Strong v. Strong , 6 Ala. 345 ( 1844 )

ORMOND, J.

It is contended by the counsel for the defendant in error, that although the court may have erred in its charge to the jury, yet as it is evident from the record, that the plaintiff i» entitled to recover, this court will not reverse the judgment.

This supposition is derived from the long continued possession of the slave by the defendant in error. As the absolute title to the slave in controvers}^ is shown to be in the son, as between him and his father, no length of time would bar a recovery, unless the possession of the father was adverse to that of the son. If the possession of the former was by the acquiescence or permission of the latter, it was not inconsistent with the title remaining in the son; and although, as against creditors or purchasers without notice, the possession of the father would be evidence of title, in a contract with the son, he is estopped by his deed, from denying that the title is not in the latter, unless he shows that he has held the slave adversely to him, a sufficient length of time for the statute of limitations to operate a bar to a recovery.

Whether he did hold adversely, or by the consent of the son, and in subordination to the deed, was a question to be determined by the jury, and in this point of view, and to show the character at least, of the commencement of the possession, the testimony of the witness Brewer, was competent.

There is an intrinsic difficulty in ascertaining the value of a life estate in a slave, as it depends on so many contingencies.— This the plaintiff may always prevent, by bringing the action of detinue, when the jury may compel the restoration of the property by assessing the damages to its value. If, however, he brings trover, he can only recover damages to the actual extent of the injury he has sustained. The court, in effect, told the jury, that the measure of damages was not the injury actually sustained, but that assuming the title of the plaintiff to be a life estate only, they might find the value of the slave in damages.

Let the judgment be reversed, and the cause remanded.