff’s wife. In 1818, and before the sale to John Sims, Moorman told Nathan Sims that “ he had given Hala to his daughter,” the plaintiff’s wife. The defendant tlien threw open the door to Moorman’s declarations generally, about the gift, by proving by William W. Glenn, that in 1826, Moorman told him he had never done any thing for his daughter. James Dickinson proved that Moorman had often told him “ he had given’ the girl Mahala tó his daughter, and that in a conversation with the defendant, after he had bought the negroes, he (the witness,) urged that the gift to the plaintiff’s wife was good; the defendant said Moorman had nothing to give, as he (the defendant) had bought the negroes at the sale of Patrick Sims, deceased, and had never conveyed to Moorman. To Nathan Sims, Moorman, after the sale to John Sims, said he had given his daughter one negro, and he would give her ten. Moorman’s character was very abundantly proved to be that of a man who talked large, and boasted much. He was, in 1818, reported to be very rich, but in 1828, failed to a large amount; one of his debts still unpaid, reached back beyond 1818. From 1818, to the sale by the sheriff, hereafter to be spoken of, the girl, Hala, and her mother, Patt, were at Mrs. Sims’s, the mother of John Sims, and of the plaintiff’s wife’s mother, who, with the plaintiff, Mrs. Ruff, resided there. From 1818 to 1824, Col. Jesse Maybin, the son-in-law of Mrs. Sims, said that she spoke of the girl Hala as the property of Mrs. Ruff; after that time she spoke of her as the property of her son, John. In 1822, Tarleton Murphy was Mrs. Sims’s overseer; he said that the girl was put into the crop by her; in the course of the year he whipped her, and the plaintiff’s wife, who was then a little girl, cried about it; the old lady asked him not to whip her any more, as she was Amanda’s (Mrs. Ruff’s) property, and when she was whipped, it made a fuss in the family. James Dickinson proved, that from 1824, for five years, lie was the overseer, or in the employment of Mrs. Sims. During that time, she spoke of the girl Hala as the property of John Sims. In 1829, a'Mr. Thomas overseed for Mrs! Sims; his widow proved that Hala was put in the crop under her husband, who was to have a part of the crop as his compensation. In the course of the year, the old lady said that John Sims had written he was coming for the negro, Hala, and asked Mr. Thomas what she should do if he came before the crop was finished. He told her she would have to hire another in her place. Mrs. Liles proved that the defendant, Thomas, knew of the gift. Nathan Sims was the security of John Sims to Col. Maybin, for the purchase money of the negroes, and was compelled to pay a part of it. He made no attempt to collect it out of Mahala and her children, as the property of John Sims. William Sims, to whom John Sims was indebted, attached the woman Mahala and her children, (if she then had any,) and they were sold the 1st of March, 1830, as the property of -John Sims, and purchased by the defendant. The woman Hala now has six children, whose names are mentioned in the beginning of this report. A demand and refusal was proved. The writ was issued a month or so before the plaintiff, Mrs. Ruff, would have been barred by the statute of limitations.
    The declarations of Mrs. Sims, as to the manner, and for whom she held the negroes, were received without limitation. I thought, when once introduced, they were generally to be heard.
    I thought, and so charged, that the plaintiff’s wife, against John Sims, could not, by the possession of her grand-mother, Mrs. Sims, acquire title by the statute of limitations, for there was just as much proof that she held for John Sims, (and that too of late character,) as that she held for Mrs. Ruff.
    The jury were fully instructed on all other points involved in the, case, but as my charge is in no other .respects excepted to than those which I have noticed, I deem it unnecessary to report it more fully.
    The jury found for the defendant.
    The plaintiffs appealed on the annexed grounds:
    1st. Because the court permitted the defendant, after the plaintiffs had proved fully and clearly the declarations of old Mrs. Sims, that she was holding the negroes for the plaintiff’s wife, to prove by her declarations, made many years after, that she held the negroes for John Sims, her son.
    2d. Because the court held and ruled, that the plaintiffs could not acquire a good title under the statute of limitations, to Mahala, against John Sims, though it was proved the negro was held more than seven years by and for the plaintiff’s wife.
    3d. Because the gift was fully and clearly proved by the declarations of Moorman, the plaintiff’s wife’s possession of the negro, and were, by the confessions of the defendant, as proved by his own witness, that the gift had been made.
    4th. Because the court erred in charging the jury that the operation of the statute of limitations, in favor of plaintiff’s wife against the claim of John Sims, could be affected by the declarations of Mrs. Sims, her grand-mother, made more than five years after she said she was holding the negro for plaintiff’s wife.
    5th. Because the verdict is against law and evidence, and the opinion of the court.
    6th. Because the plaintiffs have, since the trial, discovered testimony to prove, that at the time John Sims agreed to take the negroes from Moorman, it was expressly agreed that the plaintiff’s wife should retain Mahala.
    Thomson, for the motion. Herndon, contra.
   Curia, per

Wardlaw, J.

If in this case the jury, fully instructed, had been left to decide, as a question of fact, what was the character of Mrs. Sims’s possession from 1818 till 1824, this court would not have disturbed the verdict. But the jury were charged that the “ plaintiff’s wife against John Sims, could not, by the possession of her grand-mother, Mrs. Sims, acquire title by the statute of limitations.” And although the reason given, as to the proof on both sides, would seem to imply a submission of the evidence to the jury, the expression of opinion went rather as a point of law, arising from the proof, and no distinction was made between the different periods at which the conflicting declarations of Mrs. Sims were made.

Now, it appears to the court, that the declarations of the person having possession, made at the time, (more especially if the declarations were made when no motive to misrepresent existed, and the person is since dead,) are admissible to shew whether a possession was adverse or not, and in whose right it was held; and that, therefore, Mrs. Sims’s declarations may have been admissible on both sides. If, then, the girl Mahala came to Mrs. Sims’s possession when her daughter and grand daughter were living with her, and was held by her under a title, real or imagined, which was ascribed to the grand-daughter, and the possession so continued for four years after the right of John Sims was vested, the grand-daughter acquired against John Sims a title by the statute of limitations; and no subsequent acts or declarations of the grand-mother could divest that title during the minority of the grand-daughter, The jury must, then, decide upon this statutory title as upon the other facts of the case, and a new trial is ordered.

Richardson, Earle, and Butler, JJ., concurred.  