#### THOMAS W. HOLLOWEL vs*.*CHARLES W. SKINNER.

Where a father places personal property, other than slaves, in the possession of his son, about the time he arrives at age and suffers him to continue such possession, uncontrolled, for a considerable time, using it as his own, the law implies a gift, which can only he rebutted by express evidence of a mere loan.

But, although an imposition on particular creditors by false representations on . the part of the father of the son’s credit might make him liable in a proper action, yet even an express fraud of that kind would not work a change of property so as to render what was really the property of the father subject to an execution, against the son.

An irregularity by the sheriff in making a sale under an execution can only be objected to by him, whose property is sold under the execution or by those claiming under him.

The cases of *Stallings*v *Stallings,*1 Dev. E<j. 298, *Farrel*v *Perry*1 Hay. 2, *Carter*v *Rutland,*1 Hay. 97, and *Mkinson*v *Clarke,*3 Dev. 171, cited and approved.

Appeal from the Superior Court of Law of Gates County, at the Fall Term, 1843, his Honor Judge Nash presiding.

This was an action of trover, in which the plaintiff de-dared for the conversion of eighty hogs and thirty-one *166head 0f cattle. The plaintiff shewed sundry judgments at ^ie instance severa¡ persons, obtained at May and August Terms, 1810, oí Perquiraons County Court against William c. Skinner, amounting in all to upwards of $1200; but gave no evidence of the time when the debts, upon which the judgments were rendered, were contracted, nor of the consideration of the said debts. The plaintiff then proved that he had bought the property, claimed in the declaration, under executions upon those judgments — that William C. Skinner, had, for some time before the rendition of the judgments, under which the sale was made, the possession of the property and continued this possession up to the sale— that the sale under the executions took place on the 25th of September, 1840 — that possession of the property was demanded of the defendant, who, after the sale, had got it into his possession, and that it was refused, and he then proved the value of the property.

In order to repel this *prima facie*evidence of title, the defendant proved, that in 1835 he purchased the farm in 'Old Neck in Perqnimons County, and all the stock of horses, cattle, sheep, hogs and farming utensils upon it; that for the years 1835 and 1836 he carried on the farm under the management of an overseer; that-the first of the year 1837 he put William C. Skinner, his son who was then under the age of twenty one years, in possession of the farm and continued upon it the slaves, horses, cattle, sheep, hogs, farming Utensils, .&c., ;.&c., and agreed to give him half of the wheat crop, which was then on the land, and that he would give him the property, if he found he knew how to manage it and conducted himself properly-; that William came of age in the Summer of 1837; that from the time he took possession in 1837 he continued the possession until the summer of 1840, when he went tip the country with his family; that while he had possession of the farm, he made whatever use of the crops and appropriated them as he thought proper, but disposed of none of the other property ; that his father, who lived some 18 or 20 miles off, occasionally visited the farm and gave him such advice in relation to *167the business of the farm as he deemed proper: that the tie and hogs claimed in this action were the same or the pro- , b . . 1 , once of the same that were on the farm previously to and at the time William C. Skinner took- possession; that W. C. Skinner purchased some furniture and stock,, all of which was sold under executions against him in July, 1840 ; and that his father never made him any title to the property put into his possession.

The plaintiff then proved- by a- witness, who was present when the demaud was made, that the defendant remarked to-the plaintiff, that if he had known the time when the sale was to have taken place, he would have had some person there to bid for him, that he hoped the plaintiff had purchased the property for him,- and he would pay the plaintiff the amount he bid for it- — that the plaintiff refused' t'o a-ccepf this offer, unless he would pay him the whole amount of the debt due to him from William C. Skinner.

