
    Spotswood v. Dandridge and Others.
    Tuesday, October 3d, 1809.
    1. Adverse Possession — Fiduciaries. — To prevent length of time from barring a claim, on the ground that the possession of the defendant was fiduciary, such possession must have been fiduciary as to the plaintiff, or those under whom he claims: its being fiduciary as to any other person, is not sufficient.
    2. Statute oí Limitations — Interruption of — An executor having delivered certain slaves to legatees, as their property under the will, a subsequent action of detinue against him, for other slaves which the testator held in the same right, is not sufficient, though prosecuted to a judgment, to prevent the act of limitations from running, both at law and in equity, in favour of the legatees.
    This was a suit brought by Alexander Spotswood, the appellant, against the ap-pellees, in the late High Court of Chancery. The hill (which was filed in October, 1791) charges, that Major General Alexander Spots-wood, being seised and possessed of a very considerable estate, both *real and personal, made and published his testament and last will, whereby, among other things, he devised to his son and heir, John Spotswood, all his lands and working slaves in tail male, with several remainders over, and also all the tradesmen and servants which should be employed, or, in any way, used in and upon his mine tract of land at the time of his death ; and appointed his wife Butler, Elliott Benger and Robert Rose, his executrix and executors ; that, after the testator’s death, the said John Spotswood gave to his sister Dorothea, a negro woman called Molly, who, proving pregnant some time after, was received by him and replaced by another, called Mary Ann, who was one of the entailed slaves ; that, after the death of John Spotswood, Nathaniel West Dan-dridge, who had intermarried with the said Dorothea, demanded of Mary Campbell, the widow of the said John Spotswood, Molly, with her increase, (four in number,) which she declined delivering until she should see Bernard Moore, the executor of John Spots-wood, and guardian of the plaintiff; upon which N. W. Dandridge procured from Bernard Moore an order for the said slaves, who were accordingly delivered by Mrs. Campbell ; that Mary Ann and her children, at the request of Dandridge, were permitted by Bernard Moore to remain in his possession, she being the wife of a negro man belonging to him ; the said Dandridge"agreeing to pay hire for her; that she and her children continued in the possession of Dandridge, under that agreement, till his death which happened in the year , during which time she had a number of children ; that N. W. Dandridge left a will, in which he appointed his son, William, and his second wife, Jane, executor and executrix, of whom the former only proved the will, and took possession of Mary Ann and her children ; and, although. acquainted with the plaintiff’s title as appears by aletter from him annexed to the bill as part thereof, divided the said Mary Ann and her children between the representatives of his father, NT.' W. Dan-dridge, taking bonds to indemnify him *against the plaintiff’s claim; that the plaintiff instituted a suit in the District Court of Richmond to recover the said Mary Ann, and such of her descendants as had been retained by the defendants, executors of Nathaniel W. Dandridge, and obtained a judgment for Mary Ann and her two daughters, Betty and Hannah, as also Jack and Polly, children of Betty, and Polly and Johnny, children of Hannah ; that, in consequence of that verdict, Woodson Payne, who intermarried with Mary, one of the daughters of N. W. Dandridge, delivered to him Rachel, another daughter of Mary Ann, and her two children, Milly and Henry ; but he has received no satisfaction for the hires, which he claims from the agreement of N. W. Dandridge, who was to pay hire; that several of the descendants of Mary Ann, some of whom are named in the bill, others not known, are in the possession of Patrick Henry, who intermarried with Dorothea, John Moore, who intermarried with Anna, and Philip Payne, who intermarried with Elizabeth, daughters of the said N. W. Dandridge, and were delivered to them by his executors ; that he commenced a suit against N. W. Dandridge, in his life-time, for the negroes, which abated by his death ; and has since demanded them of the present defendants without success ; and concludes with praying a discovery, and decree for the slaves and their profits, and for general relief.
    The answer of Philip Payne and Elizabeth, his wife, admits, that Mary Ann is the reputed mother of two slaves, given as a part of the said Elizabeth’s portion of her father’s estate, the names of whom are set forth; that, when they received them, they were unable to labour, so that the trouble of raising them was fully worth their hires ; that the respondents heard of the plaintiff’s setting up a claim to the slaves, but deny that they gave any bond to the executor to indemnify him against such claim ; alleging, that the bond they gave was, in the usual form, for refunding, in case of debts ; that, as to Woodson Payne’s giving up the slaves in his possession, they have often heard *him say that the plaintiff agreed to return them, in case he should fail in this suit, and have understood he is under a similar engagement with Mrs. Dandridge ; that they have understood Mrs. Dorothea. Dandridge was entitled to a proportional part of Major General Alexander Spotswood’s house servants, under his will; that none were allotted to her except Molly and Mary Ann ; and, from the great length of time which has elapsed since his death, they are now unable to prove any thing respecting it. They refer to his will, and rely upon the act of limitations in the same manner as if formally pleaded, mentioning among other things, that N. W. Dandridge died about the year 1785.
    The answer of Patrick Henry and wife, is nearly the same as that of Philip Payne and wife. They have heard N. W. Dandridge and his wife say, that the negro Molly, in the bill mentioned, was the property of Mrs. Dan-dridge, under the will of her father General Spotswood, who gave her a fifth part of his house servants ; that on her marriage with Mr. Dandridge, Mrs. Campbell, then the wife of John Spotswood, and mother of the complainant, was unwilling to give up the said Molly, and prevailed on them to take the said Mary Ann in lieu of her ; that, after the division of the house servants, it appeared that several valuable slaves were due to them, and, as they never could get either of them, they (after the death of the said John Spotswood) took back the said Molly, not in full satisfaction for their share of house servants, there being one or more then due, counting both Mary Ann and Molly. Mr. Henry farther states, that, being applied to-as a lawyer for his advice (to the best of his-recollection) in or before the year 1773, he advised that N.- W. Dandridge should claim and hold Mary Ann and her children,' as his property, until the negroes due to him as-his wife’s share of the house servants were delivered up, agreeably to the will of General Spotswood; that he cannot ascertain the time when the claim set up to Mary Ann as his absolute property commenced, but well remembers he had refused *to-give her up to the complainant before he asked his advice.
    The answer of John Moore and wife states, that they have heard, and believe it to be true, that N. W. Dandridge, deceased, and those who claim under him, have been in quiet possession of the slaves for more than twenty years since the complainant was of full age, and refers to, and relies upon, the answer of Patrick Henry and wife, and the act of limitations.
    No answer was filed by William Dan-dridge, the executor. The deposition of Anna Catherine Moore, one of the daughters of General Spotswood, fully established the fact, that'only two negro girls (Molly and Eucy) were allotted to her sister Dorothea, as her proportion of his slaves ; and she believed that Eucy never came into the possession of her said sister. Another witness, Benjamin Pendleton, deposed to some circumstances, (rather vague and inconclusive,) tending to shew that, between the years 1764 and 1769, N. W. Dandridge held a part, or all, of the negroes in dispute, by a hiring from Bernard Moore, the executor of John Spotswood, deceased. The letter from W. Dandridge (one of the executors of N. W, Dandridge) to the plaintiff, mentioned in the-bill, was dated December 24, 1791, after this, suit was brought. In that letter he said that he “always thought the plaintiff’s right to-Mary Ann and her children was undeniable.”'
    The Chancellor dismissed the bill, with costs, whereupon the plaintiff appealed to-this Court.
    Williams, for the appellant.
    Munford and Warden, for the appellees.
    
