#### *The executor and devisees of William Edings vs. The administrators of Benjamin Whaley and others.*

Where a parent, upon the marriage of his daughter, puts'her in possession of slaves, or other chattels, without reserving the right to reclaim, or otherwise qualifying the possession, an intention to give will be presumed, and the gift perfected by the act of delivery.

As to real estate, it seems that an intention to give will never be implied from the mere naked possession with the assent oí the parent.

Where a bill was filed to recover possession of a plantation and slaves, with an account of the profits, and, upon the suggestion of the court that an issue at law be applied for to try the title to the plantation, an action of trespass to try *titles*was brought, and a verdict, without damages, rendered for the plaintiffs, which, on appeal by the defendants to the law Court of Appeals, was confirmed. Held, (1) that the decision at law was conclusive in this court; (2) that the complainants, being entitled to the common law writ of *habere jadas possessionem,*were not entitled to the aid of this court in obtaining possession; (3) that having neglected to claim damages at law, they were not entitled to an account of the mesne profits.

The bill states that William Edings, by his will, bearing date *30223d May, 1834, gave three plantations on Edisto to his widow for life, and after her death to his son John Evans Edings fox-life, with remainder to his issue living at the time of his death that should attain the age of 21 years, or dying before 21 should leave children that should live till such *time as the*pai’ent would have attained 21; to be divided *per*stirpes; and in case of the failure of such issue to testator's right heirs. To his grand-sons, William James Whaley and Benjamin Seabrook Whaley, his plantations, Slann’s Island and Chehaw, and all the negroes and stock thereon belonging to testator, for life, with remainder to their issue, on the same terms as in the devise to the issue of his son John Evans Edings’. To his daughter Sarah Chisolm, Indian Field and the slaves and stock thereon, for life, with like limitation. To his daughter Mary Fripp, Campbell’s and Archfield, with the slaves, (fee., for life, with like limitation. That the complainants, Georgé Chisolm and John A. Fripp, two of the executors therein named^ proved the said will, and are willing to execute the trusts thereof. But they cannot execute the will as to the devise to William James Wha-ley and Benjamin Seabrook Whaley, as they do not know what negroes, stock, (fee., on Slann’s Island pass by the said will to the devisees. That Benjamin Whaley married the testator’s daughter Eliza on the 30th March, 1819, and soon after, the testator put Benjamin Whaley in possession of the plantation on Slann’s Island, and all the negroes, stock, (fee., on the plantation, but made him no deed, and they believe *he never intended to*give the same to Benjamin Whaley, nor to dispose of the same, except according to his last will.

That about the 26th June, 1823, Eliza Whaley died, leaving two sons, the said William James Whaley and Benjamin Sea-brook Whaley. That Benjamin Whaley married again, and about 11th March, 1832, died intestate, leaving his widow and three other sons, Edward, Joseph, and Francis,, the issue of his last marriage. That administration of his estate was committed to Edward Whaley.and Joseph Whaley, who are in possession of Slann’s Island and negroes, and claim the same as the estate of Benjamin Whaley. That complainant George Chisolm, on 14th January, 1823, married with Sarah the testator’s daughter, and soon after, by testator’s direction, took possession of Indian Field and seventeen negroes, and held the same from that *time.*That Sarah Chisolm died 19th October, 1834, leaving issue. That complainant John A. Fripp, on the 12th February, 1822, *303married with testator’s daughter Mary, and soon after, by testator’s directions, took possession of Campbell’s and the negroes thereon, and held the same from that time. That they have inventoried the personal property on these plantations as part of testator’s estate, but they were in fact held in the same manner as Benjamin Whaley held Slann’s Island and negroes; and if the' property in the last mentioned plantation and negroes is adjudged to be in Benjamin Whaley or his heirs, complainants claim the benefit of the same rule, as the circumstances of their possession were in all respects similar to the occupation of Benjamin Whaley, and the testator intended to place, and did place, the three daughters on the same footing. Complainants pray for the directions of the court and that the trusts of his will may be executed. To this bill all parties having any interest were made defendants.

Edward Whaley and Joseph Whaley answered, claiming Slann’s Island and negroes as the proper estate of Benjamin Whaley. The Infants answered, submitting their rights. After-wards George Chisolm, one of the complainants, died, and the suit was renewed against his executor and heirs.

The cause came before his Honor Chancellor Johnson on the 3d June, 1840, when his Honor delivered the following judgment, on a motion made by the defendants Edward Whaley and Joseph Whaley to dismiss the bill.

