
    Thomas v. Brooks.
    Where judgment was obtained against an administrator, upon which execution was issued and levied upon slaves belonging to tiro estate, and the slaves were sold and purchased by the plaintiff in the execution, who sold them to another, who sold them to the defendant, the administrator having sued to recover the slaves: Held, That whether the sale upon the judgment was void or voidable, the statute ofi imitations commenced to run from tlie time when tlie slaves were taken from tlie possession of tlie administrator and sold ; that the defendant could claim the time that ran whilst tile slavesuwere in the possession of those under whom lie claimed, and that tlie action was barred 'after two years.
    The acts of an administrator may be set up as an estoppel in pais to bar a recovery by tli9 estate which he represents. «
    Appeal from San Augustine. This suit was brought on the 14th of January, 1850, by tlie appellant, as administrator of Anderson, to recover certain slaves alleged to belong to the estate of bis intestate. The negroes sued for were sold under an execution on the 4th day of July, 1843, sued out of the District Court of San Augustine county in a suit against the appellant as administrator of Anderson, which suit was for tlie foreclosure of a mortgage given by Ander--son to Young, tlie plaintiff in tlie suit, to secure the payment of a debt due from Anderson to tlie said Young. Tlie decree directed tlie sale of tlie negroes to satisfy tlie debt secured by the mortgage. The negroes were bought by Young, the plaintiff in tlie action, through his agent, J.Pinckney Henderson, and taken into tlie possession of the said agent at the time of tiie sale in tlie county where they were sold until about tlie 4tli day of March, 1844, when lie sold and delivered tlie negroes, as agent of Young, to one Polk, who kept tlie said negroes in his possession until about the 26th July, 1850, when be sold them Lo the defendant Brooks. The record shows that the appellant was present at tlie sheriff’s sale, and that they were levied on and sold with his consent, and that lie chose one of tlie appraisers who appraised the value of tlie slaves. There was a demurrer to tlie petition, and tlie statute of limitations was pleaded. A jury was waived; the facts agreed on; and tlie court gave judgment for the defendant.
    
      Jennings 8? Ardrey, for appellant, referred to their briefs in the ease of Thomas v. Greer.
    
      J. P. Henderson, for appellee.
    It is admitted in the statement of facts agreed upon by the parties that tlie slaves sued for were held and claimed by Elijah Young and others claiming under him in tlie comity of San Augustine adversely to plaintiff and all others from the 4th of July, 1843, up to tiie commencement of this suit, on the 14th of January, 1850, a space of six years and six mouths, and that the defendant .had peaceable, adverse possession of the same, claiming them in said county under his purchase from Brooks, from the 24th of June, 1840, until the commencement of this suit, a space of more than three years and six months, during all of which time plaintiff was administrator of said Robert G. Anderson in said county, and capable of maintaining suits for the property belonging to said estate or claimed by it. Tiie first section of the act of limitations, approved 5tli February, 1841, requires all actions for tiie recovery of personal property detained or converted by another to be commenced within two years next after tile Canse of action accrues and not thereafter. (Hart. Dig., art. 2377.) Under that law tlie plaintiff’s right to sue was clearly barred before this suit was commenced.
    If tlie execution upon which tiie negroes in question were sold was void the statute of limitations began to run at tlie time of their seizure under it by the sheriff. (Reed v. Harkie, 3 Johns. R., 523.) The statute of limitations commences to run against administrators from tiie date of their appointment, &c. (2 U. S. Dig., p. 807, paragraphs 316, 317, and 318.)
   Lipscomb, J.

The defendant’s counsel admits that if tlie statute of limit» tions of the 5t.ii February, 1841, applies to tIlls case, it interposes a bar to a recovery. They contend, however, that it does not come within the statute, because the execution under which the property was sold by the sheriff, on the 4th day of July, 1843, was a nullity, and gave not even a color of title to those claiming under such sale; that the District Court had no jurisdiction of the suit in which the judgment and decree were made.

In tiie view we take of the statute of limitations, as applicable to this case, it is not material whether the judgment and decree under which the slaves were sold was void or voidable. If we were to hold that the sale conveyed no title because the judgment was void, still it would not follow that the purchaser could not claim the benefit of the statute. Slaves have always been considered personal property in this State. The first section oE the statute referred to (.art. 2377, Ilarf. Dig.) is express and clear that “all actions for detaining the personal property, and for converting such personal property to one’s own use, shall be commenced and sued within two years next after the cause of action or suit, and not after.” Wheni then, did the cause of action arise? Unquestionably when'the property was taken from the possession of the appellant, and sold. He could have sued for it when Young, by his agent, first obtained the possession. The statute then commenced running, for it cannot be doubted that the present defendant can claim the time that run whilst the slaves were in the possession of those under whom lie claimed.

The fact that the appellant is suing as administrator cannot bn of any advantage to him or prejudice to the defendant. IE an administrator has either been so faithless or negligent that he suffered a good cause oE action to .be barrial, by which the estate"he is representing is injured, the answer is, as was said ir Swenson v. Walker’s Administrators, that he must account to those interested in the estate as best he may. If the statute of limitations was out of the question, his long acquiescence under the sale to which he had consented until the properly had passed through different hands, for a valuable consider ntion, might well be set up against him as an estoppel in pais. We beliet*' there is no error, and the judgment must be affirmed.

Judgment affirmed.

Wheeler, J. In this case I did not sit, having been of counsel.  