
    
      Samuel Lewis et al. v. Samuel Mew.
    
    Four years’ possession of negroes, under a bona fide purchase, for valuable consideration, without notice, will confer a good title on the purchaser, although a considerable part of that time may have elapsed between the removal of one trustee, by the Court, and the substitution of another, who seeks to recover them, as part of the trust estate.
    For a Us pendens to affect a purchaser, there must be something in the pleadings, at the date of the purchase, to point his attention to the property purchased, as the identical property, or parcel of the identical property, in litigation.
    The principle of lis pendens is, that the specific property must be so pointed out by the proceedings, as to warn the whole world that they meddle with it at their peril.
    
      Before Johnston, Ch. at Gillisonville, February, 1846.
    Johnston, Ch. This is a bill brought by the trustee and cestui que trust of certain slaves, against the purchaser of said slaves, for a specific delivery; and the circumstances are somewhat singular; though, upon the whole, I think the law of the case is reasonably clear.
    On the 1st of March, 1841, two slaves, Nanny and Sabina, mother and child, then in the possession of one Zachariah Z. Searson, were sold as his property, by the sheriff of Beaufort District, under an execution of one Maconatty, and bought by the defendant, (Mew,) at the fair price of $632. It is admitted that the defendant, at the time he bought and paid for these slaves, was entirely ignorant of any incumbrance or claim on them; and that- he has been in the possession of them ever since, during which time the slave Nanny has had another child, called Paddy.
    He says in his answer, that the first intimation he ever had that his right to the slaves was questioned, was in the Spring of 1844, when the slaves were demanded of him. The slave Nanny, (of whom the other two are the after increase,) was, among several others, included in a deed of gift, executed by the plaintiff, Lewis, the 27th of February, 1836, by which he conveyed the slaves therein mentioned to Thomas E. Searson, in trust, to permit the said Zachariah Z. Sear-son, who had married his (Lewis’s) daughter, to have the possession of said slaves, and. to receive the income and profits, for the joint benefit of himself and wife, during their joint lives; and if said wife should die during the life of her said husband, then, in trust, to permit the latter to continue his possession, and to receive and apply the profits exclusively to the maintenance and education of such children as might be born of the marriage, until some one of the children should attain majority, or marry; in which events the trust property should be delivered to said children, in equal shares, freed and discharged from all trusts.
    The wife died during the life of the husband, leaving the plaintiff, Emily Searson, her only surviving child, who is still an infant, and sues by her grandfather and co-plaintiff', Lewis.
    After the execution of the deed, and during his daughter’s life, Lewis, with the consent of Thomag E. Searson, the trustee, had sold two of the trust slaves, George and Sancho, the former for $500 and the latter for $400, and purchased, in place of George, a woman, called Rosetta, at the same price at which George was sold, and delivered her to his son-in-law, Zachariah Z. Searson, as a substitute for him. He also placed $400 in his hands, to enable him to purchase another slave, in place of Sancho.
    After the death of his wife, to wit, 1838, Zachariah Z. Searson refunded to Lewis $300 out of the $400 thus placed in his hands, but declined to return the remaining $100; repudiating the deed, which he pretended was executed without his knowledge; and after the trust slaves came to his possession, refused to include Rosetta in the trusts for which she was destined, and sold her beyond the limits of the State, and threatened to sell others of the slaves.. The trustee, Thomas E. Season, also declined to accept Rosetta, or any other slaves, in lieu of those sold, and indirectly supported the objections set up by Zachariah, (who was his brother,) to the trust deed.
    Early in 1840, a bill was drawn up by Lewis and his granddaughter, against the two Searsons, in which the matters I have just mentioned were stated, to compel Zachariah to restore Rosetta, or her value, as parcel of the trust property, in lieu of George; and to refund the $100 of the proceeds of Sancho, remaining in his hands, so as to enable Lewis to substitute another slave for Sancho, and to enjoin said Zachariah from selling or wasting any more of the trust negroes; and also to compel Thomas, the trustee, to accept the substitutes proposed by Lewis, for the slaves sold by him. Before the bill was actually filed, or even engrossed, the case being very urgent, the rough draft was laid before my brother Johnson, who, on the 10th of February, 1840, granted an order for an injunction to restrain Zachariah from “ selling or otherwise disposing of the slaves mentioned in the bill, and now in his possession, and from removing them without the limits of this State, without the leave of the Court;” but the writ of injunction was not lodged till the 13th, nor served till the 20th March, 1841, which was after the defendant’s purchase of Nanny and. her child. The engrossed bill, owing to some attempts to compromise, was not filed till the 17th of August, 1840. On the 1st of March, 1841, as I have stated, the sheriff sold Nanny and her child to the defendant, for Zachariah’s debt; and Thomas Searson, the trustee, is stated to have been present. On the 2d of April, 1841, the two Searsons put in their answers; and Zachariah, in his answer, stated the sale of Nanny and her child by the sheriff, and admitted that he himself had, besides Rosetta, sold two others of the trust, negroes, (Nanny and her child, Edward,) since the filing of the bill, and since the injunction had been served on him: whereupon Chancellor Harper, at May sittings of that year, granted an attachment against him, which was lodged the 28th of May, 1841, and executed in September following.