      
      See monographic note on “Adversary Possession” appended to Nowlin v. Reynolds, 25 Gratt. 137, and monographic note on "Limitation of Actions" appended to Herrington v. Harkins, 1 Rob. 591.
      The principal case is cited with approval in Morris v. Lyon, 84 Va. 334, 4 S. E. Rep. 734.
    
   On the part of the appellant, it was contended, that the possession of the slaves in controversy, by N. W. Dandridge, had always been fiduciary ; that the acknowledgment by William Dandridge, his executor, of the justice *of the plaintiff’s claim, and the suit and recovery at law against him, prevented the act of limitations from being a bar.

On behalf of the appellees, it was urged, that the testimony to prove that N. W. Dan-dridge’s possession ever was fiduciary, was very defective ; that, if at any time it was fiduciary as to John Spotswood or Bernard Moore, his executor, it never was so as to the plaintiff, who claimed (as issue in tail) under his grandfather’s will, not under John Spotswood, his father ; that since it appeared that the negro Lucy, who had been allotted to Dorothea Dandridge, had never been delivered, but remained with the estate, which was held by John Spotswood, and the bulk of which passed from him to the plaintiff, it would now be iniquitous to compel the descendants of Dorothea Dandridge to give up Mary Ann (whom it was probable she received instead of Lucy) and her increase ; that, according to the maxim, that he who seeks equity must do equity, the plaintiff, if he recovered the children of Mary Ann, should give up the children of Lucy ; that the acknowledgment by William Dandridge, the executor, could not affect the rights of the present defendants, their claim being under the testator, though the property, in coming to thetn, passed through the hands of the executor, neither could the action of detinue and recovery therein, against him, be given in evidence against them, who were no parties to that suit, and received the slaves from him as their property, by virtue of the will of his testator, especially as the judgment against the executor was for other slaves, held indeed in the same right, but not those now held by the defendants.

In reply, it was said, that the legal representatives of John Spotswood (not the plaintiff only) were responsible for Lucy and her increase, if the defendants had a right to them ; that the plaintiff was certainly entitled to Mary Ann, as being one of the entailed slaves; that the judgment *against the executor bound the legatees, because they necessarily claimed under him, since they could not get their legacies without his assent.

Saturday, October 7. The President, after stating the case nearly as above, pronounced the following opinion of the Court:

“The defendants all rely on the statute for limitation of actions, to bar the plaintiff’s claim, which he would repel, by urging that the possession of the slaves by N. W. Dan-dridge, under whom the defendants claim, was fiduciary; and being in trust for the plaintiff, must be considered as his possession ; therefore, the act of limitations cannot operate against him. Admitting that the possession of N. W. Dandridge was fiduciary, so far as it respected John Spotswood, (father of the plaintiff,) or Bernard Moore, executor of the said John, yet, inasmuch as the plaintiff claims, not under his said father, but as heir in tail under the will of his grandfather, Alexander Spotswood, the possession of 1ST. W. Dandridge ceased in the year 1785, and this suit was not instituted till October, 1791, there were more than five years adversary possession in the defendants, which is a complete bar to the plaintiff’s title.
“This being the opinion of the Court, and decisive of the cause, it seems unnecessary to investigate its merits ; in which there appears much equity in favour of the defendants ; and I shall only add that the decree is affirmed.”  