Graham v. . Davidson , 32 N.C. 245 ( 1849 )

Although it does not expressly appear, it must be understood from the manner in which the case is stated, that the gift of Cato from his grandmother to the plaintiff was by parol, and that the delivery was to the father for the plaintiff, then an infant, probably. Such being the case, it may, at least, be a question whether the plaintiff could make a title under the statute of limitations, supposing him to have claimed under the conveyance from his father, unless something more appeared in the case than now does. For, although the statute began to run in May, 1840, in bar of an action against John D. Graham for his refusal to give the negro up to Byers, and although it be further admitted that if he had retained the possession for three years after his refusal, Byers might also have (248) been barred of his right to take or recover the negro, yet the result may be different where he did not retain the slave for that period, but within it delivered him to the donee of Byers, who accepted him, and for anything now to be seen did not hold him otherwise than as Byers had done, as far as he made known to Byers. In such a case it is worthy of consideration whether Byers has not a right to treat a delivery to his donee as a delivery to himself, as the donee is his bailee, unless the latter distinctly apprise the donor that he denies his title and holds for himself, as by a refusal to restore the possession or a wrongful disposition of the property. Green v. Harris, 25 N.C. 311. It is true, Byers might have sued John D. Graham at any time within three years after the demand. But where the negro was delivered to the son, he had no motive to sue the father, unless the son should deny his right, as the father had done, and if he had done so, then, no doubt, the statute would run against him in favor of the plaintiff, because then he would have an action against the son, as well as the father. In demanding the negro, then, it may have been the very purpose of Byers, finding that John D. Graham claimed the negro as his own property, to get him for the plaintiff, and when the father afterwards delivered him to his son, Byers might have considered his purpose answered, and for that reason rested satisfied. For it is not stated he even knew that the father had undertaken to convey the negro to the plaintiff, as of his own gift, and much less that the plaintiff made known to him that he claimed the negro as his own, under a deed of gift from his father, and not under the parol gift of his grandmother. Could Byers have brought trover against the present plaintiff merely upon his taking possession of the negro, and without a demand and refusal, when in the very stating of his title it would appear that he had given the negro to him verbally? Would it have been sufficient (249) for him to show, in support of that action, that the plaintiff's father had refused to deliver the negro on demand, without showing further that the plaintiff likewise denied his title and set him at defiance? If it would not, then Byers never had a cause of action against the plaintiff, and, therefore, it would seem, ought not to be barred by the statute, but might claim the slave, since the title had not vested in John D. Graham at the time he parted from the possession to his son. But, however that may be, as it is not necessary to the present case, we do not propose to decide the point. It is perfectly clear that if the plaintiff, although he took a deed of gift from his father, including this with other negroes, did not in fact assert a title under that deed, but took the negro under the gift from his grandmother, then his possession would not be adverse to Byers; and therefore there would not be three years' possession of that character, and Byers would not be barred. It was upon that hypothesis the instructions asked by the defendant proceeded, and we think they ought to have been given. For although the subsequent declarations of the plaintiff would not proprio vigore vest a good title in him, as in the nature of a conveyance, yet those declarations were material to show that the plaintiff rested upon his having had an adverse possession, which was assumed, because he came in under his father, who had made his possession adverse by an assertion of title. That consequence would ordinarily follow, and it might follow in this case, also, upon the presumption that the plaintiff claimed as his father did, unless it should be rebutted by the nature of the plaintiff's title as donee of Byers, or unless it should appear upon evidence that, in truth and fact, the plaintiff did not set up the adverse title, but being conscious of its defect, abandoned it and held under his grandmother. Now his acknowledgment, (250) at any time, of the manner in which he had held, or then held, was evidence to the jury upon which they might find that his possession was not adverse to his grandmother, but was under her. It was, therefore, at all events, erroneous to assume in the instructions to the jury that the possession of the plaintiff was adverse, in opposition to his admission of the grandmother's title, implied by the declarations proved on the part of the defendant, if credited. It ought, at least, to have been left to the jury on that evidence, whether the plaintiff took the negro and held him under the gift from his grandmother, with instructions that, if he did, his possession had not been adverse to her or her husband, and therefore that he had no title against the latter. Upon this last ground the Court holds the judgment to be erroneous, and that it must be reversed, and a venire de novo awarded.

PER CURIAM. Judgment accordingly.