
    BRAGG vs. MASSIE’S ADM’R.
    [DETINUE FOR SLAVES.]
    1.. Husband's marital right» in and to wife’s personalty. — Prior to tlie passage of the laws securing to married women, their separate estates, the husband’s marital rights attached to a slave given to his wife, while unmarried, by her father, unless the terms of the gift secured the property to tlie separate use of the daughter; and on a subsequent exchange of the slave for another, during the coverture, hy and with the assent of the husband, his marital rights equally attached to the slave obtained by tlie exchange.
    2. Adverse possession between father and daughter living together. — The possession of a slave hy a daughter, under a gift from her father, cannot bo considered adverse to the father, or to the estate of her deceased husband, of which her father is the-personal representative, When it appears that she is living- with her father, that each of them exercises acts of control over tlie slave, and that the marital rights of. her husband attached.to tlie slave during coverture: the possession of father and daughter being joint in such case, and the title being iii t-lio father, the possession will also he referred to him.
    8- .Private sale by administrator. — A private sale hy an administrator, in his individual capacity,, of a slave belonging- to his intestate’s estate, estops the administrator from afterwards recovering the slave, but does not divost the title of tlie estate; and if the sale is perfected by delivery, and tlie administrator afterwards acquires the possession under a now contract with the purchaser, he is estopped from setting up against the latter the illegality of the original sale; consequently» a recovery against him by tlie purchaser, in an action founded on the subsequent contract, does not bar the title of the estate.
    4.. Admissibility of parol lo change absolute deed into mortgage. — Parol evidence is not admissible at law, to show that a deed, absolute on its face, was intended to operate only as a mortgage.
    5. Admissibility of grantor’s declarations and aets as affeeting gift. — Where two slaves are given by a father to his two unmarried daughters, by separate gifts made at one and the same time, his declarations at the time, showing a delivery of both slaves, are competent evidence as a part of tlie res gestee, in a controversy respecting one of tlie gifts; and the subsequent acts of both grantor and grantee, showing an assertion of title to the slave by the latter, and the recognition of her title by the former, are also admissible evidence.
    Appeal from the Circuit Court of Greene.
    Tried before the Hon. Wm. S. Muld.
    This action was brought by A. R.' Davis, as- the administrator cle bonis non of C. C. A. Massie, deceased, against David Bragg, to: recover several slaves,: together with damages for their detention ; and was commenced on the 31st August, 1858. The defendant pleaded “the general issue, in short by consent, with leave to give any special matter in evidence ;” and issue was joined on that plea. The material facts of the case, showing the respective titles of the parties, briefly stated, are-these: The plaintiff:’s intestate, in December, 1836, married Ann Eliza Bragg, a daughter of William Bragg, and died in August, 1837. Prior to said marriage, William Bragg had given to his daughter a negro girl named'-Amy*; and after the>marriage the girl Amy was exchanged, by agreement between Bragg and his daughter, with the consent and approbation of Massie, for another girl, named Catherine,-who,:-together with her children, since born, is sued for in this action. After the death of her busband,’ Mrs. Massie returned to her father’s house, where she continued to reside -until 1843, when she married one Ray-; and after the lapse of about a year, sbe again went back.to her father’s. William Bragg took out letters of administration on the -estate of Massie, -on the 19fch November, 1838-,; returned-an inventory of the property belonging to the estate, in which he included neither Amy nor Catherine, because, as he testified, he thought that Catherine belonged to Mrs.'Massie; and resigned the administration on the 28th August, 185S, — the plaintiff being appointed administrator de bonis non on the 30th August, 1858. On the 10th June, 1841, while the slave Catherine was in the possession of William Bragg, and while Mrs. Massie was living with him, said Bragg executed a deed, by which he conveyed said slave, other slaves then in his possession, the plantation on which he resided, and other property, to David Bragg and Wm. H. Knott, — the latter having previously married one of his daughters; and delivered said plantation and slaves to the grantees. This deed was absolute on its face ; but the grantor testified, that it was only intended to secure the grantees against their liability as sureties for him, on a debt on which judgment had been recovered against-him and them, and which had been taken to the supreme court by appeal; “and the understanding between him and said grantees was, that on his return from Virginia, whither he was about starting for the benefit of his wife’s health, said .grantees1 were to hold his property for him, and help him to work out and pay Ms debts,* when tire property conveyed was.to be hi&; but it was understood, also, that said grantees, if he never returned,-.were to pay all his debts, and divide the balance of his property among his children; and it was understood, also, that the girl Catherine belonged to Mrs. Massie, and that said grantees -were to return her whenever Mrs. Massie called for her.” Mrs. Massie was'not present when this deed-swas executed,- and had no knowledge of it.; and when she afterwards expressed-some .dissatisfaction with it, “the defendant told her”, as-William Bragg testified, “not to he uneasy, as she should have her property.” The case in which the defendant and Knott were sureties for William Bragg having been taken to the supreme court by appeal, and there decided against William Bragg, an execution on the'judgment was levied on the slaves now in controversy, with other alavés conveyed by the deed. The slaves were sold under the execution on the 7th March, 1842, and were bought in at the sale by one Shelton, who, on the same day, conveyed them by bill of sale to said defendant and Knott. The slaves were sent back to the plantation of William Bragg, where he ahd said Knott both resided ; and they were divide'd, in 1847 or 1848, be-1 tween the defendant and said Knott. William Bragg was not present at the division, but he received from Kuott tha slaves which were allotted to the defendants and retained the possession of them until some time in 1856, when they were recovered from him, in an action of detinue, by the defendant, who had possession of them when this suit was commenced.
