
    Richard Singleton vs. Robert Herriott, Commissioner.
    In order to sell personal property under a decree in Equity, the commissioner must be regarded not only as the agent of the parties, but as being invested by the decree with the legal estate.
    Where the terms of sale preserved by the Court were, that the slaves should be sold “ on a credit of one, two and three years from the day of sale, the commissioner taking bond with personal security and mortgage, to secure the payment of the money — the titles to be made but not delivered until the payment of the first instalment, and on nonpayment, the commissioner should re-sell,” &c. — It was held, that although the commissioner permitted a purchaser to take the slaves without complying with the terms, the statute of limitations did not commence to run against the legal right of the commissionSr until the first instalment became due, either in favor of such purchaser or a third person claiming under him with notice.
    BEFORE GANTT, J., AT GEORGETOWN, FALL TERM, 1831.
    This was an action of trover for three negroes, Peggy, Collin, and George. The plaintiff's claim was founded on a bill of sale from Dr. John Wragg, to Mrs. Patterson, now the wife of the plaintiff, bearing date the 25th day of March, 1825. Mr. Dennison proved the hand writing of the maker of the bill of sale, and of the subscribing witnessess, thereto, both of whom were dead. It was recorded on the 2d of July, 1830. The examination of a Mrs. Puche, taken by consent, was read; she indentified the negroes, except George, who was born subsequent to the sale — and proved that the purchaser from Dr. Wragg had the negroes in her possession a year before her marriage with Mr. Singleton, the plaintiff — and here the plaintiff rested his case. The defendant justified the taking of the negroes, as commissioner in equity, by virtue of sundry orders made by that Court, (see below.) By them it appeared that in February, 1825, the Court of Equity made an order for the sale of the real and personal estate of Thomas R. Mitchell, the negroes in question constituting a part of said estate; the terms were, that the estate should be sold on a credit of one, two, and three years, with bond, mortgage, and personal security — the title, to be made, but not to be delivered until the payment of the first instalment of the purchase money, and in default of sucb payment, tbe commissioner was directed to re-sell, for cash, &c., vide the order, on the 14th March, 1825. The commissioner sold the property in pursuance of said order, and the negroes in dispute were bid ofl by Dr. Wragg; on the 25th March, 1825, he executed the bill of sale before mentioned, to Mrs. O. 0. Patterson, who after wards became the wife of the plaintiff. It appeared to be admitted by the plaintiff, that at the time of Mrs. Patterson’s negotiation with Dr. Wragg for the negroes, she was warned by Mr. Herriott of the incumbrance on the property; but on the assurance of Dr. Wragg, that there was no danger in making the purchase, the contract was made, and the bill of sale taken. It appeared also in evidence, that on the 23d of Aprils 1829, an order for the re-sale of the property bid off by Dr. Wragg, was made. The commissioner reported thereon on the 22d of January, 1830 — the report was confirmed — the commissioner again reported on the 22d of April, 1830, that he, in conformity with the order of the 22d of January, 1830, had sold the negroes now in dispute.
    Dr. Wragg’s bond to the commissioner was dated-as of the 14th of March, 1825, his mortgage of the 14th of February, 1829, and appeared to have been recorded the same day. Mr. North was examined as to the execution of the last mentioned instruments, and said that his impression was, that the bond and mortgage were executed the same day ; but on further recollection, he said from the fact that he was not in Georgetown at the time, that the bond could not have been executed in 1825.
    The negroes were taken by the defendant from the plaintiff on the 6th of February, 1830.
    On the part of the plaintiff, it was contended, that personal property will pass by delivery, and that under existing circumstances, the sale by Dr. Wragg and the title acquired under it, could not be disturbed.
    For the defendant it was urged, that Mrs. Patterson, by virtue of her purchase from Dr. Wragg, could not acquire a better title than Wragg himself possessed, and that by the terms of sale made under the order of Court, the title was not to pass until the first instalment became due and was paid up; that- consequently Wragg could not mortgage the negroes till he had a title for them. That the plaintiff not having had four years possession from the time the first instalment became due, and having been warned by Mr. Herriott of the incum-brance, no adverse title by possession could be set up.
    The jury were charged, that although Mr. Herriott might have taken the negroes under the terms of sale on the failure of Dr.- Wragg not to pay up the first instalment,* yet this had not been done till after the expiration of four years from the time Mrs. Patterson had acquired her title from Dr. Wragg; that in accepting the title from Wragg, it appeared she intended to hold in her own absolute right; and that from •the time possession of the negroes was delivered to her, she held the negroes adversely to the claims of all others; and that her once defeasible right had been perfected by an undisturbed possession for more than four years from the time of her purchase.
    The jury found a verdict for the plaintiff with nine hundred and four dollars damages — The following were the orders of the Court of Equity:
    Mes. Ann Mitchell Mes. R. SmiS, Adm’x of f Wint?r Sittin& A* D*1825' Samuel Smith, et al. J
    On motion of the complainant’s solicitor, ordered that all -the lands and negroes now in the possession of Thomas R. Mitchell, which were devised to him by his father Thomas Mitchell be sold by the commissioner of this Court, on a credit of one, two, and three years from the day of sale, taking bond with personal security and mortgage to secure the payment of the money, the titles to be made but not delivered till the payment of the first instalment, and on nonpayment thereof, the commissioner shall re-sell for cash at the risk of the former purchaser, — the money arising from the sale to remain subject to the further order of this Court.
    HENRY W. DESAUSSURE.
    ANN E. Mitchell, vs. Rebecca Smith, et al. Spring Sitting, A. D. T829.
    On motion of Bentham and Duncan, solicitors for James Furguson, executor of Nornetto Mitcbell, deceased, — ordered that the commissioner do, on the first Monday of May next, sell the negroes mortgaged by Dr. John Wragg, deceased, to the commissioner, for. the purchase money: terms of sale, one-third cash, the balance on a credit till the 1st January next, the purchaser giving bond and mortgage of the property, and personal security.
    (Signed,) HENRY W. DESAUSSURE.
    
