Benje v. Creagh's Adm'r , 21 Ala. 151 ( 1852 )

GOLDTHWAITE, J.

— The action of the court below in refusing to grant a new trial cannot be reviewed in this court. Spence v. Tuggle, 10 Ala. 538.

As to the argument that the right of action accrued at the termination of the hiring, there can be no doubt that a bailor, parting with the possession of his slave for a limited time, has the right to resume the possession of his property at the termination of the bailment; and we think ■ also, that the general rule in cases of hiring, where there is no stipulation to the contrary, requires the hirer to return the slave on the determination of his term. Story on Bailments, § 414. But this rule is far from being universal in its application, and may be varied bjr the character of the contract, or other circumstances showing that such was not the intention of the parties. Where the rule does apply, and the hirer, instead of performing the duty devolving upon him, retains the property, the bailor may either treat the bailment as ended, and bring his action; or, where the hiring is from year to year, or a less term, he may consider the bailment as continuing or renewed ; and in this class of cases, the question as to whether the bailment continues, is for the jury to determine, upon the facts before them. These conclusions are based upon the analogies of the law, as regulating the relation of landlord and tenant, (Schuesler & Donnell v. Ames, 14 Ala. 600; 16 ib. 73,) the only difference being, that the holding over of the tenant, in cases where it has the effect of renewing the lease, operates presumplio juris, and in case of a bailee, as a circumstance tbe weight of which is to be determined by the jury. If the holding over was permissive, then, as the gist of the action of detinue is thejwrongful detention of the property, it follows that the action could not have been maintained, so long as this species of possession continued.

As the character of the possession of the plaintiff in error to the slaves in question was properly in issue, evidence conducing to establish the fact that he held them as the property of his children was^ admissible, and his own declarations to that effect might legitimately have been offered; but this fact could not be proved by general reputation, and still less by the opinion of individuals as to the actual condition of the property; and there was, therefore, no error in the action of the court, in rejecting evidence of this character.

Neither are we able to perceive any error in the charge, “that the defendant below^shoxild have either disavowed to the plaintiff’s intestate that he held under him, or that his possession should have been so notorious as necessarily to have put him on his*guard.” The whole doctrine of adverse possession rests upon the presumed acquiescence of the party against whom it is held; and, if inference and presumption could be resorted to, the right in many cases would be lost without the knowledge that it was usurped. In all cases, therefore, where the fact of adverse possession is involved, it is required on the part of the person so claiming, to manifest the character of his possession by acts which, if brought to the knowledge of the opposite party, would clearly show him that the possession asserted was hostile to his own, Angelí on Limitations, 427, and cases there cited; and we do not understand the language used by the court, upon a fair construction, to mean anything more.

Neither was there any error in refusing the charge, that the peaceable and uninterrupted possession by the plaintiff in error of the slaves for six years before the commencement of the suit, claiming them publicly and notoriously, for that length of time, as the property of his children, would-entitle him to a verdict. The evidence tended to show that the possession was held in subordination to the intestate of the defendant in error, and in that case the rule is, that the knowledge of the character of the possession which is relied on, must be brought'home to the party under whom the possession was acquired. Angell on Limitations, 481; Whaley v. Whaley, 1 Spears 225; Ripley v. Yale, 3 Wash. (Verm.) 220. This being the law, and the charge requested assuming that the notoriety of the .claim of the plaintiff in error operated necessarily as notice to the intestate, it was properly refused.

So also, in relation to the instructions requested, that the public and notorious possession of the property was sufficient to furnish a reasonable and 'prima facie, presumption of notice. The character of the possession was a fact to have been submitted to the jury, and it was for them, and not for the court, to determine the weight which should be attached to it, in establishing notice to the intestate of the defendant in error; and the charge, in connection with the refusal of those instructions, was certainly as favorable as the rules which have' been laid down by this court entitled him to.

. The judgment is affirmed.