Lewis & Nichols v. Gilmer ( 1844 )

Mr.- Justice Clayton

delivered the opinion of the Court.

_ This was a suit to try the right of property to a negro man, seized under an execution in favor of the plaintiffs in error, against William Smith, and claimed by the defendant in error. Upon the trial, the plaintiffs in error requested the- Court to charge the jury, “ that if they believed from the testimony, that the possession of the slave remained with Smith, the debtor in the execution, for three years, by virtue of the conditional sale from the claimant, without legal demand or other'process on the part of the claimant, then the absolute property in said slave was.in Smith, and liable to judgment creditors, unless said conditional sale were duly recorded.” This charge was refused by the Court; a verdict and judgment were rendered in favor of the claimant, and the case brought by appeal to this Court.

The charge, as asked for, is founded upon the terms of our statute of frauds, H, &H. 371, and in substance embodies its provisions. The statute of Virginia, from which ours is .copied, has long since received a judicial interpretation in consonance with the instruction requested in this case. It is there settled, “ that five years’ possession will create a title in the possessor, which will inure to the benefit of creditors and purchasers, unless, the deed creating the loan, limitation or condition, be within that time recorded.” The lapse of three years under our statute will have the same effect. Pate v. Baker, 7 Leigh, 88; Boyd & Swepson v. Stainback, 5 Munf. 305; Beasley v. Owen, 3 H. & M. 449. As between the parties and their representatives, the condition or limitation may be effectual after the expiration of the three years, although the instrument be not recorded.' But, as to creditors and purchasers without a compliance with the directions of the act, the absolute property must be taken to be with the possession. See Palmer v. Cross, 1 Sme. & Mar. 66.

The Court therefore erred in refusing the charge under consideration. For this error the judgment will be reversed and a new trial awarded.