      28d April, 1829.
    AnN E. Mitchell, ) vs. V Winter Sitting A. D. 1830. S. Smith, dec’d., Adm’x. )
    The report of the sales being read, on motion of Bentham & Duncan,- ordered that the same be confirmed.
    (Signed,) HENRY W. DESAUSSURE.
   O’Neall, J.,

delivered the opinion of the Court.

The right of the plaintiff to recover depends upon the question, whether he and-his wife have together had four years adverse possession of the slaves in dispute, after the defendant’s right of action or seizure accrued. This question presents two points for consideration ; 1st as to the character of the possession; and 2d as to the time when the Statute of Limitations commenced to run against the defendant.

It is true, as was stated by the Judge below, that " when one holds for himself and in his own right, and not for and in the right of another,” it is an adverse possession. The application of this definition to the facts of this case must show, that the possession of the plaintiff’s wife could not be adverse to the defendant. He sold to Dr. Wragg under an order of the Court of Equity, directing the sale to be made on a credit of one, two and three years, to be secured by bond with personal security and mortgage, the titles to be made but not delivered till the payment of the first instalment, and on non-payment thereof the commissioner was to re-sell for cash. The purchaser, received possession without giving either bond or mortgage; and this was, on the part of the commissioner perhaps, a waiver of any benefit which he would have received from that part of the order. Still, however, this did not confer a perfect right of property on the purchaser; he had only a qualified estate, liable to be divested on failing to pay the first instalment. His possession was according to his title, and consistent with the title of the defendant. He held not exclusively for himself, but with and for the defendant. If he was the plaintiff how seeking a recovery, no one could suppose that his title was perfected by a possession commencing before there had been a failure to pay the first instalment; the purchaser from him with notice of the decree for sale, cannot be in any better situation than he is: the purchase so made is affected by all the equities existing between Wragg and the defendant. Mrs. Patterson’s possession under the title of Dr. Wragg, was consistent with the title of the commissioner until default was made in making payment of the first instalment. Up to that time she held an estate which in buying from Dr. Wragg she legally consented should be divested on his failing to make that payment. She did not hold for herself and in her own right, but for and in the right of the commissioner; her possession, therefore, was not adverse untill that time. It may b'e, as was' supposed in the argument, that upon the failure of Dr. Wragg to give bond and personal security, the Commissioner had the right to re-sell; but if he had the right then, there can be no doubt that he had also the right to seize and re-sell upon default being made -in the payment of the first instalment. He might waive the first without defeating the second. Eor the right to act upon the second default did not depend upon the first; each was independent of the other. The Commissioner might, if he chose, regard the purchaser as both able and willing to pay, and dispense with the execution of either bond or mortgage; it was an act which rendered him liable to the parties in interest, for the purchase money, if he failed to make it out of the purchaser or the property. This is, however, the extent of its effect; it discharged no other lien on, or right in, the property. If bond and mortgage had been given, the Commissioner acting under the order would have had an unquestionable right, if default in the payment of the first instalment had been made, to have seized and re-sold the negroes. The fact that neither of these securities were executed, cannot defeat his right to proceed under the order. Under the mortgage, if it had been executed, be would have proceeded to sell from a failure to pay any of tbe instalments, even if tbe first bad been paid. But under tbe order be bad only tbe right to re-sell if tbe first instalment was not paid. Tbis was a pre-requisite to tbe vesting of a legal right in Dr. Wragg; at this default the defendant’s right to seize and re-sell the slaves was perfect: in other words, he then might, by virtue of his legal estate, defeat the equitable estate of his vendor. From that time his cause of action accrued, and from that time Mrs. Patterson’s possession was adverse to his title; but four years not having intervened between that time and the seizure and re-sale, the defendant’s justification was a legal one, and he was entitled to recovery.

The motion for a new trial is therefore granted.  