    On the trial, as appears from the bill oí exceptions, the plaintiff introduced William Bragg as a witness, who tes- • tified, that his daughter Ann Eliza was seventeen or' eighteen years old when she married Massie; that-he bought' the gill Amy for her, in 1834, from a negro-trader, whose • camp was near his house, and, at the same time, bought another girl for his daughter Elmira, who was then unmar- • ried, but afterwards married William H. Knott; that his • daughters went to the camp, and each picked out for her— self a negro girl, whom he bought for them after they had gone back home. “The defendant here objected to the witness stating anything in relation to -any gift to his daugli- • ter Elmira, or anything that took place between biro and. bis daughter Elmira, in relation to any negro bought for • her, or given to her j, but the court, overruled the objection, and permitted the witness to state all that took place ■ at the time, as well in reference to the alleged .gift to El- ■ mira, asrto the alleged gift to Ann Eliza;,to which ruling; of the court the defendant excepted. The witness thereupon testified, that the two negro. girls were sent to his -■ house, and, when near the house, his two daughters being., present, he pointed out Amy to Ann Eliza, and said to her,.. ‘There’s your negro’, and pointed out the other to Elmira,., and said to her, ‘ There’s your negro ’; to which statement of the witness, so far as it related to the alleged gift to> Elmira, the defendant objected, and reserved an exception to the overruling of his objection.”
    “ Said witness further testified, that both of his said daughters continued to reside at his house, and occupied the same room, until Elmira was married to W. H. Knott ; that each exercised authority over the negro girl given to her as above stated, as her own, and told her to do anything she wanted done ; but he (witness) ruled the houseTtiold, his daughters, slaves, and all. The plaintiff asked said witness, *whose property he ealled Amy’, and ‘if he ¡-set up any claim or title to the girl Amy after the time of said alleged gift ’; to which the witness answered, ‘ that he ¡called her Ann Eliza’s’, and ‘that he did not set up any ■claim or title to her.’ The defendant objected to each of these questions, and to the answers to them, and excepted to the overruling of his objections. The plaintiff also asked said witness, ‘ whether Ann Eliza claimed the girl Amy, in his presence, [prior] to her marriage, and in what way she claimed her’; to which the witness replied, ‘Yes, by doing what she wanted with her, and by saying the girl was her own’. The defendant objected to this question and answer separately, and excepted to the overruling of -his objections by the court. The plaintiff then asked said witness, ‘ Did you, or not, when she claimed said negro in .your presence, ever dispute it’? to which the witness answered, ‘that he never did.’ To this question and an.-swer, also, objections were interposed by the defendant, and exceptions reserved to the overruling of his objections.”
    Bragg farther testified, on cross-examination, that Amy was only five or six years old when he bought her and gave her to his daughter Ann Eliza; “that she was too small to ■do anything, and just knocked about the house and. yard like any of the other little negroes, and'did anything that ■any of the family told her to do ”; that his daughter claimed her, “but he was unable to state any particular time or times when she did so, or any particular thing that she ■said or did in that .respect ”; also, that after the exchange of Amy for Catherine, as above stated, and after Massie’s death, Mrs. Massie had possession of Catherine, at his house, until the slave was recovered from him in the action of detinue by the defendant; that she had possession at the time he conveyed the slave to the defendant and Knott; that Mrs. Massie was not present when the deed was made, and knew nothing about it; that he made the deed “because he thought there would be some trouble, and no consideration was paid for it”; that he always paid taxes on both Amy and Catherine, and that the money paid to Shelton for the slaves, on his purchase of them at the sheriff’s sale, was a part of the proceeds of the crops raised by him ©n the plantation conveyed to the defendant and Knott.
    The court charged the jury, at the request of plaintiff:
    “ 1. That, if they believed, from the evidence, that William Bragg gave the girl Amy to his daughter Ann Eliza; and that Ann Eliza afterwards, in 1837, married said Massie; and that said Bragg, after said marriage, and during the' life-time of said Massie, exchanged the girl Amy for- Catherine ; and that said Massie recognized the trade, and made no objection to it, — then the title to. .Catherine vested in-said Massie; and that if said/Bragg, in 1841, while he was the administrator of said Massie, sold the said girl to the-defendant and Knott, without any/ordes of court, dr authority by will, such sale did not divest the right "and title' of said Massie’s estate.
    
