(D.) BY GIFT TO CHILDREN IN CONSIDERATION OF MARRIAGE; and see tit. "POSSESSION." 1. MOORE'S ADM'R V. DAWNEY et al. Oct. 1808. 3 Hen. & Munf. 127. will be ration of The plaintiff's intestate, intermarried with the daughter of Zacha- When they riah Burnly, Dec. 1795, who was a man of large fortune; and held as gift immediately after the marriage, Burnly sent the slaves in the de- in conside claration mentioned to his son-in-law, in whose possession they marriage. remained until his death, in April, 1795; and afterwards they were seized upon execution, as the property of Zachariah Burnly. The court held, that where a father, possessed of a large fortune, sent his slaves immediately after marriage of one of his daughters to her husband, where they remained until the husband's death, which happened two years and four months after, they would presume the slaves were a gift in consideration of marriage. Per Tucker, J. It appears to me that the delivery of the negroes to the husband immediately after the marriage, may well be presumed to have been in consideration of marriage. 2. circumstance of a parent being indebted at the time he makes TAYLOR V. EUBANKS. Spring T. 1821. 3 Marshall's Rep. 239. Detinue for a slave. It appeared that George G. Taylor, on The mere the marriage of his son, the appellant, made a parol gift of the slave in question to him, and in about one year the slave was taken out of his possession upon an execution issued against the father, who was indebted to the execution creditor in a considerable sum at the time of the gift. The court instructed the jury, that if they adva believed, from the evidence, that the father was indebted at the child, does time of the parol gift of the slave to the son, the gift as to the execution creditor was void in law. Verdict for defendant; and Taylor appealed. advance an ment to his not, of it self, render void; it is the gift the intent to defraud, ates the Per Cur. Owsley, J. If by the instruction given it was intended that vitiby the court to decide, that under the statute against fraudulent gift. conveyances generally, the mere circumstance of a father being indebted at the time of making the conveyance, does, within itself, as matter of law, render a gift made to the son, in consideration of natural love and affection, void as to creditors, we entertain no doubt the instruction cannot be sustained. The statute of this When within the statute. Sending a slave home country, which was taken from, and contains, in substance, the provisions of the 13 and 27 Elisabeth, no doubt makes void all conveyances made with an intention to hinder, delay, or defraud creditors; but it is the fraudulent intent with which the conveyance is made, and not the circumstance of the alienor being at the time indebted, that makes the conveyance void. From his being indebted, an intent to defraud may be presumed; but it is a presumption which may be repelled by other evidence, and which should be made by the jury, and not the court. There may be cases where, from particular facts, it would be proper for the court to infer a fraudulent intent; but those are cases where, from the facts, the law itself implies the intent, and allows the introduction of no evidence to repel the implication. But the circumstance of being indebted is not such a fact from which the law implies an intention in the person conveying, in consideration of natural love and affection to defraud his creditors. 3. TAYLOR, EX'R OF ROWLEY, v. WALLACE AND WIFE. Nov. The question was, whether a verbal gift of slaves to an unmarried woman, to whose husband the slaves upon his marriage were delivered, and in whose possession the same remained until his death, four years afterwards, be within the statute for preventing fraudulent gifts of slaves. The court of appeals certified their opinion to be, that the said gift was void, and within the statutes for presenting fraudulent gifts of slaves. 4. BYRD V. WARD. June T. 1827. 4 M'Cord's Rep. 228. Trover for a slave. Allen married the daughter of Mr. Byrd, with a mar- and when about moving her to his own house, Mrs. Byrd told two ried daughter, and negro women to go home with Mrs. Allen, and assist her; one of permitting the negro women returned soon after, and the other remained main there four years in Allen's family, and was considered by the neighborfour years, is a gift of hood as the property of Allen. Allen becoming embarrassed, the slave to Mr. Byrd executed a deed of trust to the plaintiff of the ne her to re the hus band. groes, for the use of his daughter, Mrs. Allen. The negroes were sold by an execution creditor of Allen. Verdict for plaintiff, and motion for a new trial. Per Cur. Nott, J. Permitting negroes to go home with a daughter, on her marriage, has always been considered as prima facie evidence of an unconditional gift; and the only question now for our consideration is, whether this case is an exception to the general rule. One of the slaves remained four years in Allen's family. Such a length of possession would give a statutory right, and would be conclusive evidence of the intention of the parent. And after that period the father of Mrs. Allen could not, by a voluntary settlement, defeat the rights of creditors. The inference from the facts is, that the property must be considered as belonging to Allen, and subject to the payment of his debts. I am of opinion, that the verdict in this case is contrary both to law and evidence, and that a new trial ought to be granted. 5. CLUNG V. LOCKART. June T. 1827. 4 M Cord's Rep. 251 immaterial Trover for a slave. The plaintiff proved the defendant sent his And it is slave to plaintiff's house about a year after he had married the de- whether fendant's daughter, where the slave remained until the death of the the slave daughter, when the defendant took the slave away. goes with the daugh ter, or is sent.. The court charged the jury that the rule of law was, that where afterwards a parent suffered property to go with a child upon marriage, a gift was implied; but it did not extend to this case. Here the property went into the possession of the son-in-law a year after marriage. Verdict for defendant, and the plaintiff appealed. The court, Colcock, J., held, that the charge of the court was wrong, and a new trial must be granted. 