State Ex Rel. Fanshaw v. Jones ( 1850 )

This is an action of debt on the bond given by Jones as the administrator of the will annexed by Henry Britt, deceased. Pleas, conditions performed and no breach. The relator is the administrator of the testator's widow, who dissented from her husband's will. The breach assigned is in not distributing a negro slave named Mary Ann and the sum of $200, left by the testator and not effectually disposed of in his will. It was admitted at the trial that, if entitled at all, the relator was entitled to one-third of the negro and money, and that, before suit brought, he demanded the same of the defendant Jones, who denied the relator's right to any part of the fund. In the will there is the following clause: "The girl Mary Ann, which was picked up or found at my door, is to remain with my wife Polly until she arrives at the age of twenty-one; and then it is my will that she be and enjoy all the benefits of a free person of color. I also give and bequeath to the said Polly (155) the sum of $200."

For the purpose of showing that the girl Mary Ann was the slave of the testator, the relator gave evidence to the following effect: The testator resided in Currituck County, and about 1829 one Wilson, who resided in the same county, sold to one Willis a female slave, named Milly, who was pregnant. Willis resided in Caswell County, and was a negro trader. The woman ran away from Willis in Currituck, and in some short time afterwards she came to the house of a widow lady, who lived in Currituck, and a short distance from Britt's, bringing with her a female infant, perfectly naked and apparently not more than a day old. The lady told the woman that she and her child would die if they continued in that condition, exposed in the woods, and advised her to go to her owner. The woman went away, and in two or three days afterwards a mulatto female infant was found at the door of Britt's house, who is the girl Mary Ann. But the lady did not see the infant in any short time, and therefore did not know her to be the same which the woman Milly brought to her house; but evidence was given that the girl Mary Ann is a bright mulatto and bears a family resemblance to the said Milly. Britt and his wife had no children, and took the found child into the house with them, brought her up tenderly, and became much attached to her. About four years afterwards Willis returned to Currituck and claimed Mary Ann as the child of his woman Milly and his slave, and demanded her from Britt. But the latter refused to give her up, saying that neither Willis nor any other person should have her without establishing a title to her by law; for that he (Britt) did not claim her as a slave, and believed that (156) she was not, but that she was the offspring of a white woman and a colored man. Britt frequently made similar declarations until he made his will and died, which was in 1836. Since that time the girl Mary Ann has lived with the defendant Jones, but he did not claim her as a part of Britt's estate, nor as the property of any person.

Upon the foregoing evidence the court instructed the jury that their first inquiry should be whether the girl Mary Ann was born a slave or not, which depended upon the fact whether she was the child of a free woman or of a slave. If they should find that her mother was free, then their verdict should be for the defendants. But if they should be of opinion that she was the child of the woman Milly or of any other slave mother, so as thereby to be, herself, a slave, the next inquiry was whether she was the slave of the testator, Britt. And upon that point the court proceeded to say that the possession of Britt, as stated, was insufficient to vest the property in him, unless during the time he claimed a property in her; for, to have that effect, his possession must not only have been maintained for three years against all other persons, but must also have been maintained with a view to his own benefit; and, therefore, if the jury should be of opinion that Britt did not claim Mary Ann as his slave, then, also, the verdict should be for the defendants. From a verdict and judgment against him, the relator appealed. The directions were certainly right, if the jury believed the foundling to be the child of a free mother. But on the supposition that her mother was a slave, the directions were clearly wrong, at least as to the money claimed by the relator; for, whether the donee of the money was a slave of the testator, or of Willis, or of another person, (157) she was equally incapable of taking under a bequest, and the $200, therefore, resulted to those entitled to the surplus of the estate. The Court, however, holds that the whole of that part of the instruction was erroneous, if in fact the child was a slave. For the possession of Britt, and of the defendant since Britt's death, was, undoubtedly, adverse to Willis, to whom the testator refused to deliver the child upon demand. Indeed, the instruction supposes the possession of Britt to "have been maintained against all other persons"; in other words, to have been adverse to all the world who claimed the girl as a slave; and yet, it was laid down further, that such a possession did not vest the title of the slave in the testator, if he believed her to be free and did not keep the possession with a view to his own benefit. The Court cannot adopt that opinion; for the possession for more than three years bars the action of the owner under the act of 1715; and then the act of 1820, Rev. St., ch. 65, sec. 18, is that the person so in possession, and those claiming under him, shall be deemed to have a good and absolute title to the slave as against all persons so barred by the statute of limitations. When the owner is thus barred and loses his action and title, the negro must necessarily belong to the possessor; the status of the slave is not changed, but continues, and as a slave must belong to some one, and as no one can recover from the possessor, such slave must be deemed in law the absolute property of the possessor. So the rule was laid down in the case of White v. White, 18 N.C. 260, and it governs the present case.

PER CURIAM. Judgment reversed, and venire de novo.

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