The only question submitted to the consideration of the court, arises out of the following facts stated in the bill, and answers of the defendants interested in the matter. The complainants’ testator, who died in 1836, by his will, bearing date the 23d May, 1834, devised to his grand-sons William J. Whaley and Benjamin S. Whaley, amongst other things, his plantation on Slann’s Island, and all the negroes and stock thereon belonging to him, for life, with divers remainders over; and the bill states that these legatees, the said Wm. J. and Benj. S., were the issue of the testator’s daughter Eliza, who intermarried with their father Benjamin Whaley in March, 1819. That at or soon after the marriage, the testator delivered to his said daughter, or her husband, a slave called Rose, and at or about the same time put her said husband in possession of the plantation on Slann’s Island and about thirty slaves that were then settled and employed thereon, but made no deed to the said Benjamin Whaley for the said plantation or any of the negroes, and the complainants *304believe never meant to dispose of them finally or irrevocably, except by deed or by his last will and testament; and that the said plantation on Slann’s Island and the slaves referred to in the said will are the same of which the testator did put the said Benjamin Whaley in possession. The bill also states that the testator's said daughter Eliza died in 1823, leaving issue, the said devisees Benj. S. and William J. who were then and still are minors ; that the said Benjamin Whaley afterwards intermarried with Maria Ferdinand, by whom he had three sons, Edward, Joseph, and Francis, and died in 1832, leaving surviving him the said Maria and his said three sons, all of whom are now-minors, and are defendants in this suit; that from the time the said Benjamin Whaley was put in possession of the said plantation and negroes, he remained in the possession thereof until his death, and that since his death Joseph Whaley and Edward Whaley, his administrators, also defendants in this suit, and his said widow, have continued in the possession of the said plantation and slaves up to the time of filing the bill. The prayer of the bill is for an account, and that the trusts of the will may be declared, and for such other and further relief, (fee.

The defendants, Maria the widow, and Joseph Whaley and Edward Whaley, the administrators of Benjamin Whaley, have answered the bill fully, but do not materially deny the facts stated in the bill. They insist, however, that the testator’s putting Benjamin Whaley in possession of the slaves on his marriage with his daughter, and his subsequent possession of them, amount in law to a gift, and that the property in them vested absolutely in him; that from Benjamin Whaley’s long, quiet and uninterrupted possession of the plantation, and the defendants’ since his death, they are protected by the statute of limitations; and that both land and negroes are distributable between his widow and all his children, in the manner provided by the Act of distributions.

It is now, however, insisted on the part of these defendants, that conceding all the facts stated in the bill to be true, the court has not jurisdiction of the cause, and that as to them the bill ought to be dismissed.

1st. Because the complainant has a plain and adequate remedy at law for the recovery of the negroes, in an action of trover or detinue.

2nd. Because the devise of the land is directly to the testator’s grand-children, William J. and Benjamin S., who are not com*305plainants in this bill, and who moreover have a remedy at law, by the action of trespass to try titles, a matter in which complainant has no interest.

This objection admits therefore that Slann’s Island, and the slaves thereon, (at the time Benjamin Whaley went into possession,) belonged to the complainants’ testator ; and that he devised them to his grandsons William J. and Benjamin S. Whaley; and under the prayer for general relief, the complainant, the testator’s executor, asks that their possession may be decreed to be delivered to him, to enable him to execute the will of his testator ; and the only question is whether this court has jurisdiction of the matter.

In the infinite variety of the transactions of men, cases frequently arise in which the modes of proceeding in the common law courts do not furnish remedies suited to their particular justice. As organized here, these courts have no power to compel a discovery, often necessary to the ascertainment of the truth — -they cannot in anticipation restrain the perpetration of a wrong, although if committed it might be irreperable- — they cannot enforce the specific performance of contracts, nor compel the specific delivery of chattels, without which the remedy would often prove inadequate, — with few exceptions, their whole remedial power consists in substituting money as an equivalent for a wrong done or right withheld; hence the jurisdiction of the Cou'rt of Chancery; the necessities of mankind required that the defects in the powers of the law courts should be supplied ; unless they had been, justice could not have been meted out according to the right of the matter, and it follows that generally this court will not entertain a cause when the party complaining has a full and complete remedy at law.

Both lands and slaves are the subject of controversy here, and generally it is true that this court will not entertain1 a cause in which the titles to land are directly involved, because the writ of *habere facias possessionem*of the law courts is a perfect remedy ; and yet, in a few instances, causes in which the title to lands are incidentally involved are entertained. Injunctions to stay waste, and to restrain the continuation of a trespass, are familiar examples.

