#### Garland v. Enos.

Argued November 22d, 1815.

i. Slaves — Adverse Possession — What Constitutes*— Case at Bar. — A testator, (after directing his debts and some legacies to be paid,) bequeathed the residue of his estate to his children, equally to be divided among them; with a proviso, that, if either of his daughters should die without lawful heir, her part should be equally divided among the survivors of his children. One of the ■ daughters took possession of certain slaves in her share, and, having married, died, without any child. For more than five years after her death, her husband continued to hold and use the slaves as his own, without any demand being made by the surviving children of the testator. His possession was considered adverse to their title; and a purchase from- him was protected by the act of limitations. *\*

Henry Enos and Ophia his wife, and the same Henry Enos, administrator with the will annexed, of Martha Dulier, *deceased, exhibited, in the year 1809 or 1810, their bill in the Superior Court of Chancery for the Williamsburg District, against Elizabeth Garland and William Shackelford, setting forth, that Martha Dulier (whose first husband’s name was Guthrie, after whose death she married Dulier, whom also she survived,) was a daughter of Daniel New ; that Daniel New made his will in 1775, which was duly proved and recorded in Gloucester County Court, May 1776, and contains the following bequest; viz. “After my just debts and above legacies being first paid, my will is, that the remainder of my estate be equally divided between my children, as followeth, John New, Daniel New, Martha Guthrie, Sarah New, and Elizabeth Garland. My will is, that, if either of my daughters die without lawful heir, that their part of my estate be equally divided between the survivors of my childrenthat the legatee, Sarah New, intermarried with the defendant, William Shackelford, and took, under the above recited bequest, fifteen negroes, and died without leaving any children, or having ever had a child; her brothers, John and Daniel, having died before her, without issue ; that the only children of the testator who survived the said Sarah, were her sisters, Elizabeth Garland, and Martha Dulier, then a second time a widow; wherefore, the said Elizabeth and Martha became entitled, in equal shares, to the 15 slaves aforesaid; that Martha Dulier made her will in January 1807, which was duly proved and recorded in Gloucester County Court, May 1809, by which she devised and bequeathed all her estate (except one feather bed) to the female plaintiff her daughter ; that, consequently, the plaintiffs had become entitled to one half of the said slaves ; but that William Shackelford, the husband of the said Sarah, and Elizabeth Garland, the other surviving sister, had divided them all by composition between themselves, seeking to exclude the plaintiffs from any share of them. The bill demanded a discovery of the number, names, *Sec.*of the said slaves, in the possession of each defendant — of the composition made between them — and of the time of Sarah Shackelford’s death ; praying an account of profits, and a division of the property, and the profits thereof since *her death, between the defendant Elizabeth and the plaintiffs.

Elizabeth Garland’s answer admitted the will of Daniel New, as set forth in the bill; (submitting the construction thereof to the court ;) the several marriages and deaths therein set forth, and particularly the death of Sarah Shackelford without issue, which event, as she alleged, happened in December 1797, after the death of Martha Dulier’s last husband. She farther stated, that Martha Dulier died about the 1st of February 1807 ; that, from the year 1797, until then, (during all which time the said Martha was dis-covert,) William Shackelford held quiet adversary possession of the slaves now in controversy, whereby he acquired a complete title to them ; and, having so acquired title, he conveyed a part of them to this defendant, by bill of sale, on the 4th of February 1807. With her answer, she exhibited the bill of sale, the consideration expressed in which was one thousand pounds, and relied on the act of limitations as a complete bar to the plaintiff’s claim.

The answer of William Shackelford also admitted the will of Daniel New, as set forth in the bill, the several marriages and deaths therein set forth, and, particularly, the death of his wife Sarah without issue ; without stating the time of her death. He stated that he was in “quiet possession” of the slaves, which his wife took under the will of Daniel New her father, for ten years “from the time of his marriage that, after his wife’s death, he yielded to a proposition of the other defendant, Elizabeth Garland, for the division of the slaves he held in right of his wife ; whereby he reserved to himself five of them, and assigned to her ten ; taking from the said Elizabeth, at the same time, bond and surety, conditioned to indemnify him against the claim of Martha Dulier and her representatives; “that, as to the five negroes reserved by him, he not only relied upon the said bond of indemnity, but, having been in possession of the same for more than five years, which was an adverse possession, he relied upon the said possession as giving an absolute right under our laws ; and that he considered it was the intention of the *said Elizabeth, as it was his own wish, that Martha'Dulier, or her heirs, should have five of the slaves by him rendered up to the said Elizabeth, being one third of the whole. ”

It was proved, by the deposition of Vincent Garland, that Martha Dulier died before Elizabeth Garland was in possession of the negroes ; and that Elizabeth Garland’s husband died in October *1801;*and, by the deposition of William Ferguson, that Sarah Shackelford died in December 1796; that William Shackelford remained in peaceable possession of all the negroes till 1807 ; always claiming them as his property, and using them as such.

