
    Wheaton vs. Weld.
    1. Where a gift of a slave has been established by bill of sale or delivery, the statements of donor made after the gift shall not be heard to disprove it, but when an effort is made to establish a gift by the declaration of the alleged donor, his counter declarations are admissible.
    2. Where the plaintiff insisted on title to a slave by virtue of a parol gift, and three years adverse possession held by the father of his wife for her, she being a minor, the declarations of the father as to the person for whom he held during such three years, is admissible.
    Wyatt Christian and Frederick Christian were brothers, and Weld, the plaintiff, married the daughter of Wyatt, and brought this action of detinue against Wheaton, who hired the slave in controversy, from the administrator of Frederick. He asserted title to him by virtue of a parol gift from F. Christian to his wife, and possession by W. Christian for more than three years. The case was submitted to a jury by the presiding judge, (King,) at the July term, 1848. The plaintiff introduced witnesses who stated that they heard Frederick Christian state, that he had given John, the slave in controversy, to plaintiff’s wife, and that Wyatt had possession of the slave for a number of years. There was other proof in reference to the possession of John, which need not be here set forth. The defendant offered to prove that Frederick Christian stated to him that he had loaned the boy to Wyatt in the place of one drowned. This evidence was objected to. The judge stated that the defendant might prove the declarations of Frederick, made before or at the time of the alleged gift or delivery, or what he said at the various times and occasions spoken of by plaintiff’s witnesses; and the evidence was rejected.
    The defendant offered evidence to show that Wyatt Christian uniformly stated during the whole period he had the possession of said boy, that he was the property of said Frederick. This was objected to. The judge stated that the declarations of Wyatt Christian made at and before the delivery of the slave to him, and what he said at the times spoken of by plaintiff’s witnesses might be heard, but not declarations made afterwards; and the evidence was rejected.
    Frederick Christian appointed Wyatt the executor of his will, and died; Wyatt died, and Mathews took charge of the estate as administrator under the will. He thereby obtained possession of the slave and hired him to Wheaton.
    The judge charged the jury as follows: “ That previous to the act of 1831, a parol gift of a slave where it is accompanied with delivery, passed the legal title to the property, but since its passage such gift would be void even as between the donor and the donee; the donee may, nevertheless, couple such gift with an adverse holding for the space of three years, so as to perfect her title to the property so given, if the possession be continuous and adverse to the claim of the donor, and all other persons. That if the gift to the wife of the plaintiff was since the passage of the act of 1831, and her father received' the slave and retained possession of him for her, such adverse holding, accompanied with a gift by parol to plaintiff’s wife, would be equivalent to an adverse claim and possession of the daughter. The legal title of personal property, carries with it the right of possession; the father could not change the character in which he held the property so given, after' its induction to his possession, unless by the consent of the donor within three years next after the gift and the possession of the slave under it; and that if the jury believed the boy was given by Frederick Christian to plaintiff’s wife, then an infant, and the boy was afterwards placed in the possession of Wyatt Christian, the father of complainant’s wife, that the law would presume the possession of the father to be the possession of the child, and if that possession continued for three years after such gift, such possession would give title to plaintiff’s wife, and that title, by marital right, would -vest in plaintiff and give him a right to recover.”
    A verdict and judgment were rendered for the plaintiff. The defendant appealed.
    
      Baity and Blume, for the plaintiff in error.
    
      Coe, for the defendant in error.
   Tuuley, J.

delivered the opinion of the court.

This is an action of detinue, brought by John B. Weld against S. M. Wheaton, for the recovery of a negro man, named John. Upon the trial in the court below, the plaintiff introduced a witness, Bowler Cook, who stated that in frequent conversations with Frederick Christian in the year 1839, he heard Frederick Christian say that he had given the negro man, John, the slave in controversy, to Mary C. Christian, the wife of the plaintiff, Weld; that he knew the boy, John, from the year 1826 or 1827, and that he belonged to Frederick Christian, who was the uncle of Mary C. Christian.