      “2. .That although theymight believe, from the evidence,’ that said .slave was in the- possession of Mrs.*Massie, and-¡ claimed by her as her own 'property, when the sale was ■ made by William Bragg to the defendant and Knott, in 1841; yet, if they further believe that said Bragg was then*' the administrator of Massie; and that he sold said slave without authority of law, and-placed her in-the possession of the defendant and said Knott, and that she remained in their possession, and under their control, until the sale by-the sheriff in 1842, the said sale-did not divest the title of-. Massie’s estate, if he had-reduced-said slave into his -possession during his life-time.
    “ 3. That, although delivery is necessary to perfect a parol gift of- a slave, yet-it is not necessary that the actual* possession should be retained by .the donee; that the subsequent possession -by. the father is not necessarily incompatible with the. donee’s right to the slave, nor is it conclusive evidence that ■ there was no 'delivery, or that the property did not pass to the donee, his daughter; and that where the dpnee is the daughter, and lives with the donor as a .member of his family, and the slave is too young to be a source of profit, or to do active service, these facts are, prima facie, sufficient to explain the donor’s subsequent possession.
    “ 4. That when a gift has been once made, by ,a father to his child, the father cannot, of his own accord,.deprive the child of it: being once a gift, it is always -a gift, and-the father cannot again become the owner of it without, the consent of the child..
    “5. That., by-; the common, law, marriage vests in the.' husband all the wife’s -personal property in possession at' the-time, of the marriage, ok that she may acquire and re-' duce to possession during the covertureand that if per-' señal property is. given or sold to the wife during the coverture, prior, to the 1st March, 1848, without- any words creating a separate. estate, and passes-, into the possession of the husband, then his marital rights attach, and the title vests in him; and that if.it once passes-into-his possession,- and the title vests in him.,as husband,’,and he dies, the title to it devolves upon his administrator,-although his wife may claim it as hers. ’ ’
    “ 6. If. the jury believe, from .the evidence,'that the girl-’ Catherine was, in.law, the property of Massie at the time of his death,.in .1837 ; .and that .William Bragg; in 1843,-, while he was-the administrator, of Massie’s estate, sold and-conveyed said slave to- the defendant and Knott; -and that* afterwards, in 1.847 oi; 1848,-.a division of the property so-conveyed to them was made -between- Knott and the de— fendant; and that the girl Catherine, with others, was them allotted to the defendant';-;and-that he sent her, or permitted her to go, to tha-house-or premises of- William Bragg;-, and that Bragg held her as the < bailee of -the defendant; - then, the subsequent judgment and recovery, by the defendant against William Bragg, in 1856, would constitute no bar to any right of the plaintiff, as administrator de bonis > non, to recover the property sued for in this-action.
    “7. If the jury believe, from the evidence,-that the girl’ Catherine was the property of- Massie at the time of his death, in 1837 ;.,and .that William. .Bragg was appointed?; and qualified as his administrator in 1838, and, in 1841-, while he was such administrator, bargained, sold, and conveyed her by deed, to the defendant and Knott; and that said Bragg continued to be the administrator of said Massie’s estate until August, 1858 ; then,'neither the deed and conveyance by said Bragg in 1841, nor the judgment recovered by the defendant against said Bragg in .1856, nor the sale by the sheriff in 1842, nor anysubsequeiit division of the slaves between the said Bragg and the defendant, or between them and Knott, affect or divest the. plaintiff’s title as administrator de bonis non of said Massie, or constitute a bar to his right to recover in this case.
