much more dangerous to the repose of society, than the recognition of the principle, that although the remedy was barred, the right of recaption existed, in cases of dormant claims to slaves. That this mode of asserting the claim would result in personal violence of the most dangerous character is certain. No authority is found giving sanction to such an idea. The better opinion is, that when the right exists unbarred, and the true owner, by violence, or by a tortious and unlawful act, obtains possession of the slave, he shall not be permitted to set up his better title, when sued by him who was tortiously deprived of the possession. To do so would be to permit the defendant to take advantage of his own wrong. 3 Hen. & Munf. 61.; 2 Tenn. Rep. 98.; 1 Hayw. Rep. 13.; Act of 1779, ch. 11,; Act of 1799, ch. 28. Slaves having mind, the rule laid down in 3 Black. Com. 4. must be most cautiously applied. He who holds possession of land peaceably for seven years, by virtue of a grant, or deed, acquires a right of soil, and if turned out of possession may regain it by the action of ejectment, Does the same rule hold in reference to slaves, when the remedy of the owner is barred by three years' adverse possession? So we hold; and that three years' possession of the slave in question, acquired without fraud or force, gave to David Kegler a legal title to her, and that the plaintiff ought to recover in this action. We feel it our duty, as also our inclination, to follow the decisions of sister states where slavery exists. Such has been the course of decision in Virginia. Newby v. Blakey, 3 Hen. & Munf. 56. 66. In the Supreme Court of the United States. Brent v. Chapman. 5 Cranch's Rep. 358., followed in Guy v. Shelby, 11 Wheat, 571., and of Kentucky, in Thompson v. Caldwell, 3 Little's Rep. 136. The judgment of the circuit court must, therefore, be affirmed.

(F.) BY POSSESSION* WITHIN THE STATUTE OF FRAUDS, AND

FRAUDULENT CONVEYANCES.

1.

ORR et al. v. PICKETT. Oct. T. 1830. 3 J. J. Marshall's

Rep. 268.

statute of

Per Cur. Underwood, J. Under the statute of frauds five Under the years' continued possession of a slave, holding the slave upon a frauds. loan, or under the title of another, who claims a reservation, or limitation of an use, or property in the slave, is rendered fraudulent, as to creditors and purchasers, and the absolute property declared to be with the possession, unless the loan, reservation, or limitation of use, or property, were declared by will, or deed in

*There is an extended and an enlightened review of the authorities in Kent's Com. vol. 2. p. 512., upon the subject, how far the sale of goods is affected by fraud, by the possession not accompanying the sale or transfer. After a review of the English cases, he observes, that the Supreme court of the United States, in Hamilton v. Russel, 1 Cranch's Rep. 309., have adopted the rule laid down in Edwards v. Harben, 3 T. Rep. 618., that if the vendee took an absolute bill of sale, to take effect immediately, by the force of it, and the goods remain in the possession of the vendor for a limited time, such absolute conveyance without the possession was such a circumstance as, per se, made the transaction fraudulent in law. Which decision is now obligatory in the United States courts. The same principle has been adopted in Virginia. Alexander v. Deneale, 2 Munf. Rep. 341. But the principle seems to be modified by Loud v. Jeffries, 5 Rand. Rep. 211., and Clayton v. Anthony, 6 Rand. Rep. 285., and the cases in the text. The same principle has been adopted in South Carolina. Kennedy v. Ross, 2 Const. Rep. 125.; Hudnal v. Wilder, 4 M'Cord's Rep. 294. But recent cases in that state seem to have adopted the doctrine, that the want of possession accompanying an absolute and unconditional sale, is only prima facie evidence of fraud. Smith v. Henry, 2 Bailey's Rep. 118. In Kentucky and Tennessee, the case of Edwards v. Harben, is respected and followed. It would seem, however, that in Kentucky the principle is modified by the case of Wash v. Medley, 1 Dana's Rep. 269. The rule prevails in its full force in Pennsylvania, except in the case of household goods. Dawes v. Cope, 4 Binney's Rep. 258.; Babb v. Clemson, 10 Serg. & Rawle, 419.; Clow v. Woods, 5 S. & R. 275.; Welsh v. Hayden, 1 Penn. Rep. 57. And the same rule prevails in New Jersey. Chumar v. Wood, 1 Halst. Rep. 155.; but is qualified by Sterling v. Vancleve, 7 Halst. Rep. 285. So, also, in Conecticut. Patton v. Smith, 5 Conn. Rep. 196.; Smith v. Thompson, 9 Conn. Rep. 63. So also, in Vermont, the court held, that in sales of personal property, if the seller remained in possession after the sale, it is fraudulent and void as to creditors. Boardman v. Keeler, 1 Aiken's Rep. 158.; Fletcher v. Howard, 2 Aiken's Rep. 115.; Beattie v. Robin, 2 Vermont Rep. 181.; Judd et al. v. Langdon, 5 Vermont Rep. 2 31.; Fahnsworth v. Shepard, 6 Vermont Rep. 521.