In England the Courts of Chancery disclaim the power to compel the specific delivery of personal chattels, on the ground that the courts of law furnish a remedy by an action for damages for their conversion and detention, and the principle has not *306been departed from but in a few and very peculiar instances. In this, our own courts followed the English courts for a long time, I think with too much servility, not correctly distinguishing between the subject to which the principle is applied there and here. In England there are no slaves ; personal chattels there consist for the most part of things incapable of reciprocal attachments, and are valued only on account of the use to which they are applied, and may be replaced by an equivalent in money ; not so with regard to slaves. Their moral qualities, which money cannot buy, enter largely into their value, and who in this country has not witnessed how painful is the necessary or compulsory separation between the master and the slave? more intensely felt by the slave, when the government has been such as characterises the great mass of slave owners. Is there any thing in a family picture, or a Pusey Horn, however precious they may be, to compare with the moral *relations between*the master and the slave?

These considerations, doubtless, induced our courts slowly and cautiously to carve out a new exception in the case of slaves; at first it seems to have been intended to confine it to body and house servants, such as were in some sort indispensable to the owner. *(¿Sorter vs.*Gordon, 2 Hill Oh. 121, is the sequel.) There the specific delivery of slaves was decreed, on the ground that they were brought up in the family, and I am prepared to leave the owner himself to judge, whether or not damages will compensate him for the loss of his slave.

A planter has a plantation well peopled with slaves, purchased if you please but yesterday. He has constructed houses for their accommodation. It is supplied with live stock, implements of husbandry, and every thing else necessary to successful planting. His employment and delight is to look over the rich prospect before him, and direct and superintend the whole. His neighbor enters upon him, and with a strong hand drives off his slaves in a body, and is he to be told that his remedy is at law, by an action of trover, where he will recover damages to be measured by their value, and their hire during the time the wrong doer has had *them in his*possession *1*will this remunerate him for his own loss of time and enjoyment — for the decay of his buildings and fences — for the profits arising from the cultivation of his fields, which are grown wild, — for the live stock which has perished for the want of the means of subsistence, or to prevent which, have been sold at a .sacrifice ? must *307he wait until the tardy process of the law shall put him in possession of funds to repeople his plantation, purchased perhaps at fifty or an hundred per cent, higher than the value at which his own were estimated ?

The testator here gives to his grandsons William J. and Benjamin S. his plantation on Slann’s Island, and all the negroes and stock thereon which, belonged to him. The effect of this is to invest his grandsons with the legal estate in the lands, and the complainant, his executor, with the legal estate in his ne-groes ; and there is no question that the complainants might recover the value of the negroes in trover, and the grandsons the land at law; but of what value would the land be without the slaves ? Lands are so abundant and cheap, tha,t almost every one is a land-holder. There may be no one to rent, and besides this, all know, in the hands of a tenant, if even one could be found, both the lands and improvements always suffer great deterioration. This is the case which I have before supposed, and if thg principle is correct, the complainant is entitled to the specific delivery of the slaves.

It is objected, however, that the title of the land is in the grandsons, and therefore the complainant is not entitled to the possession as executor. The legacy is of the land and the slaves, and live stock on it, and their principal practical value consists in their unity. The slaves and stock are as necessary to the plantation, as the impelling power is to a piece of machinery, and the testator never could have intended to separate them; that is deducible from the subject matter of the legacy — no one here buys a plantation for the purpose of leasing, nor field hands for the purpose of hiring them out: and it will not be supposed that the testator intended to put this legacy in a condition to render it less productive than the whole together might be made in the hands of a prudent man. I conclude, therefore, that he must have intended that his executor should have the possession and management of the plantation, with a view to the employment of the slaves. He never could have intended that the plantation should be abandoned. And the devisees being infants, the management of it must devolve on the executor, until they arrive at full age, or until his authority is superseded by the appointment of a guardian. *Mitchell vs. Richardson,*decreed in the Court of Appeals here, at February Term, 1840, is in point. He cannot maintain trespass to try titles at law, because, as before remarked, the legal estate is not in him, and his only remedy, if he has rights, is in this court.

*308The claims of the defendants to the land rest entirely on possession, and that question, although collateral to the point directly involved, was fully gone into in the argument, and I have made up something like a settled opinion, unfavorable to the claims of the defendants; but the practice of the court has usually been to direct an issue at law in all cases where the titles to land come in issue, and I am not disposed to depart from it now, and will lend a willing ear to an application from either of the parties for an issue at law, to decide the title between the devisees and the defendants.

• *It is ordered and*decreed, that the motion to dismiss the bill be dismissed.