    “ 8. If the jury believe, from the evidence, that William Bragg was the administrator of said Massie in 1841, and, whilst he was such administi-ator, sold and conveyed the girl Catherine, by the deed which was in evidence, to the defendant and Knott; and that when said Bragg and his daughter, a few days afterwards, went to Virginia, the girl Catherine and the other slaves were taken into the possession and control of Knott, for Bragg and himself; and that they afterwards, in 1842, delivered the girl Catherine to the sheriff, to be sold by him as their property; and that Shelton bought said girl at the sale for them, and they took from him a bill -of sale for her; and that she was taken back into the possession of said Knott and Bragg, or either of them; and that afterwards, -in 1848-, said Knott and Bragg divided the slaves between -themselves; and that the girl Catherine, with others allotted to David Bragg on said division, was placed by him, or permitted to go, into the possession of William Bragg; then, said William Bragg could not defend or defeat any action by said defendant for said negroes, and the plaintiff in this action, as the administrator de bonis non of said Massie, is not barred of his right of action, either by any record of a former recovery offered in evidence, or by the lapse of time, or by the statute ■of Imitations.
    “ 9. If the jury believe, from the evidence, that the de- • fendant and Knott, or either of them, took possession of ' {lie slaves conveyed to them by William Bragg, under said deed, in 1841, then the said sale and conveyance was not ■the sale of a chose in action; or, if they believe that the ■negroes conveyed by said deed were left on the premises by said William Bragg and his daughter, when they went'to ' Virginia in 1841, under'the control’of said Knott and the defendant, or either of them ; and that they, or either of ' them, continued in possession of said slaves until they were sold by the sheriff in March, 1842 ; then, the sale and conveyance by said deed in 1841 was not the sale of a chose in action, nor is the plaintiff, as administrator de bonis non ef said Massie, thereby barred of his right of action in this case.
    “ 10. If the jury believe, from the evidence, that William Bragg, in 1856, when David Bragg sued him in detinue? foir the slaves now in controversy, was holding said slaves as the bailee of David Bragg, or by his permission, then the said William Bragg could not defend or defeat that action, by showing that said sale and conveyance by himself to David Bragg and Knott was illegal and unauthorized ; and the judgment and recovery in that action is no bar to the plaintiff’s right of action in this case ; and that the jury may look to all the facts aud circumstances in the case, to determine whether or not said William Bragg was then holding said negroes -as ’the bailee of David Bragg, or by his permission.
    “11. If the jury'believe,'from the evidence, that said William Bragg, in 1834-, bought the girl Amy and another, and brought or sent’them'to'his house, "and then and there called up his two daughters, and'said to Ann Eliza, ‘That’s your negro,’ pointing to Amy, or calling her by name, and to Elmira, ‘ That’s yours,’ pointing to the other ; and that from and after that time, and until her marriage with Massie, Ann Eliza always claimed Amy as her property, in the presence of William Bragg; and that he never disputed her claim to Amy; and that afterwards, in 1837, before the death of said Massie, William Bragg bought the girl Catherine, and exchanged her for Amy; airl that ■Catherine went into the possession of Massie and wife, and remained in their possession until the death of Massie, and nursed bis infant child after his death, — these are all circumstances to which the jury may look, in order to determine whether or not there was an actual delivery of said slave.”
    The defendant excepted to each of these charges, and then requested the court to give the following: — •
    “1. If the jury believe, from the evidence, that Mrs, Massie, after- the death of her husband, and at the time William Bragg. was ■ appointed administrator of said Massie’s estate, -held the slave Catherine as her own, claiming her as her own property ; and that she, and those holding., for her, continued to hold the slave for six years; and that William Bragg knew that she and those holding for her did so hold and -claim said slave, and never took or had possession of - said property as administrator of said Massie, nor set u-p, • any claim to-her as such administrator then, his title as administrator, and the title of the estate which he represented, to said slave, was barred .after the expiration of six years from the time of his appointment as such administrator, and the plaintiff cannot recover, in this suit.
    
