
    Abraham Avaunt and Wife, late Mrs. Ganey, against Anthony Sweet, Sen.
    
      Columbia,
    
    1804.
    Where a fa-paro/giftof a negro -wench to his daughter on her marriage, and says he will give her another, naming ¿ardsactuaiiy other one,this dencJ of the gift of the second wench.
    But if the fa-wards takes wench balk a-hei'-1 to"a ^son] and keepsher JO years in possession and the husband and -wife do not bringtheir action to recover her, their right will be barred by the statute limitations.
    TROVER for sundry negroes, tried in Marion district, before Treeevant, J. Verdict for plaintiffs. Motion for t • 1
    .From the report of the Tudve who tried this cause, it * o appeared, that Sweet, the defendant, who was the father of , plaintiff’s wife, upon her first marriage with one Ganey, deceased, gave her a negro wench named Phcebe, by taking her by the hand and delivering her to his daughter, and at tile saJHe 4me telling her he would give her another girl name(j pen . -which he some time afterwards sent to her, 0 * ’ agreeably to his promise. It appeared further from the report, that the father, by some means or other, got Peg back from his daughter, and took her home again to his own house, and by deed of gift conveyed her to his son, Silvius Sxueet, which deed was afterwards duly recorded. And this wench remained 10 years in the possession of young Sweet, or his father as his guardian, tiff after Ganey*s death, and her second marriage with the present plaintiff, Abraham Avaunt, when this suit was brought for recovery of Peg, and her children born in the mean time.
    It further appeared from the testimony, that soon after the defendant, Sweet, got Peg back into his possession, he sent a shawl, and some other articles to his daughter, Mrs. Ganey; and upon some uneasiness being expressed by another daughter, he told her these articles were no? presents to Mrs. Ganey, but for Peg's wages. Upon tbis testimony, under the direction of the Judge, the jury found a verdict for the plaintiffs.
    This, therefore, was a motion for a new trial, on the following grounds: 1st. That there never was any valid gift of Peg, by the father to his daughter, Mrs. Ganey; ancl, 2dly. If ever there was, the right to her was after-wards lost or barred, by the statute of limitations.
    1st. On the first ground it was contended, on the part of defendant, that although in this case there was proof of an actual gift and delivery of the wench Phcebe, there was none of the girl Peg. It did not appear that ever the-defendant Sweet, the father, had parted with his property in her, although it was said he had sent her to his daughter, who had had the use of her for some time; but it was urged,
    2dly. That even admitting that the father had actually given Peg to Mrs. Ganey, his taking her back, and making a deed of gift of her to his son, which was duly recorded, and keeping her 10 years after as the property of his son, gave him a legal title to her under the statute of limitations; which declares, that ‘•‘•four years' possession of a, negro or other chattel, was a good title against all others claiming such propertyso that Ganey and his wife, suffering the wench in question to remain so long in the peaceable possession of the defendant Sweet, who was the guardian of his son Silvius, was an actual dereliction of the right to the wench. That the defendant Sweet could not in this case be considered as the trustee of his daughter, Mrs. Ganey, after he had made a deed of gift to the son, which had been duly recorded; and this, it was contended, was notice to all the world, of an adverse claim absolutely on the part of the son, which for ever barred the plaintiffs of their right to the wench Peg, and her issue.
    On the part of the plaintiffs, in reply, it was argued, that a father’s suffering property to go over to a child upon mar-. riage, had always been considered as a gift, or part of her marriage portion; and our courts of justice had ever supported and upheld such rights, as of the highest nature known in law ; and a great variety of cases have been determined on those principles, in different parts of the state. The gift therefore was complete in the present case, by the father’s saying, when he gave Phcebe, he would give his daughter Peg also, and his actually sending her home to her, agreeably to his promise. But it was observed, that the defendant Sweet took Peg back again. To this it was answered, that he had no right to do so, for having once parted with his right, which became vested in the plaintiff’s wife, it was gone from him for ever; and it was an unlawful act in him to take her away from his daughter, and retain her so long in his possession. And as to the deed of gift to his son Silvias, it was null and void, for he had previously given her away to his daughter; consequently, he had no right to make such deed. It is true that the wench did remain 10 years in the father’s possession after he took her back, but he should be considered in the nature of a trustee for his daughter all this time; as it would have been a very harsh and unnatural thing, for a child to have sued a father for a property he had given her, especially at his advanced period of life.
    See the caseof Johnston and Henderson v. Dilliard, vol. 1. p. 232. Hi-ley’s edit. Also, J\eely v. J?emester.-
    
