
    CONSTITUTIONAL COURT, COLUMBIA,
    MAY, 1810.
    James Vernon’s Administrator v. Margaret Inabnit.
    A man cannot, by a deed of gift, carve out a life estate for himself, and ’ limit over the remainder of a slave to another. The whole vests in the remainder-man, or the remainder is void.
    Motion for a new trial. . The action was trover, for the conversion of four negro slaves, tried in Orangeburgh district, before Smith, J. The plaintiff claimed the negroes by virtue of a deed of gift from John Vernon, senior, to his three sons, Richard, John, and James, dated in October, 1788, which deed was not recorded till April, 1804. The said deed gives to the plaintiff’s intestate a wench, of whom the negroes in question are the issue, or offspring. It appeared that John Vernon, senior, departed this life in the latter part of the year 1805; and that his son, the intestate, died in March, or April, 1793.
    A witness for the defendant testified, that about the year 1786, the donor, John Vernon, senior, made and executed a bill of sale to Samuel Inabnit, for a valuable consideration, of the negro wench in question, That he, the witness, drew the bill of sale, and witnessed the execution of it. That Samuel Inabnit afterwards mar. ricd the daughter of John Vernon, senior. It did not appear what liad become of ¡be bill of sale. The defendant alleged lhat it was lost, or destroyed ; and gave evidence to shew, that Samuel Inabnit was a careless man, without any permanent place of residence. That his papers were very negligently kept by him.
    It appeared that Samuel Inabnit died about the year 1797, leaving his widow, the defendant, in possession oflhe negro wench in question, who had been in his possession since the date of the bill of sale, i. e., from the year 1786. The evidence of the bill of sale, was objected to on the part of the plaintiff, and was held by the court to be incompetent, on the ground that the loss, or non-production of that instrument had not been sufficiently proven, or accounted for. And the court refused to admit parol evidence of a sale of the wench in question, by John Vernon to S. Inabnit, as evidence had been given of the existence of a bill of sale. It appeared in evidence, that James Vernon, the intestate, was killed in the year 1796, a minor, and that he left neither wife, or child. It fmiher appeared that the deed of gift to the three sons of the donor, was conditional, that the donor should Jceep possession of the negroes given during his life, and that after his death they should pass into the possession of the donees, respectively. It further appeared, lhat provided this deed of gift was valid, and vested the property of the wench in question, in James Vernon, that the present action would be saved from the operation of the limitation act, by reason of the minority and death of the donee, and the condition of the gift-
    The verdict ivas for the plaintiff.
    The argument on the motion for a new trial took place in No. vember, 1809.
    In support of the motion, Nott, and Stark, for the defendant, contended, that the deed of gift under which the plaintiff claimed, was fraudulent, and ought to be so considered, under the circumstances of the case. That the evidence of a sale to Inabnit ought to have gone to the jury ; and that the plaintiff was barred by the operation of the act of limitations, which had been pleaded. He cited, in the course of his argument, 1 New York Cases in Error, Appendix 27. 3 T. R. 151. Esp. Rep. 337. 2 N. Y. T. R. 365.
    Hooker, contra,
    
    contended, that only the existence of a bill of sale to Inabnit was proved, but that the contents thereof were not proved ; and., therefore, there was no evidence of a sale. That the plaintiff’s right to recover rested on his own title, which was valid in law. That the limitation act could not run against the plain. tiff’s intestate’s right, while the donor had possession under the condition of the deed of gift; and that after his death, the administrator of the donee commenced the action in time. No proof of a conversion was given, but of a demand and refusal, just before action brought. The limitation act did not attach until then. 4 Bac. Abr. Tit. “ Limitations of Actions.”
   2d May, 1810.

BkevaRD, J.,

delivered the opinion of the whole court. That as there was no evidence to prove that the negro woman in question had come, by fraud, into the possession of Samuel Inabnit, or that she was held, or withheld, fraudulently ; or that she was delivered to Inabnit, as trustee, or bailee, the presumption was extremely strong, under all the circumstances of the case, that he acquired the possession by purchase. That his possession was adverse to the claim of old John Vernon, and all others deriving a title from him. Nothing appeared, in evidence, to shew that the donor and donee, were ignorant of Inabnit’s possession. It seems, therefore, clear, that their claims were completely barred by the act of limitations during the life of old Vernon. The adverse possession of Inabnit continued from the year 1789, until this suit was commenced. But it has been contended, that this adverse possession ought not to^affect the right of the donee, who was an infant; and it seems Inabnit had not possession until after the gift to James Vernon, who was not, by the terms of the gift, to have possession until after his father’s death, who had reserved to himself a life estate in the property. My opinion, however, is, that the tact of limitations did attach, and operated to bar the estate and ■title of old Vernon, and that James Vernon’s remainder under the deed, could not take effect. As to the bill of sale, it must be put out of. view altogether. The loss of that instrument was not considered by the court, on the trial, to have been sufficiently proved, so as to authorize the admission of evidence to prove its contents. Its contents could not appear, and, therefore, it seems to me, there would have been no impropriety in the admission of parol evidence, not connected with a contract in writing, to prove a sale of the negro to Inabnit. Again, it appears to me, that the possession of the wench should have been left to the jury, as presumptive evidence of a purchase, under the circumstances of the case. The possession of a personal chattel is always considered prima facie evidence of property. In this case, the great length of possession afforded the strongest presumptive evidence of a transfer. It is almost the only evidence which can be adduced to prove property in a personal chattel, as few purchasers are careful enough' to take bills of sale, or can produce evidence of a bargain and sale. This evidence may, I think, in general, be depended on. At any rate> should be deemed sufficient to throw the onus probandi on the party claiming in opposition to such possession, to remove the presumption it affords.

But if the deed of gift transferred a title to the plaintiff’s intestate, which was not barred by the operation of the act of limitations, it matters not whether the sale to Inabnit was proved or not, as the sale was subsequent to the gift. It is therefore necessary to investigate this gift, to ascertain whether the intestate took any, and if any, what estate, or interest under it. Now the possession of Inabnit, so inconsistent with the condition of the gift, and to the gift itself, together with the circumstance of the deed’s not being recorded till the year 1804, affords a very strong presumption against the fairness of the transaction. But the deed cannot take effect according to the meaning and intent of it. It is settled law, that a man cannot limit a personal chattel to one for life, and the remainder to another, except by will, or by deed of trust. In the first case, the property passes by way of executory bequest; and in the second, it vests in the trustees, for the uses and purposes in the deed declared. Now if a life estate in a chattel cannot be carved out by deed, without the intervention of trustees, in whom the legal •.-estate must vest for the benefit of others ; with what propriety can it be contended that a man may carve out of a chattel interest, a life estate for himself, and convey the remainder, which, from the nature of the interest, must be uncertain and contingent, to another, to vest in the remainder-man after the death of the donor ? To allow such gifts, would be mischievous in the consequences which would result to creditors, and subsequent purchasers. And besides cui bono, what necessity for such gifts, when the same effect may be produced, and the same object attained, by a last will and testa, meat ? We are of opinion the deed of gift passed no property to the donee, as possession did not accompany and follow it.

New trial granted.  