#### *John W. Hall vs. John M. Timmons.*

Where a minor knows of his title to property and permits another to purchase it without stating his title, he will be barred by the fraud from recovering the property from the purchaser; *semble.*

A party who claims that he is exempt from the operation of the statute of limitations by reason of his disability, is bound to prove it strictly.

Bill for the specific delivery of a slave, filed on the 26th April, 1842. Defendant had had adverse possession of the slave for ten years. Plaintiff’s father testified that plaintiff was about fifteen years of age in February, 1832, *Held,*that the bill was barred by the statute of limitations.

*Before*DuNkin, Ch., *at*Darlington,

*February,*1844.

*The Chancellor.*This was a bill for the specific delivery of a slave named Friday, and an account of his hire.

On the 20th of June, 1818, William Hall, of Duplin county, North Carolina, executed a deed of gift of Friday, described as *“*aged about one year,” to his grand-son, the complainant, and all the parties live in Duplin county.

In February, 1832, when the complainant, according to his father’s testimony, was about fifteen years of age, Thomas P. Hall employed the witnéss, McGowen, to carry Friday into South Carolina and sell him. He furnished him with a bill of sale, and the complainant accompanied him to Darlington village. Friday was sold to Pleasant R. Gee. The complainant was either present at the sale, or was in the village. McGowen paid the proceeds to Thomas P. Hall. On the 14th March, 1832, Gee sold Friday to William Timmons, defendant’s intestate *■*and the possession was not interrupted until the 26th April, 1842.

On the part of the complainant, it was insisted, that his right was clearly established, and that he was a minor until within four years of the time of filing his bill. How far the non-age of the complainant would entitle him to the protection of the court, under the circumstances of this case, might present a question suffi- ' ciently embarrassing.

At the July term, 1818, the deed of gift to the complainant was acknowledged in court, and was recorded, in the proper office of Duplin county, on the 15th February, 1819. The complainant and the negro were brought up together. When they were both *121about fifteen years of age, complainant accompanied the agent of his father to Darlington, in South Carolina, where the negro was sold. There can be no doubt that he was aware of the sale, and as little that he did not object to it. If the complainant was then aware of his title, his minority would not protect him from preclusion to interpose any claim to the property in the possession of the vendee. Mr. Sugdensays, (Sug. on Tend. 522) “if a person having a right to an estate, permit or encourage a purchaser to buy it of another, the purchaser shall hold it against the person who has the right, although *covert*or *under*age.” Among the authorities cited is *Watts*v.s. Creswell, 9 Tin. 415, where a tenant for life borrowed money, and his son, who was next in remainder, and an infant, was a witness to the mortgage deed, and the court relied on the ground of the fraud of the infant, by not giving notice to the mortgagee of his title. “ That certainly” (says Sir Thomas Plumer in *Cory*vs. *Gertcken,*2 Mad. R. 367) “was a very strong case ; for the young man did not Jmow, but had only heard, of the settlement under which his title arose.” In *Cecil*vs. *Lord*Salisbury, 2 Tern. 224, an infant was held bound by an offer made by him in his answer, whereby the other side were delayed, the infant not having immediately after his coming of age, applied to the court to retract his offer and amend his answer.

It is not averred in the bill that the complainant had recently come to a knowledge of his title, or that he did not know of it at the time of the sale to P. R. Gee. He does aver “ that for several years, he was in ignorance as to where the said negro was taken, but eventually found out, accidentally, where the negro was, when he immediately proceeded to Darlington district, in the State of South Carolina, and demanded the negro.”

This narration appears to the court entirely inconsistent with the facts proved. The negro remained in the same district and neighborhood to which he had accompanied him, and where he had left him.

On the merits, the court would feel great difficulty in giving the complainant any aid. But the defendant has been for ten years in possession of the negro. The suit was instituted on the 26th of April, 1842. It is said that until within four years of that date, the complainant was a minor. The party insisting upon a disability or exemption, is bound to prove it strictly. The complainant’s father testified that at the time of the sale, in February, 1832, the complainant “ was about fifteen years of age.” *122According to this, in February, 1838, he was about twenty-one years of age, and the complainant was barred in February, 1842. Some testimony was offered as to the contents of a family record, by which it would seem that the complainant was not of age till July, 1838; but this was objected to, as not the best evidence, and the court so ruled.

It is ordered and decreed that the bill be dismissed.

The complainant appealed, and now moved that the decree be reversed, on the grounds :

1. Because the title of the complainant to the slave' in question was clearly proved, and there was no such evidence of fraud on his part, in the sale to P. R. Gee, as would prevent his recovery.

2. Because it was in evidence that complainant demanded the slave in 1841, and then had temporary possession of him; and there was no such acquiesence in the sale as should prevent the recovery.

3. Because complainant proved, by competent and sufficient evidence, that he was not twenty-one years old four years before this suit was instituted, and therefore his right to recover was not barred by the statute of limitations, and the evidence relied on to prove that he was so barred, was insufficient for that purpose.

*Harllee,*for the motion.

*Dargan,*contra.

Curia, *per*Dunkin, Oh.

This court is satisfied with the decree, and it might be sufficient to affirm it. But it was argued in this Court that the plea of the statute had not been formally interposed. No such suggestion was made in the circuit court. The principal part of the testimony, as well as the argument, was in reference to the bar of the statute. There is, besides, not only no such ground of appeal from the decree, but the third ground of appeal assumes that the statute was well pleaded, and avers that the testimony on the part of the complainant withdrew the case from the bar of the statute; and the parties are not now agreed whether the statute was or was not formally pleaded.

The appeal is dismissed.

Johnson, Harper and Johnston, 00, concurred.