In North Carolina the rule is relaxed: the want of possession in the vendee is only prima facie evidence of fraud, and may be explained. Gregory v. Perkins, 4 Dev. N. C. Rep.

writing, proved and recorded.* And in Meaux v. Caldwell, Fall T. 1810., 2 Bibb's Rep. 244.; S. P. Gillespie v. Gillespie, 2 Bibb's Rep. 8.

Held by the court, Clark, J., that a loan of slaves is within the statute of frauds, and must be evidenced by will or deed, recorded, to be good against creditors and purchasers. Five years' possession gives an absolute right to the loanee, so far as it relates to creditors and purchasers, unless a demand has been made and pursued, by the course of law, before the expiration of that period. As, where a person lending slaves, suffers them to remain 5 years with the person to whom the loan is made, during which time the possessor contracts debts, and the lender then retakes the slaves, they are, nevertheless, liable to satisfy those creditors, the loan not

50.; Leadman v. Harris, 3 Dev. Rep. 146.; and so, also, the same principle is established in Tennessee, Callen v. Thompson, 3 Yerger's Rep. 475. 502. And in New York, by the case of Bisselv. Hopkins, 3 Cowen's Rep.166, the same principle was recognized. And in New Hampshire, Haven v. Low, 2 N. Hamp. Rep. 13. And in Massachusetts, Brooks v. Powers, 15 Mass. Rep. 244.; Bartlett v. Williams, 1 Pick. Rep. 288. Chancellor Kent, in the review before referred to, regrets that the principle, whether the absence of possession in the vendee or loanee shall be evidence of fraud, per se, or only prima facie evidence, and subject to explanation before a jury, is so fluctuating and so variously decided in the courts of the states. It is obvious, from the general tenor of the review, he is in favor of the rule as recognized in Edwards v. Harben, and in the United States Court, in Hamilton v. Russel. He calls it the conservative principle, and one calculated to prevent frauds.

* In Hamilton v. Russel, 1 Cranch's Rep. 309, the court held, that an absolute, unconditional sale of property, where the possession does not accompany and follow the deed, is fraudulent, and must be so determined by the court. Tolcot v. Wilcox, 9 Conn. Rep. 134., is to the same effect. Story, J., in Conrad v. the Atlantic Insurance Company,1 Peters' Rep. 386., says, "without undertaking to suggest whether, in any case, the want of possession in the thing sold, constitutes, per se, a badge of fraud, or is only prima facie a presumption of fraud, a question upon which a diversity of opinion has been expressed," avoiding the expression of an opinion on the point. But in Bissel v. Hopkins, 3 Cowen's Rep. 166., Savage, Ch. J., held, it was only presumptive evidence of fraud, and might be explained, and was a proper subject for the jury. And the same principle was recognized and established in Jackson v. Timmerman, 7 Wend, Rep. 436. In this case, Sutherland, J., observed, that whether fraudulent or not, was in this, as in all other cases, a question of fact for the jury. There being no such thing as fraud in law as distinguished from fraud in fact. What was formerly considered as fraud in law, or conclusive evidence of fraud, and to be so pronounced by the court, is now prima facie evidence to be submitted to, and passed upon, by the jury. The rule may therefore be considered as settled in NewYork, contrary to the English cases, and that laid down in Hamilton v. Russel. And the rule is broken in upon in Tennessee, by the case Callen v. Thompson, 3 Yerger's Rep. 475.

having been declared by any public act whereby creditors could take warning that the slaves were only loaned.

