
    
      Mary Anne Jones, executrix of Joseph P. Jones, v. Charles Jones.
    
    The declarations of a deceased witness, made mte litem, nmtam, are admissible to aid the presumption of a remote transaction.
    If the donor had the right to dispose of personal property, her declarations that she had done so to the donee, are admissible in support of his title.
    As the agent of her husband, the wife may sell or convey; and the jury are to decide, from the facts and circumstances of the case, whether she was so authorized.
    Under a deed of separation, the wife may have the same jus disponendi as if she were sole.
    After twenty years separation of husband and wife, and a separate enjoyment on her part of personal p-opert/y, and repeated unchallenged nets of disposition of it on her part, the Court, to give effect to her disposition of it, will presume that on the separation, the husband executed a post nMptial settlement, conveying the property to a trustee to hold to the uses-Jirst, that she might separately enjoy it; and second, that she might, as a. feme sole, sell or give it in her life time, or at her death bequeath it as she pleased.
    
      
      Before O’Neall, J. at Edgefield, Fall Term, 1847.
    This was an action of trover for the recovery of the value of a slave named Isaac. There was no doubt that the slave had been the property of Mary Jones, (now deceased,) and that in her life-time she had conveyed him to her son, Joseph P. Jones, the plaintiff’s testator. The main question in the case was, whether she could convey to him. She was the wife of one Perrin Jones : she and her husband died in a few days of one another. They separated in 1819, and lived apart from that time to her death, in 1844. At the time of their separation, she had in her possession the slaves Soo-key and her son Isaac. Over them, as well as the other property which she afterwards acquired, she exercised all the rights and the power of a feme sole. In 1822, or perhaps a little before, at the sale of her father’s estate, she purchased Fortune, and to indemnify Hughes Moss, in being her surety for the purchase money, she executed, on 23d January, 1822, to him, a mortgage of Fortune, Sookey or Susan, and Isaac. This appeared by a copy of the mortgage, taken from the records of the register of mesne conveyances of Edgefield district. Before this was given in evidence, it had been proved by L. B. Cochran, that Hughes Moss, deceased, told him such was the fact. The record of the bill and other proceedings in equity, for the partition of the estate of Thomas Jones, (deceased,) the father of Mary Jones, in the case of Wm. Wash and Wife v. Wm. Jones, Perrin Jones and Mary, his wife — and the cross bill of Wm. Jones v. the complainants and the other parties, were given in evidence. It appeared, that without any order giving leave to answer separately, Mary Jones, on the 11th January, 1824, filed an answer, in which she stated that .she and her husband, Perrin Jones, had separated by mutual consent, and were, then, living apart, and that by articles regularly executed, they had renounced all claims upon the property of each. The commissioner made two reports, one of the 25th of January, the other of the 10th of May, 1825, in one of which, Sookey, the mother of Isaac, was set down as an advancement by Thomas Jones to Mary Jones. In the other the commissioner speaks of the separation between Perrin Jones and Mary Jones, and the execution of articles, and recommends that the property acquired by her, from her father’s estate, should be settled upon her. The report was confirmed by the Court, and an order made, that her share of her father’s estate should be paid to her, independent of the claim of Perrin Jones.— Perrin Jones did not answer, or in any shape interfere with the proceedings in equity. Various recoveries, in the Court of law, for debts against Mary Jones, as a feme sole, were given in evidence. In one of these cases a levy was about being made, and to prevent it, application was made by the defendant, who had married a daughter of Perrin and Mary, Jones, to Perrin Jones for the loan of money; he refused to lend it, until Mr. Mims became the surety. When the deputy sheriff did levy on a negro girl, as the property of Mary Jones,' and told Perrin Jones of it, he asked the deputy why he did not levy on Isaac. He replied that he understood Mary Jones had given Isaac to Joseph P. Jones. Perrin Jones, who was then old and blind, was helped into another house in his yard, where Mary then lived with the defendant, and asked her if she had ever given Isaac to Joe. She said yes. He exclaimed, “ good God, what will the devil do with you ?” The old man, Perrin Jones, frequently spoke of the indebtedness of the old lady, said she would not make her negroes work, and she would have to sell property. He said, too, he was anxious that their respective property should be equally divided among their children ; but he said the old lady would not divide equally; he said she could do as she pleased. It appeared that Joseph had advanced money, and purchased provisions for his mother. A bill of sale, executed by Mary Jones to Joseph P. Jones, of the slave Isaac, dated 24th May, 1838, with another paper covenanting on the part of Joseph P. Jones, that his mother should have the possession of Isaac during her life, and a note for his hire, ($10,) for 1838, were given in evidence. Mr. and Mrs. McClendon proved that Mary Jones lived with them in ’39, and that she had repeatedly told them that Isaac belonged to Joe, and that he was to have him after her death. In the case of Terrey v. Belcher, Perrin Jones was offered as a witness, and on ing objected to on account of his interest in the estate of Thomas Jones, (deceased,) he offered to release all his own interest, but refused to release that of his wife, saying he was bound by bond not to interfere with her property. Mary Jones died 9th July, ’44. Perrin Jones died 29th July, ’44. Joseph P. Jones administered on his father’s estate, and inventoried all of his mother’s property, except Isaac, as his father’s. He died second Monday in October, ’44 : the defendant then administered on Perrin Jones’s estate, and on the 2d December, 1844, sold Isaac for $400.
    Bailey> 568-
    The case made by these facts turned upon the question, whether a deed of separation had been executed by Perrin Jones, giving to his wife thejus disponendi, in her life time, of the property in her possession. This depended upon remote transactions, and was matter of presumption, and hence the declarations of Hughes Moss were received; but after the fact to which they pointed was otherwise most abundantly proved, his declarations became altogether unimportant, and were not at all regarded in the case.
    The declarations of Mary Jones were received, on the ground that if she were the owner of Isaac, and had the p0wer 0f disposing of him, then they were part of the plain'tiff’s title.
    3 McC.237. p. 144. p. 154-156.
    