      “2. If the jury.-believe, from-, the evidence, that after William Bragg’s appointment as administrator of Massie’s estate, and while lie was such administrator, the slave Catherine was in the possession of Mrs. Massie, who held and claimed said slave at the time William Bragg executed the conveyance to David Bragg and Knott j-. and that six years had elapsed, from the time of such holding by Mrs. Massie, to tbe commencement of this, suit, — the plaintiff cannotrecover, notwithstanding the sale by William Bragg to tbe defendant and Knott and their subsequent possession of tbe slave.
    “'3* .If the jury "believe, • from the evidence, that the slave. Catherine, at the time of tbe sale by William Bragg to the defendant and Knott, was in,the possession of Mrs. Massie, and was held and claimed by her as her own property ; and that this was known to’the said William Bragg, ■who was then the administrator of said Massie and that-.; the defendant and Knott did not know that said'slave was' the property of said estate, — such sale and conveyance passed the title to said slave to the defendant'and.Knott, and the plaintiff cannot recover in this action, although the title to said slave was iaMassie’s estate at the time of said sale.
    “4. If the jury believe, from-the evidence, that said William Bragg was the administrator of Massie’s estate at the time he sold the slave to the defendant and'Knott; and that said girl was then in the possession of- Mrs..Massie, who was claiming her bona fide as her ownand that this-was known to William Bragg, — then said Bragg, as such-' administratbr, only had a- right of action in said slave, which he could sell; and-: the sale and conveyance of the slave by him- to the defendant and Knott passed the title tofhera, as between him and them ; and tbe plaintiff cannot recover in this suit, unless the jury believe, from the evidence, that the defendant and Knott colluded with William* Bragg to commit a fraud on the estate of Massie, or participated with him in the commission of a devastavit of said-> estate.
    “ 5. If the jury believe,-from* tbe evidence, that' said' William Bragg was the administrator of Massie’s estate at’ the time he sold and conveyed the girl Catherine to the defendant and Knott; and that said girl was then in-the possession of Mrs. Massie, who was claiming her bona fide as her own ;■ and that this was known to said-William Bragg ; then, said Bragg, as such administrator, had a right of action, which he could sellthat the sale and conveyance by him to the defendant and Knott passed the title to the slave Catherine to them, as between him and them and the plaintiff in this action y. and that the plaintiff cannot recover in this suit, if the defendant and Knott were-ignorant of the fact that the title to the slave was in Massie’s estate.
    “ 6. If the jury believe, from the evidence, that Mrs. Massie had the adverse possession-of the slave Catherine at the time of the sale by William Bragg to the defendant and Knott, and that-this was known-to said- William-Bragg, such sale and conveyance, although void as to Mrs. Massie, was good as between William Bragg and the defendant; and that the plaintiff -cannot recover in this action, unless such sale was a contrivance between the defendant and William Bragg, to enable the latter to commit a devastavit on the estate of Massie, and a collusion between them to .commit a fraud on said estate.
    “7. If the jury believe, from the evidence, that the girl 'Catherine, and the others sued for in this action, are the •same slaves that were sued for .and recovered by the defendant, in the action of detinue brought by him against 'William Bragg; and that the said William Bragg, at the ■commencement of that action and the rendition of said judgment, was the administrator of said Massie’s estate'; and that the plaintiff in this action has no other or different . title to said slaves, than such as was at that time in the estate of said Massie, or in his representative, he cannot ■recover in this action..
    “ 8. If the iury believe, from -the evidence, that the conveyance by William Bragg to David Bragg and Knott was intended by the parties to be or operate as a mortgage, to secure said David Bragg arid Knott, or as a conditional sale, to be void, and the slaves to be restored to William Bragg, upon his paying or refunding to David Bragg and Knott the money which they paid as sureties for him; and 'that William Bragg has paid or refunded said money ; and that David Bragg continued in the possession of said Catherine, claiming, her as his own property, for more than six ■years from the time of such payment, to the commencement of this suit; and that this was known to Wiliiam Bragg, who was, at the time of such payment, the administrator of Massie’s estate, — the plaintiff cannot recover.
    “ 9. If the jury believe, from the evidence, that the conveyance by William Bragg to David Bragg and Knott (?) as •the sureties of William Bragg, or as a conditional sale, to be void, and the negroes to be restored to William Bragg, upon his paying or refunding to David Bragg and Knott fthe money which they should pay as .sureties for him ; and. that all the nioney paid or advanced by them was paid or refunded to them before the year ISIS ;,and that the negroes allotted to David Bragg, on-the division between him and Knott of the slaves so conveyed to them, went into the possession of William Bragg in-\ 1848, and were held by him, either as his own property, or. as the property of Mrs. Massie, from. that time until the commencement of said detinue suit against him .by David Bragg; and that the slaves sued for in this action are part of the same slaves sued for in. that action; and that the said William Bragg, at-.the tinle of the commencement of that action-and the rendition of judgment therein, was the administrator of said Massie’s estate? and that.the plaintiff in this actiondias no- other or different title to the slaves sued for, than such as was at that time in the estate of Massie, or in his repre- ■ sentative, — the plaintiff cannot recover,”
    The court refused each one of these charges, and the defendant excepted to tlioir refusal ? and he now assigns as error the several charges given, the refusal of the several charges asked, and the rulings of the court on the evidence to which, as-above stated, he reserved exceptions. •
    S. F. Hale, and Thos.- H. Herndon, for appellant.
    Wm. P. Webb, with Brook-s & G-arrott, contra.
    