if. *H. Small,*a witness for the plaintiff,

proved that the defendant and his son W. C. Skinner attended a vendue in-February 1837, at which the witness was present; that; after the sale was over, and the persons, who'had purchased' property, were giving their notes, the defendant, being near the table when the persons who had conducted the sale were-taking the notes, remarked,’that he had given his son William $30,000 worth of property, or that he had given to his' son the possession of $30,000 worth of property — which' expression the defendant used, the witness could not state, Another witness for the plaintiff stated that in 1839 he was1 employed by William C. Skinner as an overseer and lived' with him in that capacity upon-the farm in Old Neck; that during that year the defendant came there and requested the-witness to send two of the hands on that farm to assist him in clearing a fishery; that not finding William C. • Skinner at home, the defendant complained of his being absent, and-remarked that be had better stay at home and-attend to his-business himself, instead of employing an- overseer; that he had fallen in debt $500 every year, and in a few years' it would .take all the property to pay his (William’s)debts. *168and it should all go *to*pay *his*debts, that as he, William, not set along with the propery,he would then see how D ° . , . . , he could get along without it. Another witness tor the p]a}ntjff proved that he was the clerk in a store for John S. Wood & Co. and afterwards for W. Bruer. in 1839, near where Charles W. Skinner lived; that William C. Skinner purchased articles that were used upon the farm and that he also purchased some furniture. W. *Bagly,*another wit. ness for the plaintiff, stated that he as Sheriff of Perqui'm-ans County, having one or more executions against William C. Skinnpr, to satisfy them adveítised a sale of personal property to take place at the farm in Old Neck in July 1840; that, before the sale commenced, the defendant asked him what property he intended to sell; that *this*was *in the*piazza of the house; that witness told hitn he would sell such property as Wm, C. Skinner could best spare,.and requested William to point out such; that the defendant requested his sonto make out a list for him (Bagly,) remarking that rt was unnecessary for them to go over the plantation selling property, “go and sell all, all should be sold to pay his, William’s, debts;” that William C. Skinner made out a list of property, by which he Bagly) sold, until he sold moré than en'ough to satisfy the executions, which he'then held against him by some small amount. The account of sales returned by the Sheriff, with the executions under which he then sold, were exhibited to the Sheriff and he identified the property sol'd at the sale in July 1840 as being the same property of which William C. Skinner furnished hi’m with a list, at the time spoken of by the witness.

The defendant then' proved, that all the property, of which William C. Skinner made out a list at the sale in July, 1840, with the exception of an ox-cart, consisted of property, which William C. S’kiuner purchased after he took possession of the farm ; andas to that ox-cart William C. Skinner deposed, that until he referred Co'the Sheriff’s account of sales, he did not recollect it was sold at the sale in July ; that he supposed he had' put it in the list furnished the Sheriff, because *he*had expended nearly the value of *169the cart in having it repaired. The defendant introduced another witness, whose recollection of the conversation tween the defendant and Bngly agreed substantially with that of the latter, with the exception of the remark made by the defendant, when he requested William to make out a list. This witness’s recollection of this remark was, that the defendant requested hrs son “ to' make out a list of bis property, as *it*was unnecessary to go over the house, selling the property.The property sold at that sale consisted mainly of household and kitchen furniture.

The hogs el aimed- in this action are eighty in number, consisting of hogs’ of different classes, all of which, sc far as it could be1 gathered from the account of sales,- were sold together, and not in separate lots nor by weight. The sheriff was examined,> as to the manner in which the sale of the hogs was conducted, and was unable to state whether they they were sold all together or in separate lots.

The defendant’s counsel insisted, *first,*that there was no evidence of a gift from the father to lheson;-seci>7Hiiy, that* as the plaintiff had declared for the conversion of the property only, the question ,whether the defendant had secretly retained the title to the property, with a knowledge th-af his son was contracting debt-s upon the faith- of that property,- or whether he had fraudulently given to his son a' false credit and thereby deceived and defrauded creditors or purchasers, did not arise. But supposing that question-to arise upon the pleadings, he then insisted there was no evidence of such a fraud; *thirdly\*that if the jury believed from the evidence, that the entire lot of hogs was put up together, ,t-he purchaser acquired no title by virtue of the sale.

As to the *first*point, the Court instructed the jury, that i-f they believed the evidence of William C. Skinner, his father, the defendant,, never had given him the property in controversy. The after declarations of the defendant- did- not, in law, amount to a gift; and they were only important as they might assist them tóa satisfactory conclusion upon another part of the case.