6. MAHAN V. JAMES. Spring T. 1810. 2 Bibb's Rep. 32. is irrevoca Held by the court, Clark, J., that a gift of a slave, accompanied A valid gift by possession, is valid, and cannot be invalidated by a subsequent ble. devise of the donor. A gift of a slave, accompanied with actual possession, vests in the donee an absolute property, unless it be done with an intention to defraud. 10 tute of rolina, a gift of be by deed, or the same ly void; yet, where the gift was by parol, and the do nee had possession, claiming the property as his (E.) BY THE STATUTE OF LIMITATIONS. HARDESON V. HAYS. 1. * March T. 1833. 4 Yerger's Rep. 507. This was an action of detinue, brought by Samuel Hays against Although, by the sta- the plaintiff in error, Hardeson, to recover two slaves, Rachel and North Ca- her child, which Hays claimed as his property. It appeared from the evidence, that the plaintiff below was the original owner of must the slaves; that William Hays, under whom the defendant below, or writing, Hardeson, claimed, married the daughter of the plaintiff, Samuel is absolute- Hays, in North Carolina, in 1811; that between that year and 1818, several slaves had been sent by Samuel Hays to William Hays, which were returned; that in January, 1818, the girl Rachel was sent in exchange for one previously sent; that from 1818, until William Hays moved to Tennessee, in 1826, Rachel remained in his possession, except a few weeks, now and then, when she was at Samuel Hays'; that William Hays claimed her as his own, and exercised acts of ownership over her; that when he removed to Tennessee he carried Rachel with him; that she continued in his possession until he sold her to Hardeson, which was nearly five years; but Hardeson did not have her in possession three years tle was before this suit was brought against him. Hardeson gave William thereby vested in Hays three hundred and thirty dollars for Rachel, her child not him by the act of limi- then being born. The laws of North Carolina, which were read tations, and in evidence, required that the gift should be in writing, or it was absoquently lutely void to all intents. The jury, under the charge of the court, purchaser returned a verdict for the plaintiff. Such parts of the charge as the court deemed material or necessary to notice, are contained in the opinion delivered by Judge Green. own by vir tue of the gift more than three years, it was held, that the ti conse vested in a from him. *The statutes of limitations, in reference to this species of property, are various in the different states where such property exists. In some of the states the limitation is three years, in others it is five. But in all of them the general principles applicable to the possession of chattels, prevail. An adverse possession under the statute for the time limited, gives the possessor a valid title, which he may avail himself of, in an action against him to recover the possession by a plea; or, if disposessed, may recover the slave on the strength of the title gained by force of the statute. And where the possession is not adverse, and consequently the statute does not apply, a possession of twenty years as loanee or mortgagee will give a title. The court will consider the absolute right to the property is in the possessor, by force of the length of possession. Per Cur. Green, J. The Court in this case charged the jury, in substance, that if the slave, for the recovery of whom this suit was brought, was given to William Hays, of whom defendant purchased her, in North Carolina, by the plaintiff, yet the gift not being by deed, proved and registered as required by the laws of that state, it would not pass the title, and that the possession of William Hays would be the possession of the plaintiff; so that the statute of limitations could not operate against the plaintiff; and that if William Hays brought the negro to Tennessee, and had her in possession in Tennessee more than five years, and then sold her to the defendant, that neither the statute of frauds nor the statute of limitations could operate to confer a title, or bar the plaintiff's recovery, unless the defendant had the negro in possession more than three years after his purchase from William Hays. In this charge the circuit court clearly mistook the law. Although the act of North Carolina of 1806, ch. 701. sec. 1., requires that a gift of slaves should be by deed proved and registered, yet, when the parol gift of the slave was made, William Hays held for himself, and not for the plaintiff, who had made the gift. No trust was created between the parties, as would have been the case had the slave been loaned; but the possession was, in law and in fact, exclusively for himself, and adverse to all the world. Having thus an adverse possession in North Carolina and Tennessee, for ten years, the plaintiff is barred by the statute of limitations. In Kegler v. Mills, 2 Martin & Yerger's Rep. 426., this court decided, that an adverse possession, so long as to bar the plaintiff's action against the possession, vested in him an absolute right to the property. The length of his possession, it being adverse, vested in William Hays an absolute right to the property, which was transferred by his deed to the defendant. The court therefore erred in telling the jury that William Hays had not such an adverse possession, in favor of which the statute of limitations could operate; and also, in telling them the defendant could not rely upon the previous possession of William Hays, and that to be protected, he must appear to have been three years in possession of the slave himself. Judgment reversed. |