
    Winburn's Ex'ors v. Cochran.
    where the executors of a bailee assume the absolute ownership of the property and perform-acts inconsistent with tho acknowledgment of the title of the bailor, the statute of limitations commences to run and bars an action by the bailor in two years.
    The statute of limitations not only bars the remedy for the recovery of personal property but vests the right; so that if the former owner sluuld casually obtain the possession, the subsequent claimant under the statute may recover it. Qucref As to real estate. (Note 30.)
    Appeal from Washington.
    
      J. E. Shepard, for appellants.
    There is a single question involved in the case: Will the statute of limitations vest the property? It is expressly so decided in Broh v. Jenkins, 2 La. Cond. R., 20.
    “The statute is not only a bar to the remedy for personal property, but it “ takes away the legal right and vests it in the holder; so that, if the property “ comes to the hands of tiro former owner, the party may bring suit and recover it from him. Legal right and legal remedy are the same thing.” (5 Litt. R., 2S2; Starly v. Earl, 3 J. J. Marsh. R., 278, 368, 374; 3 Litt. It., 138; Litt. Sel. Cas., 430.)
    That adverse possession of land gives title there can be no doubt. (Angelí Lim., 396.) “An adverse possession, where it actually exists, may be set up “ against any title whatever, and to make out a title under the statute of iim- “ itations.” (Broadstrc.et v. Huntingdon, 5 Pet. R., 438, cited, with numerous other authorities, in note 1, p. 390, Angelí on Limitations.
    The reasoning is certainly much stronger why possession should give title to personal property.
    The Supreme Court of Louisiana gives three methods of acquiring title to slaves: “by prescription, the owners consent, or a forced alienation.” (Dufour v. Comfranc, 2 La. Con., 245.)
    
      Lewis fy Barber, for appellee.
    L The statute of limitations will not aid the appellants. They were plaintiffs and should have set out-how they claimed.
    II. Where the statute is relied on, there must be some allegation, cither by exception, answer, or petition, to show that it is intended to be relied on, so that the defendant may reply to it.
    III. The statute could not create a right, hut an exemption from servitude of judicial process. (Angelí Lim., 1, 2 and 5.)
    The 17th section of our statute of limitation creates a title simply by possession ; tile others exempt the party from suit.
    - IV. The possession of the appellants was permissive, and could never ripen into a title. (Angelí Lim., 401.)
   Lipscomb, J.

Tho refusal of the court to grant a new trial is assigned for error. On looking into the statement of facts it will be seen that as to the mode in which the appellants acquired possession of the slave sued for there is little or no conflict in the testimony. It is in evidence she wont into the possession of McHenry Winhurn, tins former husband and testator of Mrs. Robinson, before the year 1842, by a loan from the brother of Mrs. Robinson, Jeremiah Cochran ; that she remained in the said possession of Winhurn until some time in the year 1847, when the said Winhurn died testate, making his wife (Lucy A.) and J. L. Hill his executors; that she was taken possession of by the executors shortly after the death of Winhurn as a part of his property, and so continued down to about the 19th July, 1851, when she was clandestinely taken by the defendant, Thomas Cochran, in the night time. For the defence it was in evidence that Jeremiah Cocí trail died in 1843 or ’44, and Tliomas Cochran administered on his estate. And one witness swore that she, the slave, was sent to the administrator to be appraised. Whether the statute of limitations commenced running- anterior to the time of the death of Winburn, need not be discussed, as there can be no doubt from the evidence that from that time the possession was adverse and the statute commenced running-, and, fixing on that period for its commencement, it liad completed the bar'before the. slave was captured by the defendant. The evidence of Hill and Kaller is conclusive on this subject, and it is not, in the slightest degree, controverted by 1 lie other witnesses.

Note 20. — Thurmond v. Trammell, 28 T., ST1. As to title to real estate acquired by limitation, sou Cunningham v. Frantzen, 26 T., 34; Moody v. Holcomb, 26 T., 714.

It. was however contended by the defendant that the statute docs not give a right; that it only interposes a bar to a recovery, which may bo exemplified in this way: if defendant-, instead of taking the negro clandestinely, had sued Robinson and wife, the statute would have been a bar to his recovery; but as he had recapt urod her, no matter how reprehensible t lie means resorted to. the statute would not now operate against him. Strange mode of reasoning ! — that the statute- could be defeated by such unjustifiable means ! But, strange as it is, it at one time, received judicial countenance in the courts where the common law formed the body of jurisprudence. Their maxim was that the statute could be used as a shield of defense but not as a sword to assail. This doctrine lias, however, been overruled, so far as the statute applies to personal property, or property capable of being- moved from place to place; and it lias so often been so l-iilecl by the highest judicial tribunals of the land that the statute, when tlie bar becomes complete, not only bars the remedy but vests the right in a slaw, which right could be set up and sustained in the courts of any other State where the slave should have been moved after such bar had been completed, that it is not now to be questioned. And it may safely be said that this has boon the rule of decision in all of the southern and western States for nearly a half century. It has been repeatedly so held in Virginia, North Carolina. South Carolina, Tennessee, Kentucky, and Louisiana.

This has always been the rule of the civil law, and oue of the modes by which property can he required is by prescription according to that system. In England, when the first statute was enacted, personal property was not held in very high estimation, and it was not, with the exception of merchandise, used in commerce, often the subject of trafile; and the policy of the statute was supposed to embrace contracts for money or possessory actions for real property. It is, however, with us greatly different. The value of personal property in the South vastly exceeds that of the landed, and as to personal property, we form our first impressions of ownership from the possession, and the personal property in possession is sure to gain to its possession some credit; it is sold and conveyed from hand to hand without any other formality than delivery; therefore possession is looked upon as evidence of title. Not so with lauded property. The records of the court will always disclose who are its true owners. But the rule is too firmly established to excuse discussion. There was no conflict as to the possession of the executors of ’Wmburn, and the verdict was clearly not only against the evidence but contrary to the law as applicable to the facts proven, and the court below erred in overruling the motion for a new trial. The judgment is reversed and the cause remanded.

Reversed and remanded.  