   In this case, the Judges were unanimous in opinion, with respect to the gift of the wench Peg to Mrs. Ganey, after her first marriage,' from the father, the defendant Sweet, as it had been determined over and over again, in a great variety of cases in this country, that a parent’s permitting negroes, or other chattels, to go over to, or along with a child, after marriage, was a good transfer; and it has always been considered as a gift, or part of the marriage portion to such child, and intended as a provision for his or her advancement in life ; and his sending the wench home to her after she had gone to house-keeping, was the. same thing as if he sent her along with her, when she left ais house. But upon the legal effect of the adverse possession of the defendant Sweet., after he took the wench back again, there was a difference of opinion. Three of them, Waties, Bay and Lee, were of opinion, that the act of limitations was too strong and imperious to be got over on the present occasion. Here was unquestionably an adverse possession, or holding over against the right of Ganey and wife ; and they lay by all that time, and ■ slept upon their rights, without pursuing their legal remedy to recover them ; and this is precisely the kind of right which the statute says shall be for ever barred and taken away. And the policy of this act was to make men vigilant in pursuing their legal rights, and to prevent old dormant claims from rising up after a lapse of many years. If there had been any circumstances in this case, to prove, that the defendant had acted as a trustee for his daughter, or had considered himself as such, that, indeed, might have taken the case out of the statute. But so far from, that being the case, he took upon him to make a deed of gift of the wench, after he took her back, as if she had been his own property, which was duly recorded; and this was notice sufficiently notorious, that he did not mean to hold in trust for his daughter, Mrs. Ganey. The relationship between the parties, and the forbearance of Ganey and wife on that account to pursue their rights by action at law, may, and really does, make this a hard case; but that does not alter the rules of law, or the positive regulations of the statute upon the doctrine of possession. They were, therefore, for a new trial;

GaiMKE and Buevaed,

were of a contrary opinion j they thought this an extreme hard case, and if there was any thing to bear them out in it, felt themselves disposed to give this case a contrary construction. The act of the defendant himself, after he had taken the wench away from his daughter, appeared to them sufficiently strong to justify a conclusion, that he either considered himself as a trustee for his daughter, Mrs. Ganey, or acknowledged her right of property, by paying wages for her; for it must be recollected, that it came out in the course of the evidence reported by the Judge who tried the cause, that once upon an occasion when another daughter complained of the partiality probably of the father, in sending a shawl and some other articles to this daughter Mrs. Ganey, that he said “ they were not presents, but for Peg’s zvagesP Here then was a positive declaration or acknowledgment of his paying wages for the use and labour of this zvench on the part of the defendant himself notwithstanding he had taken upon him to make a deed of gift of her to his son, which it was highly presumable, was only a colourable business.

From this it is evident, that he himself considered the property of the wench, in his daughter, notwithstanding he had so detained her in his possession. This they compared to a tenant holding land, who pays rent to a landlord, in which case he never can gain a title by possession, or call the right which he himself acknowledges to be in the landlord, in question. So that whether in this case the defendant be considered as a trustee for the use of the daughter, or as hiring the wench and paying wages for her, they thought the right of property in the plaintiffs, and that .the verdict should stand.'

Rule, however, for a new trial made absolute.  