Neal v. Elliott ( 1857 )

Judge Stites

delivered the opinion of the court.

The evidence conduces to show that the slave Harriet was, in 1847, loaned by James Neal to Cope and wife, who held her up to the sale to Elliott, in 1850, claiming her as their own property, and exercising acts of ownership over her as such; and that Elliott continued to hold her under his purchase until the commencement of this action, in March, 1855.

A number of instructions were asked for on both sides, and the circuit court gave those moved by the defendant, and refused several asked for by plaintiff. The jury having returned a verdict for the defendant, and a new trial being refused, the plaintiff has appealed.

The main grounds relied on for reversal are; 1st. Error in granting and refusing instructions; and, 2d. The exclusion of the testimony of Richard Neal.

No valid objection, it seems to us, exists to any of the defendants instructions except the second. The others properly submit the law applicable to the facts, and relating to the questions to which they are directed; but the second, in our opinion is erroneous.

It is as follows: “That if the jury believe, from ‘ the evidence, that James Neal, the father of Mrs. ‘ Cope, loaned the slave to his daughter and son-in- ‘ law on their marriage, and delivered the possession ‘to Cope and wife, without any reservation in writ- ‘ ing recorded, showing such loan, and that the pos- ‘ session of said slave remained with Cope and wife, ‘ and others claiming under them, for the space of ‘ five years next after such loan and delivery of pos- ‘ session without suit, that the title, so far as purchas- ‘ ers and creditors are concerned, vested absolutely ‘ in Cope and wife, and they ought to find for the de- ‘ fendant.”

Now the only witness who speaks of the period: when Cope and wife were married, is Copon, who was introduced by the appellee. He says they, were married about 1845; but neither he nor any other witness pretends to say that the slave in contest was loaned before 1847, when Cope was about to move from Shelby to Lancaster. The instruction assumes, hypothetically, that there was evidence tending, to show a loan at the time of the marriage, and was in this regard abstract, and well calculated to mislead the jury to the prejudice of the defendant.

If, as assumed in the instruction, the loan was made in 1845, and Cope and wife held, thereunder, for five years nextpreceedingthe'sale to-Elliott, and not adversely to Neal, such possession was sufficient under the Statute against frauds to protect Elliott as a purchaser, although it did not vest title in the loanees as between them and the lender. This would have brought the case clearly within- the statute, and no doubt could have existed as to its operation. The instruction seems to have been framed so as to embody this view, but is hypothecated, upon, a state of fact not before the jury.

1. If a slave be loaned and held by tbe loanee for more than five years, without record evidence of the loan, a purchaser will acquire a valid title by purchase from the loanee, or the slave may be subjected to the debts of the loanee.

As the record now stands the possession certainly did not begin before 1847. None of the witnesses go behind that year. The question is then presented by the seventh instruction of appellant, (which was refused by the court,) whether less than five years possession in Cope and wife, as loanees, would avail Elliott as a defense under the statute? Or in ■other words, whether the possession of Cope and wife under the loan from 1847 to 1850, and Elliott’s possession as purchaser from them, from 1850 to the beginning of this suit, being more than five years .possession in the loanees and their vendee, but less .than five years in either, is sufficient, under the statute of frauds, to divest the lender of his right against the purchaser?

We are not aware that this point has been directly settled by this court.

The act of 1796 (1 Vol. Stat. Law, 739) provides, that “where any loan of goods and chattels shall be ‘ pretended to have been made to any person with ‘ whom, or those claiming under him, possession shall have ‘ remained by the space of five years, without demand ‘ made and pursued by due process at law on the part ‘ of the pretended lender; or where any reservation c or limitation shall be pretended to have been made ‘ of an use or property by way of condition, rever- ‘ sion, remainder, or otherwise, in goods and chattels, ‘ the possession whereof shall have remained in anoth- ‘ er as aforesaid, the same shall be taken, as to the * creditors and purchasers of the persons aforesaid so ‘ remaining in possession, to be fraudulent within this ‘ act, and that the absolute property is with the pos- ‘ session, unless such loan, reservation, or limitation ‘ of use or property were declared by will or deed, 1 in writing, proved and recorded as aforesaid.”

In Shacklett vs. Kershner, 1st Littell, 227, where the appellant claimed title to a slave through a purchase made at a sale under an execution against one McGee, who had been in possession under a loan for .three or .four years, .and where the question was, whether such holding was fraudulent within the act, this court say, “If McGee had remained possessed ‘ under the loan for five years it is conceded, as the ‘ loan was not recorded, that it wmuld, by «he statute ‘ of this country, as matter of law, be fraudulent and ‘ void as to McGee’s creditors, and purchasers under ‘ him. But McGee was not possessed for five years; 'and it is only where the loanee remains possessed ‘ for five years that the loan is declared fraudulent by ‘ the statute.”