The defendant introduced Joseph Lundy, by whom he proved that he first knew said boy, John, in 1831 or 1832, that Frederick C. Christian, at that time, lived within about a half mile of witness, that witness was often at his house, where he saw said boy as the servant of Frederick Christian, until the year 1832 or 1833, about which time he was sent by Frederick Christian to his brother, Wyatt Christian, the father of the plaintiff’s wife. The defendant then proposed to prove, by said witness, that a short time thereafter, Frederick Christian told him that he had sent the boy, John, to his brother, Wyatt, to serve him in place of the one drowned. To the reception of which testimony, the plaintiff objected, and his objection was sustained by the court and the proof refused. In this, we think the court erred from a misconception of the nature of the case. The judge acted upon the legal proposition, that when a sale of property has been established, no proof of any conversation of the vendor made after the sale, shall be heard to impugn it; this proposition is certainly true, and is based upon the principle that no one shall be permitted by subsequent statements to vitiate or set aside his contracts. But in this case, the question, and the only question, was whether or not Frederick Christian had given the negro to his niece, Mary 0. Christian, and the proof introduced by the plaintiff to establish the fact of the gift was declarations to that effect, said to have been made by him; unquestionably his declarations, to the contrary, ought to have been heard, as it is upon a proper adjustment and balance of these declarations and counter-declarations, if they were made, that the judgment of the jury must rest in finding the fact thus submitted to them. Vastly different would it have been if the proof relied upon for establishing the gift, had been direct either by bill of salé or by a delivery.

Froof was also offered by the defendant to show that while the negro was in Wyatt Christian’s possession he always stated that he was the property of his brother, Frederick; this was objected to because it is contended that the negro having been given by. Frederick Christian to Mary C. Christian, the daughter, the possession of Wyatt Christian, her father, was her possession, and that the nature of this possession shall not be changed ’by' the after-statements of the father. This is true in a given state of the case: if there, had been a valid gift of the negro by Frederick Christian, to Mary C. Christian, and the possession delivered to her father, nothing that he could afterwards do or say in relation thereto would affect her rights; she being a minor and in his custody as her guardian for nurture, his possession would be her possession, and adverse possession not being necessary to perfect the title against Frederick Christian, nothing from Wyatt Christian, as to the nature of the possession, would be relevant to the right. But to make such gift valid subsequent to the passage of the act of 1831, ch. 90, it must have been in writing, for by the 12th section of that act, it is provided that all gifts of slaves shall be in writing, or the same shall be utterly void and of no effect whatever. If, then, this gift, as claimed to have been made by Frederick Christian, was made after the passage of the act of 1831, it not being in writing, it could only be made effectual by three years adverse possession; then it being insisted that this adverse possession was held for that space of time by Wyatt Christian for his daughter, Mary C., it became important to know what the character of that possession was, whether it was for his daughter adversely to the right of his brother Frederick, or whether it was in subjection to his brother’s right. Statements thus made by Wyatt Christian during that period of time as to the nature of his possession, are, in our opinion, legitimate evidence to show that he either did, or did not, hold it adversely to his brother. It is attempted to obviate this difficulty by asserting that this gift was previous to the passage of the act of 1831, and that adverse possession was not necessary to perfect the title under it. To this, all that it is necessary to observe, is, that there is no satisfactory proof that the gift was made previous to 1831. There is some proof that the negro was, perhaps, in the possession of Wyatt Christian, previous to that time, engaged in nursing his children, but there is no evidence of a gift at that time; and there is other proof that the negro was afterwards, and subsequent to the year 1831, in the possession of Frederick Christian and claimed by him in his own right, and that he was after-wards sent to Wyatt Christian, in 1832, or 1833. The testimony of Mrs. Etheridge has no specification of dates and it is too vague and uncertain to predicate a gift upon it as having been made anterior to the year, 1831. We think it establishes that a right was made, but when, it leaves entirely uncertain. It was, as she says, before her memory, for she says the negro never was out of her father’s possession within her recollection. The period of her recollection must be referred to a time posterior to the year 1832 or 1833, for Lundy swears that it was in one of these years that the negro was sent to Wyatt Christian by Frederick, he having been previously to that time in his possession, and used by him as his servant on his farm in the years 1831 and 1832. Under these circumstances, we think the declarations of Freaderick Christian, as to the loan of the negro to his brother Wyatt, which were proposed to be proved by Lundy, should have been received, and also any statements made by Wyatt Christian during the first three years he ■ held the negro in his possession, tending to show whether that possession was adverse to the right of Frederick Christian, if it be attempted to sustain the title of the plaintiff, by virtue of such adverse possession.

Judgment reversed and case remanded for a new trial.  