The chancellor, at October term 1813, dismissed the bill as to the defendant Shackelford, and decreed to the plaintiffs one half of the slaves which Shackelford had surrendered to the defendant Garland, and one half of the profits since they came to her possession ; of which profits he ordered an account. *241The defendant, Garland, appealed to this Court.

Wirt for the appellant,

contended, 1st, that William Shackelford held a fee in the slaves, under the will of his wife’s father : (but this point he did not press :)

2. That if his title were originally defective, it became complete by an adversary possession of ten years; and it was, therefore, competent to him to pass a clear title to the defendant: (In support of this point, he relied upon Newby’s administrator v. Blakey, 3 H. and M. 57; and Spottswood v. Dandridge, 4 H. and M. 145.)

3. That if, on the contrary, Shackelford’s title was not complete, so that a purchaser under him would not be protected, the decree should have been for a division of the whole fifteen slaves and their increase, between the plaintiffs and the defendant Elizabeth Garland; and if the dismission of the bill was right as to Shackelford, the same grounds would have justified its dismission as to her.

4. The answer of Shackelford is no evidence against the other defendant, who was his alienee ; his declarations in this answer,

being made subsequent to his giving the bill of sale, *being inconsistent therewith : Ford v. Grey, 1 Salk. 286, and 6 Mod. 44; Bull. N. P. 238 ; 2 Bac. 622.

Even if, instead of the answer of a co-defendant, it had been the deposition of a good witness, it would have nothing to do with the cause, since it speaks of facts not put in issue by the bill, (a) So far, indeed, is a deposition from being evidence of a fact not charged by the bill, that no interrogatory in the bill, pointing to this new matter, without a previous allegation thereof, would compel the defendant to answer, (b) The court could not notice the circumstances stated by Shackelford, even so far as to direct an issue to try their truth ; for “an issue out of Chancery ought not to be directed to try a claim altogether unsupported by testimony, or a title not alleged in the bill, but suggested in the answer, without proof.” (c) Besides, the circumstances alleged by Shackelford, having not been put in issue by the bill, Mrs. Garland was precluded from taking testimony to disprove them.(1) Of course, she ought not to lie affected by them.

But, indeed, this answer, if it were evidence, makes no case for the plaintiff. It contains nothing but an inference, or supposition of the respondent, that Elizabeth Garland would give half of the negroes to the representatives of Martha Dulier. As to them, the transaction between Shackelford and her was res inter alios acta, and could raise no consideration in their favour.

5. If the complainants meant to rest their claim on the case made by that answer, the bill should have been amended, so as put those facts in issue as to the defendant, Elizabeth Garland.(d)

6. The bill of sale from Shackelford, being, on its face, in consideration of one thousand pounds, is conclusive proof of the character and consideration of the transfer, (e)

Eeigh for the appellee.

Both the law and substantial equity of this case are in favour of my client.

As to the first point, the executory bequest in the will of *Daniel New was certainly good; for the contingency was not too remote. The equal division directed, and that between the testator’s own “children,” not heirs or issue, shews that the bequest was personal to them, and therefore intended to take effect, not on an indefinite failure of heirs of the daughters, but on a failure of heirs within the lifetime of some one or more of his children, which alone had been a sufficient restriction : but the bequest is to the survivors of his children, that is, to the children surviving the daughter dying without heir ; which plainly imports a dying without heir living at the death of the first taker, (f)

I had thought the single question in the cause was, whether the act of limitation was a bar to the plaintiff’s recovery ?

Mrs. Shackelford died in 1796; her sister Mrs. Dulier being then discovert; and Shackelford her husband remained in possession of all the slaves which fell to his wife’s share, from her death till 1807, without any demand made by Mrs. Dulier, and, of course, without any refusal on his part to deliver the slaves.

Was this an adverse possession ?

If one come lawfully into possession of slaves, having an estate in them for the life of another, and hold over after the determination of such estate ; whether his so holding over, alone, without any other circumstance, constitutes an adverse possession in him, as against the remainder man, is a general question, which, to my knowledge, has never yet been decided.

On principle, I should think it does not.