In pursuance of the suggestion of the court, an action of trespass to try title for Slann’s Island, was brought by the devisees, William James Whaley and Benjamin Seabrook Whaley, against Joseph Whaley and Edward Whaley, who defended under the title of their intestate, and at May term, 1841, was tried before his Honor, Judge Earle, when the plaintiffs obtained a verdict; the defendants moved for a new trial, and upon the hearing of the appeal at Columbia, in May, 1843, the motion for a new trial was dismissed, and the judgment confirmed, (a)

The cause came on to be heard at Charleston, before his Hon- or Chancellor Dunkin, on 29th June, 1843, who pronounced the following decree.

The principal object of this bill is to recover possession of a plantation on Slann’s Island, and fourteen negroes, with an account of the profits.

The complainants claim under the will of William Edings, deceased, executed on the 23d May, 1834. The defendants rest their title on the possession of Benjamin Whaley, deceased, (under whom they hold,) from 1819 to March 1832, and on their own possession from that time until the death of William Ed-ings, in April, 1836. The original title of William Edings, anterior to 1819, is not questioned. The difficulty arises on the subsequent possession of Benjamin Whaley, and those claiming under him. The law under which the heirs of Benjamin Wha-ley claim, is thus noticed by Judge- Waties, delivering the judgment of the court in *Cholett vs.*Hart, 2 Bay, 160. “ The *great*object of the limitation Act, which was passed so long ago as the year 1712, and which has remained in force to the present *309day, with scarcely a single alteration, was to quiet the inhabitants of this State in the possession and quiet enjoyment of their estates both real and personal. This was deemed by our ancestors a matter of primary consideration, tending to give security and permanency to property of all kinds, and to prevent as much as possible, every species of litigation, so injurious to society.” “ The second and third clauses of the Act were intended to secure actual settlers in the possession of their lands, and hundreds of suits have been determined in this country in favor of possessory rights alone, against the clearest titles by grants, deeds, (fee. The fifth and sixth clauses of the Act were intended to give the like security to personal property of every kind, in the actual possession of our citizens, in the same manner as was afforded to the possessors of landed property; *five years possession completed the title to*land, and *four years*possession the *title to all kinds*of *chattels,*as no suit can be maintained for either without being commenced within the above periods.”

In *Coclcfield vs. Hudson,*2 Bay, 425, the court, setting aside a verdict in favor of a defendant, declare that “ four years peaceable possession of a negro or other chattel, by a person claiming it in his own right, will, under our limitation Act, give a title to the possessor, and bar any other person, however high his title may have been, from a recovery.” It cannot be doubted that precisely the same rule is applicable to the possession of lands, excluding only the period when the title is completed.

It will simplify the consideration of the case, and certainly do no injustice to the plaintiffs, by supposing that on the 1st March, 1832, William Edings the testator, had instituted proceedings against Benjamin Whaley the intestate, to recover possession of the plantation and negroes on Slann’s Island. The defendant resisted the action by proving a peaceable and uninterrupted possession by him of the lands and negroes, for twelve years prior to the institution of the *suit*— prima *facie,*according to the uniform decisions of this court, this gave him a complete title, afforded him a perfect protection against the plaintiff’s action. But it was competent for the plaintiff to defeat the effect of this possession by proving that he, the plaintiff, was a minor, was beyond seas, or that the possession of the defendant was as mortgagor, lessee, tenant, (fee. — that it was not in his own right, but in the right of the plaintiff — that it was fiduciary and not adverse. Such matter it was the privilege of the plaintiff to shew in order to bring his case within the exceptions of the statute, *310or to defeat the effect of the defendant’s possession. As in all other cases, the *onus*is on the paity insisting on the exception. It was proved by the witness, Cato Ash Beckett, that he was living in the family of William Edings in 1819, when Benjamin Whaley married his daughter. *“*That in January, 1820, he heard Edings tell Whaley to go and take possion of Slann’s Island and the negroes.” It was abundantly proved and not contradicted, that Whaley took possession, and held the property from that time until his death in March, 1832, exercising, during all the intermediate period, all the usual acts of ownership, such as selling the crops, paying taxes, (fee. The reply on the part of the plaintiffs is, and on the part of Mr. Eddings in 1832, might have been, this possession of Benjamin Whaley was under a *loan*from him, by which Whaley was bound to give up the land and negroes whenever Mr. Edings required it. It is here to be borne in mind, that Whaley’s defence has no reference to a gift or any other origin to his possession. He relies on his possession alone. The legal effect of that possession is to confer title. The plaintiff must prove that it was under a loan. It is not enough that Mr. Edings may have intended, in his own mind, to reserve a control over the property. The language of the court in *Byrd vs. Ward,*4 M‘C. 231, would apply with much stronger reason to this case. If the possession of the defendant was such as *prima facie*completed his title, “ no mental reservation” on the part of Mr. Edings, could defeat this legal consequence. “ There must ha ve been some *expres stipulation*at the time, *distinctly understood*by *both parties,*in order to give effect to such an intention. It is not a question what he *intended,*but what he *actually*did.’!

