#### *Mary A. Dillard*v. *William Philson.*

The possession of the Ordinary, as administrator, *ex officio,*of a derelict estate, and the subsequent possession of the same estate by the beneficiary under the will of the testator, is the same possession, and may be united to complete the statutory bar to an action of trover to recover the value of certain slaves of the estate, alleged to have been given by the testator in his lifetime.

*Before*Withers, J. *at*Laurens, March, 1850.

This was an action in trover, whereby the plaintiff sought to recover the value of a family of negroes, and their hire.

The claim was against the legatee of one Alexander Phil-son, and was founded upon an alleged gift by the testator in his lifetime, to wit: — in August, 1841, before his death, in November of the same year.'

The pleas were the general issue and the statute of limitations.

The following is the state of facts out of which arises the exception to the judgment of the Circuit Judge, which was, that if the defendant’s proof was satisfactory, touching the birth of the plaintiff, the statute of limitations barred her action. Upon that supposition, if the statute applied to the case at all, the plaintiff was clearly barred.

Alexander Philson died in November, 1841. He bequeathed and devised all the residue of his personal and real estate to the eldest son of his cousin. Robert Philson, of Pennsylvania, for life, with remainder, on the condition of his residence ori his estate here; and if he failed to comply with that condition, then to his eldest brother, with the like estate and limitation, and on the same condition. Mr. Watts, the Ordi nary of Laurens district, took possession of the testator’s estate, and the negroes in question, as a part of it, and carried on the planting interest as administrator, *ex*officio, of derelict estate, during the years of 1842, ’43 and ’44, employing an overseer. He hired the plantation in 1845, and for that year, to the plaintiff’s mother, and all the negroes, except a very few; she executing notes for the hire with the present plaintiff in question. All this time, the negroes in question were *214held by the Ordinary, as administrator, *ex*officio, and up to the time that defendant established, to the satisfaction of the Court of Equity, after a long contest there, his identity as the legatee and devisee of Alexander Philson — which was sometime in 1846. At that time, the Ordinary delivered the ne-groes now claimed by the plaintiff to the defendant, as the beneficiary under the will of Alexander Philson, and he has had possession of them from that time to this. The question raised for plaintiff, to rebut the plea of the statute of limitations, and now renewed in the grounds of appeal, was, whether the possession of the Ordinary, and of the defendant, was the same continuous possession, and could be united to complete the statutory period. His Honor held that it was the same possession, and made the statute apply, if the proof warranted the foundation for it, as establishing the full age of plaintiff in 1843.

The plaintiff moved the Court of Appeals for a new trial, on the following grounds, to wit.

1. Because his Honor, the presiding Judge, erred in charging the jury that the possession of the defendant and that of the Ordinary could be connected, so as to constitute a pos-sessory title, and a bar to the action.

2. Because the defendant, not having had possession of the slaves four years before the commencement of the action, had acquired no title to them, and could not claim them by adverse possession.

*Irby, Henderson and Perry,*for the motion.

*Young and Sullivan,*contra.

*Curia, per*Frost, J.

By the act of 1712, actions of tro-ver, &c. “shall be commenced and sued within four years next after the cause of such actions and suits; and not after.” The gist of the action of trover is the conversion. If the negroes in dispute were the plaintiff’s, by the gift of Alexander Philson, the Ordinary of Laurens district was guilty of a conversion, when, as administrator, he took possession, as a part of the personal estate of Alexander Phil-son. The plaintiff’s cause of action then accrued. The plaintiff was then a minor; but this action was not commenced against the defendant, until more than four years after the conversion, and after the plaintiff had attained her full age. This period of time covered the possession both of the Ordinary and of the defendant. Neither had possession for the statutory term.

