
    
      J. T. Crawley, administrator, v. Wm. Littlefield.
    
    Where plaintiffs’s intestate had made a conditional sale of certain slaves to defendant, and after condition broken, there had been no demand on the part of the intestate, nor assertion of right on the part of defendant, it is plain that the Statute of Limitations could not begin to run in favor of defendant’s possession, in the lifetime of the intestate.
    A purchaser on condition stands as a tenant, and cannot dispute the title under ■which he entered, without some assertion of title on his .part, such as a refusal to deliver possession when demanded, or notice that he holds in his own right, and not under the vendor.
    An observation in the charge of the Circuit Judge to the jury, which, in no point 'of view, could have prejudiced the appellant, can afford no ground for a new trial.
    
      Before O’Neall, J. at Spartanburgh, Spring Term, 1848.
    This was an action of trover, brought to recover the value of two slaves, Phillis and Granville, alleged to be the property of B, J. Crawley, the intestate,' at the time of his death, and converted by the defendant since his death. B. J. Craw-
    
      ley disappeared about 1824, and has not been heard of since. The plaintiff, his only surviving child, administered'on his estate 29th July, 1844, and soon after his administration, and just before action brought, demanded the slaves, Phillis and Granville, from the defendant, in whose possession they were. He refused to give them up.
    It appeared that B. J. Crawley had the slaves in possession, and that he sold them to the defendant, on the condition that if not paid for in twelve months they were to be Crawley’s, and no charge was to be made by the defendant for the board of Crawley, or the keep of his horse, while he (Crawley) was at Littlefield’s. Crawley’s statement (which was in evidence arising out of the defendant’s proof) was that Littlefield had never paid a dollar on the contract. There was a great deal of proof as to the question of payment, and the jury must have believed that nothing was paid. For they were very plainly told, that if any part of the purchase money was paid, then Crawley, by accepting that, had made the conditional sale absolute. There was no proof that Crawley, even in his lifetime, demanded the negroes. They were, when he last visited the defendant’s, hid out, it was said, by one of the witnesses, to keep him from getting them. But it did not appear that he, then, required Littlefield to deliver the slaves to him, or that Littlefield made any hostile assertion of right to them. Indeed, from the testimony of one of the witnesses, (Pearson,) it would seem that the slaves were called Mr. Craw-ley’s to the time when he went away ; after that they began to be called Mr. Littlefield’s.
    There was a great deal of proof addressed to the suspicion, that the defendant, on Crawley’s last visit to his, defendant’s house, had killed him to prevent his assertion of claim to the negroes. The Circuit Judge, however, thought that there was not enough in the case, to create a reasonable belief that he killed Crawley.
    The defendant, on the closing of the plaintiff’s case, moved for a non-suit, on the ground that his claim was barred by the statute of limitations. The motion was overruled.
    The jury were instructed that the right of property was clearly once in B. J. Crawley, (deceased.) (The notion about the intestate only having a life estate, was not even hinted at, by the defendant’s attorneys, on the Circuit.) They were told by his Honor that he did not think the statute of limitations could prevent the plaintiff from recovering. For if it were true, that the negroes were sold on the condition that the slaves were to be Crawley’s, if not paid for in 12 months, and they should believe that nothing was paid, then the defendant, holding under a conditional sale, could not set up an adverse possession until there was a demand or an assertion of right on the part of the defendant. There was no demand on the part of Crawley, and no claim of property on the part of the defendant in the lifetime of Crawley. Hence, in his life, there was no adverse possession, and the statute could not begin to run until grant of administration, and demand made by the administrator, which was immediately followed by suit, and therefore the statute could hot apply.
    The case was very fairly submitted to the jury, on the questions of payment, and all others of fact arising in the case. His Honor said to the jury, if they believed the defendant killed Crawley, to prevent his demand of the negroes, or from re-possessing himself of them, then, in such a state of things, it was decisive of every thing against him: but, at the same time, he told the jury that it was clear he never could be, on the proof before them, convicted of the murder. His own conclusion, on the facts, he kept studiously from the jury, and his leaning, if any at all could be discovered, was thought to be in favor of the defendant. The jury found for the plaintiff $940 — the value of the slaves, and hire from the demand.
    The defendant appealed, and moved the Court of Appeals for a non-suit or new trial, on the following grounds:
    
      For a non-suit — Because the statute of limitations, on plaintiff's own showing, was a complete bar to his right of recovery. ,,
    
      For a new trial — 1st. Because his Honor erred in charging the jury, “ that if they considered the contract of sale of the negroes, as a conditional one, and that nothing had been paid towards the purchase money, then the statute of limitations could not apply, and had nothing to do with the case until a demand had been made by Crawley.”
    2d. Because his Honor erred in charging, that if Littlefield killed Crawley, then there could be no doubt of the plaintiff's right to recover.
    3d. Because the verdict was contrary to law and evidence.
    Young, for the motion.
    
      Bobo, contra.
   O’Neall, J.

delivered the opinion of the Court.

The ground for non-suit, and the first ground for new trial, may be considered together. For the reason given to the jury, by the Judge below, to shew that the statute of limitations could not bar the plaintiff’s recovery, was that which pre-" vented his mind from yielding to the motion for non-suit.

The sale of the slaves to the defendant, has been found to be conditional by the jury. There was no proof whatever of any demand by the intestate, of the negroes, after the condition failed to be complied with, or of any assertion of a claim of property, in the same, by the defendant, in the lifetime of Crawley, and with his knowledge. With these statements, it is too plain to be seriously argued that the statute of limitations could not begin to run in the lifetime of the intestate.

There can be no doubt that it was entirely with the vendor to take advantage of the condition broken or not. If he chose he could suffer the possession of the slaves to remain in the vendee, without any danger of the statute of limitations, until demand, or until there was an assertion of an adverse right. For a purchaser, on condition, stands as a tenant, and cannot dispute the title under which he entered, without some assertion of title on his part, such as a refusal to deliver possession when demanded, or notice that he holds in his own right, and not under the vendor.

It certainly, as a matter of fact, was decisive of every thing, if it were true, that the defendant killed Crawley, to prevent him from demanding or re-possessing himself of the slaves. For such an act would admit all the rights of property. But in the same breath that the jury were so advised, they were told that there was not evidence enough to convict the defendant of the murder. So that in no point of view could the observation have prejudiced “the defendant.

The motion for a non-suit or new trial, is dismissed.

Evans, J. Wardlaw, J. Frost, J. and Withers, J.concurred.

Motion refused.  