   STONE, J.

In the questions which are pressed upon our consideration, no contest is. raised as to the validity of the gift, by William Bragg to his daughter, Mrs. Massie, of the slave Amy; nor of rhe subsequent exchange of the .slave Catherine for Amy. The jury, by their verdict, impliedly affirmed that such gift was made and perfected; -• and the questions bearing on the merits of this case, which we are called upon to decide, all rest on. the postulate, that the gift was- completely consummated. On any other hypothesis, the plaintiff’s intestate never bad title, and the present suit would have failed on that ground ; while, on the other hand, the defendant’s title would be unques- • tioned, both by his* purchase from. William Bragg, and by - his recovery of-the.identical property in controversy in this suit, in an action of .detinue brought by him against William Bragg- Henee, in considering the questions raised by the charges given and refused, we will regard it as conceded that, at -the time of -the intermarriage of Ann Eliza with Mr. Massie, she-,was the owner of the slave Amy, and ■that subsequently, during the time ef her coverture, she, .with .the approbation of her husband, exchanged Amy for ¿the girl Catherine.

The uncontroverted, leading facts -of this case, -then, .are -the following: Ann Eliza Bragg was the' owner of the ,-.slave Amy, and lived with her father, William Bragg, -where the slave also lived- She .intermarried with Mr. .Massie, plaintiff’s intestate, with whom she lived, also at rthe house of her father, until the death of her husband, -.which took place only a few months after the marriage. .During the life-time of Mr. Massie, Mrs. Massie, in his presence, and with his approbation, exchanged with her ■father the-slave Amy for the slave Catherine. Mr. Massie .died in the summer or -fall of 1837, intestate. William Bragg was appointed administrator of-,the estate of Mr. Massie, in .November, .1838, and returned an inventory of his effects, -omitting - all mention of the slave Catherine. William Bragg continued administrator of ¡the estate of Mr. Massie, until August, 1858, when ho resigned, and Mr. Davis, the present plaintiff, was appointed administrator ■ de bonis non. Mrs. Massie continued to live-with her father, William Bragg, except for about one -year, which was after ;her second marriage in 1844. ,-In-1841, between two and .three years after he was appointed administrator of Mr. .Massie, William Bragg, by private contract, and in his own right, conveyed his property, including the slave Catherine, by deed absolute on its faee, to David Bragg and William iH. Knott, who .thereupon took possession and control of the property, .and worked it until about the year 1848; William .Bragg and his daughter, Mrs. Massie, returning to tthe place-some-few months after the sale, and living upon lit -.with '.Mr. Knott, who was son-in-law to William Bragg.