      The jury were instructed that after a lapse of 25 years, any thing might be presumed which was necessary to give effect to Mary Jones’s title. If they were satisfied that she had, during that time, exercised the jus disponendi, they might presume the execution of a deed giving that power — or that her husband had made her his agent to convey the slave.
    The jury found for the plaintiff $477.
    The defendant appealed, on the annexed grounds, for non-suit :
    Because it appeared manifest, from the plaintiff’s own shewing, that Mary Jones, from whom the plaintiff’s testator derived title to the negro in question, was, at the time she executed the deed, the wife of Perrin Jones, and had no authority, directly nor by implication, to transfer or dispose of the right or title to said negro; and certainly not beyond her supposed life interest.
    And for new trial, on the additional grounds :
    1st. That his Honor erred in ruling that the declarations of Mary Jones were competent evidence, on the behalf of the plaintiff.
    2nd. That his Honor erred in ruling that the declarations made by Hughes Moss were competent evidence on the behalf of the plaintiff.
    3rd. Because the verdict was contrary to the law and evidence of the case.
    Bauskett, for the motion.
    Carroll, contra.
   O’Neall, J.

delivered the opinion of the Court.

■ The grounds for new trial will be first briefly disposed of, before the main question, which arises under the ground for non-suit, will be considered.

1. The declarations of Hughes Moss, a deceased witness, made ante litem motam, were received to aid the presumption of an old transaction, and such testimony may be easily defended. It is like the declarations of a deceased witness, made ante litem motam, received, as to the corner of a tract 0f ¡and, in the case of Coate v. Speer. Both are beyond the certain proof of living witnesses, and hence may be received, as the best to which resort can be had. But the testimony here became perfectly immaterial, after the adduction in evidence of the office copy of the mortgage, as to which they related. And, as is said in the report, they were regarded and treated as of no weight.

2. The declarations of Mrs. Jones, received in evidence, were to the same fact, which her bill of sale more clearly proved. They were admissible, as the title of the testator, or as confirmatory of it. If Mrs. Jones had the right to dispose of the slave, then her declarations that she had done so to the plaintiff's testator, were admissible in support of his title. If she had no such right, then of course they fell with her want of power or title to dispose of the slave.