As to fhe *s'econd*poini made i:n- the defetfe'e, the jury were *170instructed, that, if they believed the testimony of the plaintiff, he had made out a *prima facie*case of title in himself — that the defendant controverted that title, upon the ground that the property belonged to him, and that it was perfectly competent for the plaintiff to shew, if he could, that the title set up by the defendant was one the law would not tolerate, or that it was contaminated by fraud — that it was in coming to a decision upon this part of the case, their attention had been drawn to the declarations and acts ot the de» fendant, subsequent to his putting his son in possession. They were further instructed, that, when a father settled his son off to himself, putting him in the possession of property, which passed by delivery, and the son obtained *credit*upon the faith of that property with the knowledge of the father, who takes no steps to correct the mistake, but suffers his son to-go on,, in so obtaining a false credit, as against a creditor so trusting, the son, believing the property to be his, the father would"not be permitted to set up his title — that, if they were satisfied from the testimony that William C. Skinner did obtain credit upon ihe faith of this property and that was known to the defendant, and he made no effort to correct the mistake, he now comes too late to. say the property is his, and not *William’s*— but *to*enable the plaintiff to avail himself of this principle, they must be satisfied from the evidence, that the debt, upon which the judgment was obtained and under which he claims, was contracted with William C. Skinner upon the faith of this property.

As to the *third*point, the Court instructed the jury that if they found a verdict for the plaintiff, he was entitled to the value of the hogs, as well as of the cattle; that the objection was one, of which no one could take advantage, but the defendant in the execution, or some one claiming'under him, or by a creditor of his — that the defendant was not before them in either capacity.

The jury found a verdict for the plaintiff, assessing in his damages the value of the hogs as well as of the cattle, claimed in the declaration. A new trial having been moved *171for find refused, and judgment rendered pursuant to the ver-diet, the defendant appealed.

*Kinney*and *Iredell*for the plaintiff.

*A. Moore*for the defendant.

Ruffin, C. 3.

The opinion of t.he court is, that upon the defendant’s oivn evidence there is a legal presumption of a gift to his son of the cattle and hogs in ' controversy.— No one can hesitate as to the true nature of the transaction between the defendant and his son, who knows any thing of the ordinary feelings and conduct of parents towards their sons, when como to man’s estate, and will look at what took place between thesé persons. It is preposterous to call a young gentleman his father’s overseer, who, upon returning home after completing *his*education, is put by a wealthy father into possession of a fine estate, properly stocked with slaves, and with the usual supplies of the various kinds of cattle and provisions, which, in conversations with.his friends and in transactions of business, the father calls his son’s, and with which the father does not interfere for nearly four years. On the contrary, during all that period, the sou acts in the management of the estate and in .the use of every thing made or being on it, as if they were his own ; disposing of all the crops and profits, and they, too, were of great value, at his own will and to his own use. It is true, the land and slaves did not become his; because they do not pass but by deed or writing. But before the act of ISIS the slaves would have been the son’s property; and even since that act, if young Mr. Skinner had remained in possession of them, until his father’s death, intestate, they would have been his, as an advancement, from the beginning. *Stallings*v *Stallings,*1 Dev. Eq. 298. It was among our earliest reported adjudications, that if, when a child went to house-keeping, a parent put a slave or other chattel into the child’s possession, the property was to be deemed in the possessor. The soundness of the principle consists in its certain conformity to the intentions of almost all men under *172circumstances, and by its necessity, as a protection *to*in bestowing care and labor on what cannot be ta- ° ken from them, and as a protection also to persons dealing w¡tjj ([ie children. In *Farrel*v *Perry,*1 Hay. 2, Judge Williams laid down the rule, that putting a chattel into a child’s possession is a gift in law, unless the contrary be proven ; and one of the reasons for it was, that otherwise creditors might be drawn in by false appearances. The same reasoning is given more at large in the subsequent case of *Carter*v *Rutland,*1 Hay. 97; where it is said, that when the possession remains with the child for a considerable time, it will be necessary for the father to prove very clearly, that it was expressly and notoriously understood not to be a gift; and, further, that the peace of families and the security of creditors were greatly concerned in the law being thus settled.