In 1842, Catherine was sold at sheriff’s sale, as the property of David Bragg and Knott, to satisfy an execution which was the proper debt -of William Bragg; was bought in for the benefit of David Bragg and Knott,, and returned to the plantation from which she had been taken, namely, the plantation conveyed by William Braggvto David Bragg and Knott, About.the year 1848, David Bragg aiuLKnott made a division of ;.the slaves which had been conveyed, to them by William Bragg, and the slave Catherine was allotted to David Bragg. Immediately after this division, David Bragg sent the ¿laves which had been allotted to him, to the place occupied by -William Bragg, and they continued with him until 1656, when David Bragg recovered them from him in an action of .detinue. There was some proof tending to show that the -deed from William Bragg to David Bragg, though- absolute.-.on 'its face, was intended and understood as only a mortgage security. There was proof, also, tending to show that William Bragg conveyed the slave Catherine as above.-stated,.in ignorance of any claim which the estate of 'Mr. Massie had to himtj .believing at the-time that she was the property * of Mrs. Massie. There -.was some proof, -also, tending to show that Mrs. Massie, when informed .that Catherine had been deeded away, was dissatisfied ; and that David Bragg informed her that Catherine -should go back to her.

We may state, further, that we do not understand the counsel as controverting the proposition,-.that when Ann Eliza intermarried with Mr. Massie, the -«lave Amy became his property,,j and that when the exchange of slaves was made, the slave Catherine also became Ms property. In fact, these seemáo be self-evident propositions, there being no evidence in -this record that Mr. Massie renounced his marital rights, — Machen v. Machen, 15 Ala. 373; Thrasher v. Ingram, 32 Ala. 645 ; Machen v. Machen, 28 Ala. 374; Bell's Adm’r v. Bell, 37 Ala. 536.

Waiving then, for (the present, all question of >the consummation of the gift, we will address ourselves to.certain points which have been pressed -upon our attention as grounds of reversal in this case. The appellant makes-the following points:

1. That Mrs. Massie held the slave Catherine adversely to her father, the representative of her husband’s estate y. that tbe interest of the estate in the slave Catherine was, therefore, a mere chose in .action, which the administrator Iipd a right to sell at private sale;. and that such private sale vested the title in David Bragg and William Knott, the purchasers.

2. That Mrs. Massie held the slave adversely to her. father; that she, and those holding under her, have had the uninterrupted adverse possession for more than six years • after William. Bragg was appointed administrator; and-that, on this account, the claim of the estate is barred.

3. That,- conceding the private sale by William Bragg to David Bragg and Mr.- Knott to have been illegal, (that being the only theory on which this suit .is maintainable,) tbe sale, under our law, was simply void; .that being void, when tbe action of-detinue was-brought by David Bragg against William Bragg, the latter was not estopped by his sale from vesting,bis defense on.,tbe invalidity of the con- . tract; that William Bragg could and should have defended . his-possession on the title of his intestate, and that the re- . covery in that action is conclusive against the title of Mr., Massie’s estate.