The general rule is that, directly a cause of action is complete, so that the plaintiff may bring his action thereon, (neither the plaintiff nor the defendant being, at the time, under any disability) the statute begins to run; and when once *215it has begun to run, no subsequent disability will suspend its operation. If either plaintiff or defendant be under disability when the cause of action accrues, the statute begins to run as soon as it is removed, in the same manner as if it had never existed. But a difference must be noticed between the application of the statute to cases of contract and of tort. The period of limitation to an action on a contract is computed from the breach, although after the breach, the demand of the creditor may be' assigned, or the personal liability of the debtor be devolved on another; so as that, between the immediate parties to the suit, the right of action may not have existed four years before it was commenced. Thus, in an action by the executor of the creditor, or by his assignee, by contract, or by bankruptcy or insolvency, ¿gainst the debt- or, the statutory period is computed from the time when an action accrued to the testator or assignor; and not from the time of testator’s death, or of the assignment. The same rule applies to an action by the creditor against the executor or assignee of a bankrupt or insolvent debtor. The liability of the parties to the contract is inseparable from it; and if the action is not immediately between them, the right and liability of other parties, in an action on the contract, must arise from their privity with one or both of the original contracting parties. By whomsoever the action may be brought, the cause of action is one and the same. An action for a tort arises when the injury is committed. There is no privity between tort-feasers. If several are guilty, an action accrues against each, at the time of his particular wrong. The wrong and injury of another cannot, under the statute of limitations, or otherwise, give any protection to the defendant; unless, indeed, by lapse of time, the plaintiff’s right of action, with respect to the subject of the injury, has been barred against a prior tort-feasor, who may thus, by force of the statute, have divested the plaintiff’s title. Accordingly, in an action for the recovery of land, the defendant cannot maintain the plea of the statute, by uniting his possession with that of a prior trespasser, and thus refer the accrual of the plaintiff’s right of action against himself to the time of the commission of the previous trespass. But if the possession is continued, without any new entry, as between ancestor and heir, when, by operation of law, the heir is in of his ancestor’s possession; on a plea of the statute, by the heir, against an action for the recovery of the land, his session may be united with that of his ancestor; and the time, against the plaintiff, is computed from the entry of the nPTPBnñBt^'? q

In *Beadle*v. *Hunter*& *Garrett,*it was decided that a vendee cannot unite his possession with that of his vendor, to complete the statutory term, in an action of trover for slaves. That decision was made in conformity with the *216general rule. It is relied on, as decisive of the motion in this case. But this case is more analogous to an action to recover land from one in possession by descent. It is plain that the relation of an executor to a legatee is not that of vendor and vendee, or of independent tort-feasors. The legatee claims by the gift of the testator. The will is the evidence of his title against all persons, except the executor.. The legal title to the testator’s personal property is, at his death, vested in his executor, because that is necessary, as well for the payment of debts, as the execution of the will. Debts must be satisfied before legacies; and, by insufficiency of assets, some of the legacies may fail. When these contingencies are obviated by administration, the title of the legatee is perfected by the assent of the executor. This assent, if then refused, may be compelled in the proper court.— When it is given or enforced, it has relation back to the death of his testator. The title of the legatee, which was, before, inchoate, becomes complete under the will. If he should die before assent, the legacy is transmissible to his personal representatives. The title of the legatee, then, is not derived from the executor. The assent of the executor is in the nature of the execution of a power. The title to the property bequeathed is not transferred by his assent. The executor’s legal title to a specific legacy and right of possession are conditional only, and are determinable on the satisfaction of debts and preferred legacies. When these conditions are performed, the title of the legatee takes effect by the will. Yet, before the executor’s assent, such privity of title and possession exists between him and the legatee, that by a recovery against the executor, or by adverse possession against him, for four years, the legatee is barred. This clearly distinguishes the case of executor and legatee, from that of independent tort-feasors. By four years adverse possession against the executor, the plaintiff would have acquired a title to the slaves in dispute, against the defendant; or by a recovery against the executor, would have established, against the defendant, the alleged parol gift. The plaintiff had, in effect, a right of action against the defendant, during the period when she might have sued the executor; and as the plaintiff might have pleaded, in bar of an action, by the defendant against her, for the recovery of the slaves, a statutory possession against the executor, it is just and equal that the defendant should protect his title by uniting his possession with that of the executor, in bar of the plaintiff’s action.

The motion is dismissed.

Evans, Wardlaw and Withers, JJ. concurred.

*Motion refused.*