
    Garth’s Executors v. Barksdale.
    Decided March 7th, 1816.
    i. Slaves — Five Years’ Possession under a Loan — Effect of. — Five years peaceable and uninterrupted possession of slaves, under a loan not evidenced by deed duly recorded, vests a title in the loanee, which enures in favour of his creditors, and cannot be devested as to them, by his returning' the same to the lender, after the said five years have expired.
    See Gay v. Moseley, 2 Munf. 543-546.
    This was an action of trespass in the superior court of Albemarle county, originally brought by Goodman Barksdale against Thomas Garth sheriff of that county, for unlawfully seizing two slaves belonging to the plaintiff. — Plea “not guilty,” and issue. The cause being continued at October term 1812, it was agreed that it should not abate by the death of either party. In fact, the defendant died before the ensuing term, when his executors came into court, and made themselves parties.
    
    At the trial, the defendants filed exceptions, stating, “that this action was brought against the defendants’ testator for an illegal seizure and sale of slaves, by one of his deputies, under an execution duly issued against a certain Douglas Barksdalethe defendants proved that the said negroes were, at the time of their seizure, in the said Douglas -Barksdale’s possession : — the plaintiff claimed them,, as having been the original owner, and only having lent them to said Douglas Barksdale, who had married his daughter: —the defendants undertook to prove that the slaves had been in said Douglas Barksdale’s peaceable and uninterrupted possession for five years from the time when they were first loaned him, and before the service of the execution :— the court instructed the jury that, if the slaves loaned by the plaintiff to Douglas Barksdale had, before the expiration of the five years, been returned by the consent of the lender and borrower, that would interrupt the possession; and that, even if the borrower, after five years possession of the slaves, had surrendered the same to the lender, the lender’s right to the slaves became revested in him, so as that, in neither case could an execution, in behalf of a creditor against the borrower, which issued subsequent to the last return of the slaves into the borrower’s possession, be levied on said ^slaves, although in the borrower’s possession at the time of levying said execution, unless five years had again elapsed after the possession of said slaves was restored to the borrower: — to which opinion of the court, the defendants excepted.” *’
    Verdict for plaintiff
    for $670 damages:— Judgment de bonis testatoris; from which the defendants appealed to this court.
    Wickham for the appellants.
    — Whether the court’s instruction to the jury was correct, or not, depends upon the statute of frauds. This case is obviously within the letter of the law, and still more clearly within its meaning. A loan must be considered’, in relation to creditors, as vesting the absolute property in the borrower after five years possession, unless it be evidenced by writing; though, as between the parties, the lender may assert his right at any time. The object of the law is to prevent the holding out of false titles. A loan is not a transfer for valuable consideration, which is good against creditors. .
    Eeigh for the appellee.
    Eor aught which appears in the record, the opinion of the court did not obstruct the proof which the defendants undertook to adduce; nor at all conflict with the defence set up by them. The instruction given was upon a mere abstract question not applying to the case;- — ■ for the proof on the. part of the defendants was that Douglas Barksdale had been in uninterrupted possession for five years next before the levying of the execution ; and no motion appears to have been made to the court for any instruction to the jury.
    But if the opinion of the court can be applied to the case stated in the bill of exceptions, that opinion is correct; being almost in the very words used by this court in Beasley v. Owen, 3 H. & M. 449 — 458. This court is not studiously to hunt out errors in the judgment. If a case might exist to justify the instruction, it ought to be presumed that such was the case, unless the contrary appears. The judgment is presumed to be right, if it do not appear to be erroneous. It is not incumbent on me to shew it was right, but on the appellant’s counsel to shew it was wrong.
    nvickham in reply.
    The defendant only undertook to prove a possession <of five yearsnot of five years next before the execution : he contended that possession for five years “before” the execution, (though not the five years next before it,) was sufficient. The case of Shelton, v. Cocke, Crawford & Co. is a clear authority to shew that the instruction must be understood as applying to the case before the •court. The instruction given is clearly erroneous. The court ought to have said, ‘ ‘provided such re-delivery was open and public.” The spirit and intention of the law is to prevent secret trusts to the injury of creditors. If a mere taking back of the property, and re-delivery, (after the five years possession had vested the property in the loanee for the benefit of his creditors,) should be considered sufficient to defeat the claims of creditors, it would amount to a repeal of the statute of frauds. No matter when we became creditors; — no matter how far we were imposed upon by this act of the partythe court’s opinion was a bar to the admission of our evidence. And, whether this instruction was given asked or unasked, it led to an erroneous decision by the jury. The judgment therefore must be reversed.
    
      
       The principal case is cited in Hudsons v. Hudson, 6 Munf. 351, to the point that actual adverse possession of slaves for more than five years will give a title to a defendant as well as a plaintiff, without pleading the statute of limitations.
    
    
      
       See Rev’d. Code, 1st vol. ch. 92, sect. 58, p. 167.
    
   March 7th, 1816, the president pronounced the opinion of this court.

“The court is of opinion that the instruction of the superior court is erroneous in this, that the five years possession of the negroes by Douglas Barksdale, if proved, vested a title in him which enured in favour of his creditors, notwithstanding he might thereafter have returned the same to the plaintiff from whom he had derived them. — The judgment is therefore reversed, the cause remanded, for a new trial to be had therein, on which no such instruction is to be given, but one, if required, correspondent with this decision.  