
    Thomas v. Greer.
    The question whether the possession of personal property was adverse or not does not'depeni on whether the titlo by which it wa« acquired was void or merely voidable. (Note G7.) Where judgment was obtained against an administrator, upon which execution was issued and levied upon a slave belonging to the estate, and the slave was sold and purchased bj the plaintiff in the execution, who delivered him. by way of pledge, to the administratoi as security for a debt due the administrator in his personal capacity; several years after-wards the purchaser lit the sheriff’s sale sold the siavo to the defendant, to whom the administrator delivered him on the order of the vendor; afterwards, the administrator having sued for the recovery of the slave: Held. That whether the sale under the execution uas void or merely voidable did not affect the question whether the possession under it was adverse; thattho possession of the administrator under the contract of pledge was the possession of the pledgor and was adverso to the estate; and that the action was barred after two years from the time whe.n the slave was seized and sold uniter the execution. • , '
    The acts of an administrator may be set up by way of ostoppel to bar a recovery by the estate which he represents.
    Appeal from San Augustine. This suit was brought ou the 14th of January, 1SÜ0, by (lie appellant, as administrator oE Anderson, to recover a slave alleged to be the properly of the estate of his intestate.. The material facts presented by the record were that in 1S42 the appellant was appointed by the Probate Court of San Augustine county administrator de bonis non of B. Anderson, and as such had possession of the slave sued for; that there was a suit in the District Court of Sail Augustine county against him as administrator, by Young, for the foreclosure of a mortgage given by the intestate on the slave, to secure to the said Yovmg a debt due to Young from the intestate; that in that suit there was a judgment against the appellant as administrator, and a decree that the slave should be sold for the satisfaction of Young’s lien ; that an execution was sued on the said judgment and decree, commanding tlie sheriff to seize and sell in pursuance of the said judgment and decree; that the slave was sold by the sheriff' on the 4th day of July, A. D. 1843; and to this sale the appellant consented, and chose one of the persons to appraise the slave; that at the sale Young, through his agent, became the purchaser, and tlie slave was delivered to him; that Young at that time was indebted to the appellant, not in the character of an administrator but in his individual capacity, for which debt appellant had sued Young, and the suit was then pending in the District Court of San Augustine comity; that in a day or two after the sale Young, by his agent, placed the slave in the possession of the appellant, on an agreement with him as collateral security for the debt claimed by the appellant from Young for which tlie suit waspending; that under that pledge tlie appellant continued to hold the slave until, so'me time in March, 1840, Henderson, as agent for Young, sold the slave to Greer, the defendant, and gave him an order to the appellant to deliver the slave; that the appellant delivered the slave to tlie defendant, who has continued in possession ever since.
    The special facts were set up in the answer as a defense to the action, and also the statute of limitations. There was a judgment for the defendant, from which the plaintiff appealed.
    
      Jennings 8f Ardrey, for appellant.
    I. If the statute of limitations operates tobar the suit, then it is admitted by appellants that the judgment must be affirmed.
    The first section of the statute of limitations provides that “ all actions for detaining the personal property and converting such personal property to one’s own use shall be commenced and sued within two years next after the cause of such action or suit, and not after.” '
    It will appear from the statement of facts iu this case that the appellee derives his title by virtue of a sale made upon an execution issued by the District Court of San Augustine county upon a judgment rendered against the appellant as administrator after the act regulating proceedings in the Probate Courts, passed 5th February, 1840, went iuto operation. This sale tools: place in July, 1843, and tlie sheriff delivered the possession of the property to Henderson, the agent of the purchaser. Tlie possession was kept by him only a short time (not two years) when, under a contract of mortgage by the purchaser, the appellant regained possession of the negro and detained hint in his own possession until March, 1S49, when the purchaser, by his agent Henderson, sold tlie negro to the defendant and delivered the possession to him. Tlie whole time which the appellee Greer, and Henderson as the agent of Young, the purchaser, had possession of the negro did not amount to two years’ adverse possession, unless the possession of the appellant-while he kept tlie negro was the possession of tlie purchaser and that of his vendee the defendant.
    This, then, leads us to the inquiry, what must be the character of the defendant’s situation with respect to this property in order to enable himself to plead the statute of limitations, and therobj' defeat the .remedy.
    We contend that the defendant must have detained and converted it to his own use to bo available, to the defendant-. Tlie action of detinue and trover and conversion had, in tlie common-law States, a technical meaning, and their limits and the instances to which they apply are well known and defined. But; we have no forms of action in onr system of jurisprudence; and can it be said that a resort to common-law authorities will afford the light necessary to furnish a rule of construction and applicalion to our statute? Under our system of jurisprudence a party may bring suit for the recovery of personal property whenever it is detained from his possession. Under the common law the detainer of the property liad to be adverse to the title of the other party before the statute commenced running. If the possession of the party was acquired by contract or permission from the owner, and in conformity with and under the owner’s title, then the title of the person in possession was not adverse, and the statute could not be made to operate as a title in favor of the defendant. Under the common law the claim had to be adverse, accompanied with an adverse possession for the length of time prescribed by law.
    IVe contend that the facts do not show an adverse possession in the defendant the length of time required to operate a bar, for these reasons : 1st, Because the administrator having possession of the property under the grant of administration, he is estopped by the law from denying title in the estate. 2d, The sale under which the title"was acquired created no privity between the plaint-tiff and defendant, and lie is not estopped from showing that the purchaser, Young, had no title. 3d, That the sale was absolutely void, because the execution under which it was made was void and did not transmit title. 4dh, That when Thomas regained possession he was in by his first title. 5th, The alienation being void, unless authorized by the order of the Probate Court, Thomas’s contract to hold the property on the mortgage of Young was in contravention of law, and was a species of alienation which was in fraud of creditors and distrib-utees.
    Seven years’ possession of land without color of title is uo bar to a right of entry. (Powell v. Harman, 2 Pet. R., 241.)
    An administrator in possession of lands of which his intestate died seized and possessed does not hold adversely to the right of his intestate, and cannot acquire in his own right by the statute of limitations. (Worth v. Bar-mini, 12 Venn. R.'j 205.) The execution upon which the sale of the negro took place Was prohibited. (Hart. Dig., art. 1014; Graham v. Vining, 2 Tex. R., 434; Bason’s Adm’r v. Ilughhart, 2 Tex. R., 476.)
    II. If the statute of limitations does not bar the action, then we contend thaf the execution was void and did not operate to pass the'title to the property, for the alienation is prohibited by law. (Hart. Dig., art. 1016.)
    