Had the subject been real estate, or a chattel real, the holding over had clearly been not an adverse possession, but a mere tenantcy at sufferance, which never becomes an adverse possession, till the owner, by some public and avowed act, declare it to be tortious. And, by analogy, the mere holding over of slaves ought not to be regarded as an adverse possession, until the right owner declare it to be tortious by some public avowed act; as demand and refusal, which would be equivalent with entry upon real estate.

*But, in this case, the answer of Shackelford amounts to a declaration that he had never claimed an adverse possession against Mrs. Dulier quoad two thirds of the slaves. He says it was his intention and wish, as he understood it to be that of Mrs. Garland, that the plaintiffs should have half of the two thirds of the slaves he conveyed to her; and the taking an indemnifying bond against the claim of the plaintiffs was a recognition of their right, on his part, as the giving it was a similar recognition on Mrs. Garland’s part.

But it is objected, that the matters in Shackelford’s answer areonot in issue between the plaintiffs and the defendant Gar*242land ; and that the answer of the former is no evidence against the latter.

As to the first branch of the objection, I answer, the matters in Shackelford’s answer are important, only as they regard the point of adverse possession ; a point directly in issue between the plaintiffs and the other defendant. As to the rest, I admit the general rule, that the answer of one is not evidence against another: but here, the answer of the one defendant is relied on only to shew the character of his own possession, which possession the other defendant relies on, as her main defence; and if Shackelford’s simple admission, that his possession was not adverse, would have been good evidence to that point, can there be a doubt that his answer on oath is good evidence ?

Where two defendants are jointly interested, the answer of one is evidence against the other, even on a trial at law. (a)

Wirt in reply.

Mr. Leigh’s cases, on the subject of a tenant of real estate holding over after his term has expired, are all cases ■where the possession commences by permission : but here, the possession of Shackelford commenced adversarily. He held the slaves, as his own, in fee simple, during his wife’s life. After her death, he only continued to assert the rights of ownership which he did in her lifetime.

I deny that his answer is evidence, as to any point, against the other defendant. There is not one allegation in the bill touching the character of his possession. 'The question concerning it was not raised, until introduced by the plea of *the act of limitations. There is no privity between Shackelford and Mrs. Garland. The cases in Peake relate to mercantile partners, who have power to bind each other. Shackelford himself says, that, as to five of the negroes, his possession was adverse, and he pleads the act of limitations. What was true, as to five, was equally true as to all. He says nothing about the character of his possession in any other part of his answer.

Leigh referred to Smith and wife v. Towne’s administrator, ante p. 191, to shew that Shackelford’s parol acknowledgments would have been inadmissible for the purpose of rebutting his alleged adverse possession.

Wirt referred to Hovendon v. Lord Annesley, 2 Schoales & Lefroy, 633; Lockey v. Lockey, Precedts in Chan. 518 ;(b) to shew that, in cases of trusts, the act of limitations begins to run from the time when the trust has ceased; also Western v. Cartwright, Select cases in Chan. 34; and South Sea Company v. Wymondsell, 3 P. Wms. 143, as shewing that, even where the possession commences by fraud, the act will run, unless the claimant against the possession, proves that the fraud did not come to his knowledge until within five years before the filing of his bill.

November 23d, 1815.

*

Detinue — Plea of Non Detinet — Statute of Limitations. — See *foot-note*to Elam v. Bass, *i*Munf. 301, where the cases citing the principal case are collected.

(a)

 Coop. Eq. Pl. 7.

(b)

 Mitf. 44; Coop. 12; Parker v. Carter, ante. p.

(c)

 Paynes v. Coles, 1 Munf. 373.

(1)

 Note. See Wych v. Meal, 3 P. Wms. 311.

(d)

 Coop. Eq. Pl. 332.

(e)

 Vance v. Walker, 3 H. and M. 288.

(f)

 2 Fearne, 187 and seq.; Ibid. 242; Brewer and ux v. Opie, 1 Call 212; Dunn and ux v. Bray, Ibid. 342; Higginbotham v. Rucker. 2 Call 313; Pleasants v. Pleasants, Ibid. 335; Royall v. Eppes, 2 Munf. 479, 491.

(a)

 Peake on Evce. 55.

(b)

 Same case, 1 Eq. Cases Abr. 304, ana 4 Bac. 477.

JUDGE ROANE

pronounced the court’s opinion, as follows :

The court is of opinion, that the decree in this case is erroneous, in not having dismissed the bill of the appellees, as well as to the appellant, as to the defendant Shackelford, therein named ; it appearing, from the evidence in the cause, that the title to the slaves demanded by the bill was vested in the appellant, by an adversary possession of them for more than five years, by the said Shackelford, under whom the appellant claims. The decree is therefore to be reversed with costs, and the bill dismissed as to the appellant also.