In Fightmaster vs. Beasley, 7 J. J. Mar. 412, the question was raised whether the statute, supra, applied where a slave was possessed for five years under a loan, and such possession partly in Virginia and partly in this State. It was held that the possession must be five years in Kentucky, and that the previous possession in "Virginia could not be connected with that here, so as to make up the time required by the act.

In Penny vs. Davis, 3 B. Mon. 314, the point was raised whether a deed of trust from the lender, properly recorded, declaring his title, and appointing a trustee to hire out for the benefit of the cestui que trust a slave which had then been in the possession of the loanee near five years, took the case from within statute, notwithstanding the possession still continued with the loanee. It was held that such deed amounted to an actual resumption of title on the part of the lender, and relieved the case from the operation of the act.

All the cases in which the question is at all alluded to seem to recognize and adopt the idea that there must be five years possession in the loanee before the law will divest the owner of his right as to the creditors of the loanee or purchasers claiming under him. And this seems to comport not only with the letter, but the reason and policy of the act.

It was intended not for the benefit of parties or privies to such loans, nor to affect the title of the property so far as they are concerned, but for the protection of third persons who might be prejudiced by the fraudulent combinations of such parties. It was designed to prevent the obtention, by the loanee, of a false and fictitious credit based upon the semblance of ownership of property resulting from the possession for the period named in the act, and to inhibit its real owners from contributing to such end. And furthermore to protect purchasers who might rely on such possession as evidence of title in the loanee.

2. But when the possession of the loanee has been less than five years the purchaser will acquire no title, and the time which the purchaser hold3 after his purchase cannot be-added to the time whichthe loanee held under the loan, to oonsti tute a bar by 5 years possession

But to avail himself of the protection of the act a party must show a case within its provisions.

Where he relies on a purchase from a loanee he must show that such loanee has had a possession sufficient to carry with it the absolute ownership of the property. If he buys before his vendor has had such possession then his attitude is no better than that of his vendor, and he cannot claim the protection of the act. The possession of the loanee, where it is short of five years, is the possession of the owner of the property, both as to the loanee and all others. Where it continues for five years without a proper registration of the loan, it then becomes fraudulent as to third persons—creditors of the loanee and purchasers from him, and those claiming under them—and carries with if the absolute property. But to divest the owner of' title as to creditors and purchasers of the loanee, the possession under the loan must have continued for five years. The law permits him to lend his slave or other property for any time short of that period, without prejudice to his title, and a purchaser from, the loanee, within the five years, cannot rely upon the prior possession of his vendor as fraudulent within the act. Nor will the law for the protection 'of such purchaser add the previous possession of the loanee to, that of the purchaser in order to make out the time required by the act. The previous possession of the loanee is the possession of the lender. It is amicable and subordinate to his title, and continues his possession as to all the world until it reaches five years; and there would be as much propriety in. making the possession of the owner himself avail for the protection of a purchaser in such case, as to give that effect to the possession of his loanee where it has continued less than five 3'ears.

3. Theposses®““ee ofbef^ the lapse of five possession11 of the loat101'» a“<* not adverse to his title, 4. A^eo-plaintiff eosts though he °jn the subject in therefore an incompetent witness for pl’tiff.

So that in this case if the jury should believe there was a loan of the slave to Cope and wife and that thejr held under such loan for a period less than five years before they sold to Elliott, then the statute of frauds has no application, and cannot avail Elliott as a purchaser from the loanee.

If, however, the holding of Cope and wife was in their own right and not as loanees, then such holding from the time it commenced, will inure to the benefit of the purchaser and may be computed with his own possession so as to constitute the five years v , , . adverse possession under the statute -of limitations and thus protect him under its provisions.

We are of opinion therefore that the circuit court erred in giving the second instruction asked for by appellee, and in refusing the seventh asked for by appellant. No other substantial error to-appellants prejudice is perceived, either m refusing instructions, or in excluding the deposition of Richard Neal. He ■ . , , . was a co-plamtm and liable lor costs and the sale or transfer of his interest after the commencement of the suit did not exonerate him from such liability.

For the reasons stated the judgment is reversed and cause remanded for a new trial and other proceedings not inconsistent with this opinion.