    The case came on to be heard the 18th of May, 1842, and a decree was delivered the 30th December following, that a receiver be appointed, until a trustee should be substituted in place of Thomas E. Searson; that upon the appointment of said receiver, the said Thomas E. be removed from his trust, and account for his administration; and that Zachariah deliver Rosetta, or her value, to the receiver, together with all the slaves included in the trust deed, except George and Sancho. The plaintiff, Lewis, was appointed receiver, the 7th of January, 1843, and was substituted as trustee, in place of Thomas Searson, the 26th of February, 1844. And he, with his granddaughter and cestui que trust, filed this bill the 9th of February, 1846, asking that Mew, the purchaser of Nanny and Sabina, may be compelled to deliver them, with the issue of the former, born since his purchase. The statement of the case is more troublesome than its decision.
    The defences are, innocent purchase, and the Statute of Limitations. The former is not contested; but the legal title of the trustee would prevail over the title acquired by the purchaser, which was that of Zachariah Searson, who had no title, legal or equitable. But, putting aside the lis pendens of the suit between those plaintiffs and the Searsons, the defendant has acquired a good title by the Statute of Limitations. His possession began to run against Thomas Searson, the former trustee, from the date of his purchase, and having obtained currency, completed its effect before this bill was filed. However, if the former suit was properly lis pendens as to these slaves, neither the statute, nor any other defence, can be set up, by one who comes in under the parties to be affected by the decree, The decree will be executed over the in-trader’s head. Were it allowed to any third person to come in and take the specific property, which is the subject of litigation, from a litigating party, without taking his place, and thus to arrest a claimant, and turn him round to a new litigation, suits would be interminable. In such a case as that, the Statute would only begin to run from the decree, and' here the bill was filed within sufficient time.
    But the difficulty of the plaintiffs is that, in my conception, the former suit was not such a lis pendens as to affect this purchaser. The object of the bill was not the removal of the trustee, nor the transfer of the property. In the progress of the suit, the court became satisfied of the abuses of the trust, and of its own motion made the decree to that effect. There was nothing in the pleadings in that case, at the date of this purchase, to point the defendant’s attention to the negroes he purchased as the identical negroes, or parcel of the identical negroes, in litigation. They were not named in the bill, nor was the deed, in which Nanny was named, •exhibited. The principle of Us pendens is, that the specific property must be so pointed out by the proceedings, as to warn the whole world that they meddle with it at their peril. This.is necessary to justice: for as liberty is very much, though necessarily, invaded, by executing a decree over a party’s head, without allowing him even a hearing, it is but fair to grant him the means of informing himself, when he is in a likely way of getting into such a danger.
    It is ordered that the bill be dismissed.
    From the foregoing decree the complanants appealed, and moved the Court of Appeals to reverse the same, on the following grounds:
    1st. Because it is respectfully submitted that his Honor, the Chancellor, is mistaken in saying that the original suit of Lewis vs. Searson did not identify the negroes purchased by the defendant, (Mew,) and did not seek any relief as to them; and that there was nothing in the pleadings in that suit, at the date of the defendant’s purchase, to point his attention to the negroes he purchased, as the identical negroes in litigation. Whereas, it is submitted that the original suit of Lewis vs. Searson did expressly seek the aid of the Court, to prevent the defendant, Z. Z. Searson, from wasting the negroes conveyed by the complainant, Lewis, to his daughter, which were named in a deed, to the defendant, Thomas E. Searson, the trustee, which deed, the bill alleged, the said trustee would not record, and prayed that he might be decreed to do so. And furthermore, the injunction granted by his Honor, Chancellor David Johnson, in terms prohibited the defendant, Z. Z. Searson, from selling or otherwise disposing of the slaves mentioned in the bill, and then in his possession, which injunction was granted more than twelve months before the present defendant, (Mew,) purchased, and all of which proceedings were sufficient notice of the subject matter of the suit.
    2d. Because, it is submitted that the former suit of Lewis vs. Searson was such a lis pendens as affects the present defendant, (Mew,) and prevents his acquiring a title against any of the parties thereto.
    3d. Because, it is respectfully submitted that the Chancellor has erred, in deciding that, putting aside lis pendens, the defendant, (Mew,) has acquired a good title under the Statute of Limitations. Whereas, it is submitted that the time between the removal of the former trustee, Thomas E. Sear-son, by the Court, and the appointment of a new trustee, ought to be deducted in computing the Statute, inasmuch as that was the act of the Court, which ought not to prejudice a party any more than the act of the law.
    4th. Because his Honor is mistaken in saying that Thomas E. Searson, the trustee, was present at the sgile when the defendant,-(Mew,) bought, there being no such proof offered at the hearing.
    5th. Because the decree is, in other respects, contrary to law and equity.
    Colcock, for the motion.
   Johnston, Ch.

delivered the opinion of the Court.

This Court concurs in the decree, and it is ordered that it be affirmed, and the appeal dismissed.

Dunkin, Ch. and Caldwell, Ch. concurred.

Harper, Ch. absent.  