#### JOHN R. BRANCH and BENJAMIN *F.*GARY, *Executors of*SAMUEL W. BRANCH, *vs N. A.*H. GODDIN.

One who ha* made a gift of slaves, void by the act <! 1806, (Rev. Code, ch. 66, sect. 12) cannot be estopped to esscrtfhis titló by any act *inputs.*

Nor is he estopped by-the record of a partition of the slaves by a suit, some of the parties to which, being infants, and his wards, sue by him as their guardian.*

The cases of Alston *vs.*Hamlin, 2 Dev. and Bat.' 115, Ármfhld *vs.*Moore, Bush,, 167, and Dixon, *vs.*Waters, 8 Jones, 449, cited and approved.

This was an action of detinue for slaves named, &c., and was submitted to the decision of Saunders, J., at Halifax Superior Court, Fall Term, 1864, on the following case agreed. About the year 1852, Samuel W. Branch, the plaintiffs’ testator placed the slaves for which this suit is brought, by parol, in the possession of Edward Tillery who had married his daughter,- Rebecca. They remained in the possession of the" said Edward, until his death in ÍSSÍ. The plaintiffs’testator administered on his estate, and returned the said slaves in the inventory thereof, and listed and paid taxes on them as such administrator — at November Term, 1862, of Halifax county Court, Rebecca,, widow of the said Edward, and her children, Olivia and Eliza, the latter sueing by the plaintiffs’ testator who had qualified as their guardian, filed their petition for a division of the slaves belonging to the estate of said Edward, of which they were tenants in common, specifying in said petition the above-mentioned slaves as belonging to said c,stats-.. On the 28th of December, 1862, tbe said Rebecca intermarried with the defendant N. A. H. Grod-din, and on the 29th of said month, the said slaves .were *106divided according to a decree made in the said cause, at the previous November sessions. In the division, the slaves sued for were allotted to the defendant and wife. The proceedings were returned in due form to February sessions, 1868, of said Court, and the defendant made a party thereto ; the said division was thereupon confirmed, and ordered to be recorded. The plaintiffs’ testator was present at said division, and fully assenting thereto. He died in January, 1864, having made and published his last will and testament in'writing, of which the’plaintiffs are the executors, by which he bequeathed the ne-groes aforesaid, to the sole, separate, and exclusive use of his daughter, Eebecca, during the term of her natural life, and at h«r death over, &c. But the plaintiffs’ testator never made any demand for said slaves, nor claimed them in any way, from the time he put them into the possession of his daughter, until-bis death.

The slaves have been in possession of the defendant and claimed by him as his property since the division on the 29th of December, !362,.and, upon demand of the executors therefor, he refused to deliver the same, and thereupon this suit was brought.

In the Superior Court judgment was given for the defendant, from which the plaintiffs appealed.

*Moore*for the plaintiff,

Baitlk, J.

In the case of Alston *vs.*Hamlin, 2 Dev. and Bat., 115, it was decided that the act of 1806, (Rev. Code, ch. 50, sec. 12,) having been enacted on purpose to exclude all parol evidence of a gift of slaves, necessarily avoids every estoppel by parol, which, might be set up to defeat its operation. Hence, where the owner of slave# *107made a parol gift of them to bis son-in-law,' who bequeathed them to his children, and died, leaving the donor executor of his will and guardian of his children, *it ,was held*that the taking possession of the slaves and hiring them out, first as executor and then as guardian, was" of no avail to pass the title ; and that there was no possession adverse to the donor ; and, farther, that the statute of limitations did not begin to run against him until he had permitted a division of the slaves among his grandchildren and delivered them over.

The authority of that case has always been acknowledged ; and the principle therein established must entitle the present plaintiffs to a judgment on the case agreed, unless the partition of the slaves, made under the decree of the. County Court of Halifax, shall be deemed sufficient to prevent it. If the plaintiffs’ testator had been a party to the suit for partition, then he would have been estopped by the record from setting up any title to the slaves. Armfield *vs.*Moore, Basb. Rep., 157, Dixon vs. Warters, 8 Jones Rep., 449. But his being guardian to the infant petitioners in that suit, did not make him a- party for the purpose of having any adjudication of his rights. It was his duty, as guardian, to protect the rights of bis wards (whatever such rights may be) in the suit for partition between them and their mother. Unless the plaintiffs’ testator had been made a party, he could not have any opportunity to assert his title in that suit, and henee he oannot be estopped by any order of decree in it. . The division of the slaves which was then' made, in pursuance •f the decree in the cause, and the possession of the parties which followed it, had the effect to put the statute of limitations in operation; and the testator’s, title would.have been barred had not the present suit been commenced within less than three years frem that time.

*108What will be tbe * effect of the record of partition between the parties thereto, when the present plaintiffs shall assent to the legacy, is a question not presented to us, and upon which, therefore, we refrain from expressing any opinion.

As the case now stands we think that the judgment given in the Court below upon the case agreed, is erroneous, and must be reversed;and a judgment be entered for tbe plaintiffs.