4. That the deed from William Bragg to David Bragg and Mr. Knott was only a mortgage to secure the payment of a debt; that the debt had., been extinguished; and. therefore, William Bragg, by suffering the former recovery, estopped the estate from- recovering tbe property.

In this case, there is no evidence that Mrs. Massie held adversely to her father, William. Bragg. The father and daughter lived together, and each exercised some control over the slave.. Looking alone to the question of control and dominion, .the possession would be pronounced a joint possession. Neither was holding adversely to the-other, in that sense which could ripen into a title by mere-force, of tbe possession.. As conclusive., evidence of this face, we find' that the father, while the joint possession continued, sold the slave, and delivered the possession to another. This shows that his claim was not a chose in action, and relieves us from the consideration of the question, whether, if Mrs..Massie had been holding the slave adversely, the administrator could have made a valid private sale to a. third person. — See Woolfork v. Sullivan, 23 Ala. 548; Bogan v. Camp, 30 Ala. 276. The case is clearly within the principle which holds,- that where two persons are in the joint possession of property, the title being in one, the law will refer the possession to him who has the title. — Governor v. Campbell, 17 Ala. 366 ; McCoy v. Odom, 20 Ala. 502 ; Michan v. Wyatt, 21 Ala. 813.

The sale by William Bragg was a private sale by an administrator, of a slave, the property of his intestate’s estate.;, and under the principle settled in Sístole v. Street, (5 Porter, 64,) the title to the property did not pass out of the estate;. hut William Bragg estopped himself from recovering the property from his vendee. — Fambro v. Gantt, 12 Ala. 304; Lay v. Lawson, 23 Ala. 377 ; Weir v. Davis, 4 Ala. 444.

What we have said above disposes of the first and second points made in argument by appellants.. Mrs. Massie never had the adverse possession.

A full answer to the third point made in argument for the appellant, is furnished in the fact, that the sale by William Bragg to David Bragg and William Knott, was not executory, but executed. It. was perfected by delivery; and Messrs. David Bragg and Knott took and-retained possession under their purchase. Having subsequently acquired the possession from David. Bragg,: William Bragg was as much .estopped from relying on the invalidity of the sale made b.y himself, as if he himself had been plaintiff, suing for the property. The case is not within the principle settled in Fambro v. Gantt, supra, or in Gunter v. Leckey, 30 Ala. 591. The recovery in the action of detinue by David Bragg against William Bragg, is no bar to the present suit; for the title here relied on could not have been litigated in that suit.

Tbe fourth point we must also decide against the appellant. In a suit at law, it is not permissible to vary, by parol proof, the terms of a deed absolute on its face, so as to make it operative only as a mortgage security. — Jones v. Trawick, 31 Ala. 256 ; Parish v. Gates, 29 Ala. 261, and authorities cited.

Tested by the principles above declared, we hold, that the circuit court committed no error available to appellant, either in the charges given, or in the charges refused. Those given correspond substantially with the views we have expressed. Of those refused, the ,1st, 4th and 6th, are abstract. The rest do not assert correct legal propositions, and were properly refused.

What was said by the witness William Bragg, in reference to the gift of a slave to his daughter Elmira, related to an ..act contemporaneous with .the alleged gift to Ann Eliza,'Was part of the ras. gesteo., , and was harmless in its character,; and we perceive no error in permitting the witness to speak of it. He was .testifying of what he had said at the particular time, and this was given by him as a part of the conversation. This, together with certain answers of the witness as to the possession and recognized ownership of the negro girl, before the marriage of Mrs. Massie, all tended to shed light on the question of gift vcl non, which was a material and controverted question on the trial in the circuit- court.

We are not able to perceive any relevancy to,-the issue in this cause, of the fact sought to be proved, that the defendant (David Bragg) held a note against William .Massie, which had been presented to William Bragg, the .administrator, and not paid. Nor do we perceive any error in the court’s ruling, which allowed the witness to state the reasons why he paid taxes on the slave Amy, after the gift, and while Ann Eliza was a minor living in his family.

We find no error in the various rulings of the circuit som-t, and.its judgment is consequently affirmed.  