2.

FITZHUGH et al. v. ANDERSON et al. April T. 1798. 2 Hen. & Munf. 289.; VERDIER V. LEPRETE, 4 Louisiana Rep. 41.; THOMAS V. THOMAS, 2 Marshall's Rep. 430.

trine is

the delu

which is

given to

Appeal from the following decree of the superior court of chan- The doccery, for the Richmond district: "That a father, putting his son principally in possession of slaves, and suffering him so long to retain them, founded on (20 years,) and to convert to his own use their labor and services, sive credit that the son thereby obtained a delusive credit, ought to be deemed to have given the slaves to his son, in a controversy between the by the posfather and volunteer claimants under him, and purchasers, or session. creditors of the son, unless his possession had been, by some written act registered in a reasonable time, and in a proper office, shown to have been fiduciary, or no more than usufructuary by some written publication in solemn form premonishing people with whom the son should deal that he was, although the visible, not the real owner." The decree was appealed from.

Per Cur. Tucker, J. The lapse of time between the loan (if in fact it were a loan) of the slaves by the father to the son, being nearly or quite twenty years, the period between the sale and the death of the father, the limitation is a complete bar in analogy to the statute of limitations. Five years peaceable possession of a slave will operate as a bar to the recovery by the former owner, unless some express bargain or agreement be proved, showing that the possession of the holder is, in fact, in the possession of him who claims the property. If no such proof be adduced, the law construes the property to be in him who hath the unqualified possession for such a length of time.

HOOPER'S ADM'X v. HOOPER.

3.

Sept. T. 1801. 1 Overton's
Rep. 187.

And the

acknow

ledgment of the

loanee that

the

ty belongs to the

Held by the court, that if a father represent a negro to be the property of his son, who is about to marry, and which representation induces to the marriage, and delivers possession of the slave, and permits that possession to continue through the son's life, who also claims the negro as his own, it is a gift. The acknowledgment avail.

loaner

will not

The rule as

to who shall be considered

in posses

sion.

The rule in

of the son, that the slave belongs to the father will not be received in opposition to the claim of the widow of the son.

4.

ORR et al v. PICKETT et al. January T. 1830. 3 J. J Marshall's
Rep. 279.; KENNINGHAM V. M'LAUGHLIN, 3 Monroe's
Rep. 30.

Per Cur. Underwood, J. Where there are many persons living together, constituting one family, and there are slaves in the service of the family subject to the occasional orders of each member of it, the possession in law should be considered and regarded as in those of the family who have the right to the property. In such case, if an infant be the real owner, and have title to a slave, the infant should be regarded as in possession, although the father controls the slave, and causes it to work as he pleases. So, also, if the title be not in the infant, but in another, who is bound to hold the title for the use of the infant; then we are of opinion the possession should still be considered with the infant, as cestui que use, although the father directs and superintends the labor of the slave. If parents and adult children live together, and slaves wait on the family promiscuously, as they may be ordered, and the father as the head of the family should superintend and direct the most important employment of the slaves, still possesssion should be regarded as being with those of the family who have title. Where many persons are in the enjoyment of the use of property, be they adults, or infants in part, those who trust upon the faith of the property are bound to discriminate, and to ascertain, at their peril, who has title among those using the property. When the title, whether it be legal or equitable, is found to be in one who, with others, seems to be enjoying the use in common, the possession in law is fixed with that one having title, and his creditors alone can reach the property.

5.

MIDDLETON v. CARROL. June T. 1830. 4 J. J. Marshall's

Rep. 143.

Held by the court, Buckner, J., that an unconditional sale of Kentucky slaves, where possession remains with the vendor, is, per se, fraudulent against creditors and purchasers.