      J. P. Henderson, for appellee.
    I beg leave to submit this case upon th« briefs filed in the case of Thomas v. Brooks.
   Lipscomb, J.

The counsel for the appellant concede that if the statute ol limitations of the 5th February, A. D. 1841, embraces a case like this, it had interposed a bar to tiie action.' They contend, however, that it does not apply, because that the decree‘and the execution under which the slave was sold was a nullity; that at the time of the suit and the rendition of the judgment and decree the District Courts liad no jurisdiction of the matter; that it appertained exclusively to the Probate Court; that as the sale was void under which the defendant claimed title, the possession was not adverse ; and that the sale being a nullity, the slave when again taken possession of by the appellant was in his possession as administrator, and that lie could not, in law, be permitted to hold him in any other capacity. From the views we have taken of the statute of limitations it is not material to give any opinion on the character of the judgmentand decree tinder which the slave was sold. Admitting it to be, as contended for by tbe appellants, a nullity, we should nevertheless hold that the possession under which the slave was held was an adverse possession, and would bring tiie defendant’s claim within the protection of the statute. There is no exception in it as to the circumstances under which the possession was acquired. Tlie only essential ingredient is, that it is adverse to the title sued on. And i£ it is adverse, it would be defeating the intent of the statute to permit any inquiry into the legality of its origin. If that possession has been adverse for two years preceding tlie commencement of the suit it is a bar.

Note 67.—McDonald v. McGuire, 8 T., 361; Huntsman v. Jarvis, 17 T., 161. As to effect of fraudulent concealment see Munson v. Hallowell, 26 T., 475.

We cannot admit the correctness of the position assumed by the appellant’s counsel, that when the appellant again recovered possession of the slave it was in his character of administrator and not in his individual capacity. We know no principle of law that would force such change of tlie character of tlie possession in violation of the express agreement and intention of the parties. As the appellant received tlie possession of the slave from Young or ills agent, so' will he be bound to bold him. That lie received the slave as a pledge for his own individual right, there can be no doubt from the agreed facts of the case, and that he so held possession is manifest from his voluntarily delivering him to the defendant on the order of the agent of Young. The possession, then, of the appellant after the sale was not adverse to Young’s title, but directly tinder and by virtue of it. From tlie time Young obtained tlie possession under the sale, his possession was adverse to the claims of all others. The possession afterwards by the appellant was not an interruption of that possession but was a continuation thereof, because he held possession under his agreement with Young’s agent; and the time fixed by the statute as a bar to the suit had more than three times expired before the institution of the suit. .

There is another ground disclosed by the record that we believe equally valid with the one just discussed and disposed of in sustaining tlie judgment oE the court below in this case:. that is, that the facts agreed on by the parties would estop the plaintiff in the assertion of the claim sued on. The plaintiff was present at the sheriff's sale and consented to the same. He afterwards received tlie slave from tlie purchaser, in pledge as security for a debt the purchaser owed to him, and for seven years never made known that the purchaser’s title was questionable or would be ever contested; and he finally delivered up the slave to the defendant on the order of the purchaser, on Ills having sold the slave to the defendant. How, to permit him, after giving such credit to the title acquired by the sheriff’s sale, to sue an innocent purchaser for á, valuable consideration, and one to whom he himself had delivered the slave, would be alike repugnant to the principles of law and sound morality. It is no answer to say Chat tlie courts must protect the rights of those interested in tlie estates of deceased persons. This protection has been extended by requiring bond and security from those to whom the administration has been committed. To extend it to the prejudice of innocent persons, as we have been called upon to do in this case, would not be for the protection of the rights of tlie creditors and heirs, but it would be protecting an- administrator from the consequences of his own negligence. The doctrine of an estopped in pais was extensively discussed in this'court in a case decided at Austin. On the principles decided in that case we believe that the plaintiff, if there was no law of limitation, would he estopped by the facts in this case.

Judgment affirmed.

YVheeleb, J. Having been of counsel I did not sit.  