The 3d ground needs no other remark than that if the wife could have and exercise the jus disponendi, then the proof was ample to establish the presumption that she had it.

This brings up the question presented by the ground for non-suit, — had Mary Jones the right of disposition of the said slave, and could she legally hold and exercise it ? No one denies that, generally, the wife cannot dispose of her own property, or that of the husband. To this, however, I think are two plainly marked exceptions: 1st. That as his agent, she can sell or convey; 2. That under a deed of separation, she may have the same jus disponendi as if she were sole.

To the first exception there can be no denial, and that would be enough for this case. For the jury were told that if satisfied, from the facts proved, that she was authorized, as her husband’s agent, to dispose of the slave, that then, in that way, the defendant’s title would be good. Certainly, proof that he permitted her, in 1822, to mortgage the slave, afterwards to use and hire him, and finally, when told she had sold him to the testator of the plaintiff, he did not deny her power, these are certainly facts enough to raise a presumption that her act was as his agent. Her possession was-as a feme sole, altogether, for more than 20 years; and to make such a possession lawful and effectual, there is,” as Mr. Best, on presumptions, says, “ hardly a species of act or document, public or private, that will not be presumed in support of it.”

Under the second exception, however, the strength of this case is to be tried. I have no doubt, that after 20 years separation of husband and wife, and a separate enjoyment on her part of personal property, and repeated unchallenged acts of disposition of it on her part, that the Court, to give effect to her disposition of it, would presume that, on the separation, the husband executed a post nuptial settlement, conveying the property to a trustee, to hold to the uses: 1st. That she might separately enjoy it-; and 2d. That she might, as a feme sole, sell or give it, in her life time, or at her death bequeath it as she pleased. This would be presuming a very common deed, to give effect to her possession and title. In this State, we presume a grant from the State after 20 years possession, and intermediate conveyances even after shorter periods, and when we look back to the instances of presumption, given by Best at p. 145, such as Acts of Parliament; grants from the crown; letters patent; writs of ad quod damnum, and inquisitions thereon; by-laws of corporations, fines and recoveries; the enfranchisement of copy-holds ; endowments of vicarages; exemption from tythes; consent of ordinary to composition deeds, &c. there can be nothing strained in saying, tfiat after a lapse of 20 years, such' a deed as I have suggested may be presumed. This presumption is made more easy, and approaches to certainty, when it is known that, in equity, Mary Jones was allowed, in 1824, to file a separate answer, in which she alleged that she and her husband had separated by consent, were then living apart, and that, by articles regularly executed, they had renounced all claims upon the property of each, — -that in the subsequent stages of the case she was treated as a feme sole, and by the decree of the Court of Equity, her share of her father’s estate was ordered to be paid to her, independent of the claim of her husband; that in a case in the Court of law, her husband refused to release her interest in her father’s estate, saying that he was bound, by bond, not to interfere with her property.

But it is objected, if such deed be presumed, the power and its execution would be unlawful. That is a clear mistake. Sugden, in his treatise on powers, thus states the law : By the common law, a married woman cannot dispose of her own estate, without a fine and recovery; but simply as the instrument or attorney of another, she may convey an estate, in the same manner as her principal could, because the con- . veyadce is considered as the deed of the principal, and not of the attorney, and her-interest is not affected.” “It is not material whether the power is given to an unmarried woman, who afterwards marries, or to a woman while she is married, who afterwards takes another husband; in both cases she may execute the power, and the concurrence of her husband is in no case essential.”

These authorities clearly shew that the wife’s disposition, under such a deed, would be considered as if made by the husband, and be thus legal. But Sugden, at 331, is still more explicit:. The estates created by the execution of a power, take effect precisely in the same manner as if created by the deed.”

The motions are dismissed.

Richardson, J. — Wardlaw, J. — Frost, J. — and Withers, J. — concurred.

Motions refused.  