#### CHARLES HAMLIN v. JOSEPH J. ALSTON.

Where one, upon the marriage of his daughter, made a parol gift of slaves to her husband, who died, leaving two infant daughters, and appointed the dqnor executor of his will, and guardian of his children, to whom he ■ bequeathed the *slaves*— It *was held,*that the donor might, under the act of 1806, *{Rev. ch.*701,) resume the possession of them, although he had proved the will, hired them out, as guardian, during the minority of the legatees, and upon their marriage had procured a division to be made, and delivered the share of each in severalty.

This was an action of petinue for a slave. Plea, non detinet. On the trial before Donnell, Judge, at Halifax, on the Fall Circuit of 1834, the jury returned a verdict for the plaintiff, subject to the opinion of the Court upon the following facts.

In April, 1814, John B. Mebane, of Chatham, was in possession of this slave, and several others, claiming, holding and using them as his own, and so continued until his death, which took place in the year 1820. ' In July of that year he made his will, and thereby devised as follows:— “I give and bequeath to my two daughters, Cornelia and Martha, and their heirs forever, the following property, to be equally divided between them, whenever either of them shall marry, or come to lawful age, viz. all my land, with its appurtenances, the whole of my negroes, wilh their increase, until that time;” and thereof he appointed the defendant, his father-in-law, and John Mebane, his father, executors, and guardians to his children. This will was proved by the defendant and John Mebane, at the August Session, 1820, of Chatham County Court; and they immediately, in their character of executors, took all the slaves abovementioned into their possession, and hired them out every year, until the year 1832; first, as executors, and afterwards as guardians of the children.

In the year 1831, the plaintiff intermarried with Cornelia, one of the children of John B. Mebane, mentioned in his will; and after the expiration of the time for which the negroes were then hired out, viz. in January, 1832, three persons were selected by the executors and the plaintiaff, to *480make a division of the slaves of which John B. Mebane died possessed, together with their increase. A division was made accordingly, and the defendant being present thereat, he delivered to the plaintiff, in right of his wife, one moiety of them, including the slave in dispute, as his property under the will; and the plaintiff accepted them, took possession of them, and retained them until some time in the following year, when the defendant took from the plaintiff several of the slaves, and among them that mentioned in the writ, and has ever since refused to return them to this plaintiff. Before the intermarriage of John B. Mebane with the daughter of the defendant, the slave was the property, and in possession of the defendant; and, upon the said marriage, was, with several others, sent by the defendant to his son-in-law, but no written transfer of them to him was executed by the defendant. In the inventory of the estate of John B. Mebane, returned by the defendant and his co-executor, these slaves were not included, and the defendant had, upon the death of his grand-daughter Cornelia, without issue, reclaimed them, contending they were his property.

Upon these facts, his Honor set the verdict aside, and directed a nonsuit to be entered; and the plaintiff appealed.

*Badger*for the plaintiff.

*Devereux*and *Waddell*for the defendant.

Ruffin, Chief Justice.

— The hardship of this case has caused the Court to hesitate in forming an opinion, and to be reluctant to pronounce it. It presents, in a strong light, some of the inconveniences and mischiefs that may arise out of the statute, which requires gifts of slaves to be in writing; and tends to the conviction, that perhaps the better policy would be to make the gift of a slave complete by delivering to a child, unless a trust be reserved, or the bailment be manifested by writing. But after anxious consideration, we have not been able to raise a doubt of the soundness of the law, as held in the Superior Court. The argument for an estoppel is inconsistent with the act *481of 1806, *(Rev. ch.*701.) That is a statute of frauds; so expressed in its very first words, and so declared in *Palmer*v. *Faucett,*2 Dev. Rep. 240, and several other cases. Its purpose is to protect a supposed donor from any pretended gift, proved by witnesses, or to be inferred from any other act or thing, other than those mentioned in the act itself. They are two only: a gift in writing; and a delivery to a child, who remains in possession at the death of the parent!, intestate. The words are negative; “ that no gift shall be good, unless, &c.and therefore those means are indispensable. There is no case under the statute 29th Car. II. in which the want of the ceremonies required by it has been supplied by any thing else. The design of the statute is to exclude all such evidence- of the contract; and, therefore, in its nature, it avoids any thing which, as an estop-pel, might defeat it. There can be no estoppel in a case' of fraud, for the law avoids-the-act which would otherwise create it.

It is not necessary to give an opinion, whether the acts-of the defendant, in the- character of executor of Mr. Mebane’s will, and as guardian of his children, could havecreated, in law, any temporary estoppel, by force of which’ the defendant was bound to surrender the possession of the-slaves to his wards, at their arrival at age. If they could,, it ceased when the plaintiff-took the slaves-into his owm possession. In the absence of a written donation, we are aware of nothing that can- permanently bar a donor, but an adverse possession, of sufficient duration to be protected by the statute of limitations, or an adjudication against him in an action for the slave.- Such an adjudication would conclude, not because it established a gift in particular, but, generally, that the title W’as not in him.

The statute of limitations has no operation in this case. The possession of the plaintiff was not continued for three years' after he demanded it from the defendant on a claim of right, and acquired it upon the division. The defendant cannot be barred by his own possession. If, as argued, he held *as*executor, then he held as his testator did, namely, as his own bailee, which is absurd. The truth is, the defendant made a parol gift, which was void. He then *482made a second to the plaintiff, which is likewise void. The argument is, in effect, that he made an intermediategift to himself, and Mr. Mebane, the grandfather, as co-executors, which precludes him from disputing, the others-. The1 answer is, that this third is also by parol, and therefore void, like the other two. It cannot be held otherwise without repealing the statute, and we are therefore obliged to affirm the judgment.-

Per Curiam. • Judgment affirmed.-