To no case could those reasons be more applicable than to the present. The only thing that is supposed to qualify the legal inference from the sou’s possession, that there was a gift, is, that, when the father put *the son*info possession and gave him half the crop then growing, he added, “ and he would give him the property, if he found he knew how to manage it, and conducted himself properly.” But that does not repel, but rather fortifies, the legal presumption, that both the father and son, as well as the rest of (he world, considered *the*crops and *the*various kinds *of stock,*except the slaves, the property of the son. It is expressly stated, that the son made what use of the crops he thought proper, and appropriated them to his own use. That was for three or four years ; and during the same time the stocks also remained in his possession, without any complaint of his sons conduct or claim of property by the father, baton the contrary, with repeated declarations, that he had given all that property to his son, aud that it was liable to his debts. How can it be pretended to the contrary? A father may lend his son the use of land and negroes ; but who can suppose, that any one would ever think of borrowing for four years a stock of sheep, hags and cows, with a view ef *173returning the same specifically, or accounting for the crease *1*Nothing of the kind was contemplated in this case; for the son must have killed the original stock or most oí it ior sale or consumption, and bred more upon his own provisions and with his own care. The discovery of the son’s embarrassments induced the defendant to resume the possession of the land and negroes, and tempted him also to claim again the other chattels, as being in some sort appurtenant to the plantation. But, until that discovery, all parties regarded them as an advancement to the son, and, therefore, as his property; and although the land and negroes might be resumed, the other chattels could not, to the prejudice of the son and his creditors.

In our opinion, therefore, the jury ought to have been instructed that the property was in the son, and consequently passed to the plaintiff by the Sheriff’s sale.

That conclusion renders it perhaps, unnecessary to consider, whether the subsequent observations to the jury were correct or not; since, even if they be erroneous, the verdict being right in point of law, upon the whole case, ought not to be disturbed. *Atkinson*v Clark, 3 Dev. 171. Yet, as we do not concur in those observations, and the contrary might be inferred from our silence, it seems to be incumbent on us to state the opinion entertained by the court.

The learned Judge, upon the assumption that there had been no gift, gave it a? his opinion, that, if the defendant knew his son was obtaining credit upon the faith of this property and took no steps to correct the mistake, but suffered his son to go on in obtaining a false credit, the lather would not be permitted to set up his title against the plaintiff;. provided, however, the debt, ior which the sale to the plaintiff was made, was in fact contracted on the faith of this property. For imposition on particular creditors by false representations of the son’s credit, the defendant might be made liable in a proper action. But even an express fraud of that kind would not work a change of property, so as to render what was really the property of the father subject to an exe_ *174cution against the son. If this was a loan and not a gift to the son, we think the defendant would have been entitled to a verdict. In our opinion, indeed, the law is clear, that it was a gift. But that is noton the ground of actual decep-ion on particular persons, as to whom, and not as to others, it is to. be deemed the son’s property. The rule rests on the tendency to deceive the world, arising out of a long unqualified possession of chattels derived from a father by a child on settling in life. To counteract that tendency, as a general mischief, is one among several sufficient reasons for the presumption of a gift, where it does not appear that it was expressly a loan. If obtaining false credit with particular persons, on the faith of property in the son’s possession; would make a *quasi estoppel*on the father against claiming it, the cases of express loans, and of slaves even, would be within the rule ; as, we suppose, they unquestionably are not. Our view is, that a possession ofachattel by the child under the father, not expressly as a loan, is evidence in law¡ that there was really a gift — as is known to be the actual intent of the parent in a vast majority of the instances,- in which a child receives such things from a parent.

If the property was in the son, the defendant is not concerned whether the sheriff conducted the-rale properly or not. The son, and those claiming under him, can alone make the objection.

Ter Cprxajj-, Judgment affirmed.