Stubblefield v. Oden , 9 Ala. 651 ( 1846 )

COLLIER, C. J.

The second section of the statute of frauds, enacts, among other things, that where any loan of goods and chattels be pretended to have been made to any person, with whom, or those claiming under him, possession. shall have remained for the space of three years, without demand made and pursued by due course of law on the part of the pretended lender ; or where any reservation or limitation shall be pretended to have been made of a use or property, by way of condition, reversion, remainder, or otherwise, in goods and chattels, the possession whereof shall have remained in another as aforesaid, the same shall be taken as to the creditors and purchasers of the persons so remaining in possession, to be fraudulent; and that the absolute property is with the possession; unless such loan, reservation, or limitation of use, or property, were declared by will or deed in writing, proved and recorded as aforesaid. [Clay’s Dig. 254-5.]

When this case was here the second time, we said that one having possession as agent, may, as a donee with a reservation to the donor, or as a loanee, acquire a title in favor of creditors and purchasers, if the deed or writing is not recorded, and he remains in possession for three years, without demand made and pursued, by due course of law, and this although the possession was first acquired as an agent. Further : “ As it respects creditors and purchasesrs, the actual payment of the hire by W. T. Stubblefield, could not have interrupted the continuity of his possession, and in their favor, if it continued for three years without demand made and pursued by due course of law, it would divest the reservation. which the plaintiff made in his own favor.” [4 Ala. Rep. 4.0.]

In the Bank of the State v. Croft, 6 Ala. Rep. 622, it was held, that where one acquires the possession of slaves under a contract with the owner to pay an equivalent for their services, and restore them to him at the end of the year, a renewal of this contract from year to year, thus continuing the possession of the hirer, without interruption, for more than three consecutive years, is not a loan, See. within the second section of the statute of frauds. In Johnston v. The Br. Bk. at Montgomery, 7 Ala. Rep. 379, the same doctrine is affirmed. See also Tatum v. Manning, at this term.

The facts in respect to the hiring of the negro woman to Ragland, are differently stated from what they were when this cause was here previously. The difference perhaps is not so material as to render inapplicable the principle then announced.. Upon both trials the stipulation was, to pay hire for past services, without a previous contract between the plaintiff and donee, to render an equivalent for the services of the slaves, or any acknowledgment by the latter of the possession of the former. According to the citations we have made, it sufficiently appears that the continuity of of W. T. S.’s possession was not interrupted by a contract to pay hire.

In respect to the second charge prayed, we think it clear, that it was agreeable to law, and should have been given. It supposes that the slaves were in the possession of the plaintiff before the expiration of three years, and being thus restored to him, if he parted with them, the limitation would only begin to run from the latter period. We must presume, if it he necessary, that they returned to the plaintiff’s house without any fault of his, and that he then stipulated, (as he rightfully might,) with W. T. S. that they should only be permitted to go into his possession, if he would undertake' to return them at some definite period. But even if the possession was tortiously acquired by the plaintiff, yet, as it was acknowledged by the donee, and the slaves received by him under the agreement we have stated, the same consequences, we shou Id think, would follow.

Between the time when the slaves were thus parted with, and the commencement of the action by the plaintiff, only about two years had elapsed, so that the defendant cannot if the facts supposed be true, claim the benefit of the statute upon which the defence has been rested. It follows that the second charge asked should harm been given. For the error in its refusal, the judgment of the Circuit Court is reversed, and the cause remanded.