So in *MCluney vs. Lockhart,*4 M’C. 251, it was held that the *presumption*of a *gift*where a slave was sent to a married daughter twelve months after marriuge, and suffered to remain in her possession, can only be rebutted by “ an express stipulation,” that it was a *loan*and not a gift. The defendants here are entitled to the full benefit of this language. It is admitted that the silence of the party cannot confer title to the real estate. For ten years a mere mental reservation on the part of Mr. Ed-ings would have entitled him, both in law and conscience, to resume the possession of the plantation. It is only after the '‘peaceable and quiet possession of the estate,” for more than the statu-tary period, has conferred a right on the defendant *“*stronger” (in the terms of Judge Waties) than the clearest title by grants *311and deeds, that the' plaintiff is not permitted to impair this right in consequence of any mental reservation, or any condition not expressed, and distinctly understood by both parties.

It is not, perhaps, too much to say that from the period when Benjamin Whaley took possession in January, 1820, until his death in March, 1832, there is no evidence whatever that he held this property under a loan from Mr. Edings, except that which arises from the fact that he had married the daughter of Mr. Edings, and perhaps the negative proof, that Mr. Edings had executed to him no conveyance of land, or deed of gift of the ne-groes. The effect of such testimony has already been considered and determined in some adjudicated cases. The relative position of the parties (where personal property was involved,) has been repeatedly held to warrant a contrary presumption.

In *Brashears vs. Blassingame]*1 N. & M’C. 224, Mr. Justice Nott, delivering the judgment of the court, says *“*if a gift of property to a son or daughter, on their marriage (which may be literally considered in consideration of marriage,) to be taken back at any indefinite period of time, at the capricious and arbitrary will of a parent, can in any case be viewed as *a loan,*I certainly think it a kind of loan not much tobe encouraged.” And in *Hatton vs. Banks,*1 N. M’C. 223, he regards it “as questionable whether these pretended *loans*ought not *always*to be construed into *absolute gifts, whatever parol condition may be annexed to them.'1'1*

Then as to the plantation. The situation of the parties and the want of a conveyance, authorize, as it seems to the court, no other presumption than that of which they are proof, namely, that Whaley had no title under Mr. Edings. They no more prove a loan than a gift. It is perfectly consistent with both circumstances, that Mr. Edings may have originally intended to give the plantation to Mr. Whaley, and put him in possession of it, as he did of the negroes, without any condition or reservation. Whaley regarded the property as his own, and treated it as his own, and Mr. Edings intended, or was willing, that he should so regard and treat it.

As Mr. Justice Johnson says in *Teague vs. Griffin,*2 N. <fc M’C. 95. *“*The very delicate relationship which subsists between the father-in-law and the son-in-law, is a complete barrier to the latter’s making any demand upon him, as to the precise terms on which property is put into his possession.”

It is probable that neither party was ignorant that a convey-*312anee was necessary in a transfer of lands, and that Mr. Edings could not make a perfect title to Mr. Whaley, or the latter receive a perfect title from the former, in any other way. Although Mr. Edings originally intended a gift, and only postponed making a conveyance until he knew more of Mr. Whaley, or perhaps from the reluctance, not uncommon, to part with the muniments of title, although the property itself is given up, he is permitted by the law to continue in this condition of mind, and at any moment within ten years, to enter on the premises, and dispossess the defendant of that which he had so long held as his own. But when the ten years had expired, the legal rights of the parties were entirely changed. The law then vested a perfect title in Mr. Whaley, and prohibited the interruption or disturbance of his long continued possession, unless it could be shewn, not that Mr. Edings had executed to him 'no conveyance, or that he was his son-in-law, but that a possession which is presumed adverse, was in fact fiduciary — that the possession was not for himself, but foi Mr. Edings. The question would not be merely, whether he did not originally enter by the permission of Mr. Edings, (about which there was no doubt,) but whether he did not enter and hold for himself, and possess for himself, and not for another, for ten years prior to the institution of the suit. If Mr. Edings had called witnesses to prove that he freely gave the plantation to Mr. Whaley when he put him in possession, it is hardly necessary to say that the right of Mr. Edings to recover the land at any time within ten years, would have been just as perfect as if Mr. Whaley had been a mere intruder or trespasser. The only effect of proving a gift, would be to place beyond doubt the character of the possession. On this subject the Judge says, in *Sumner vs.*Murphy, 2 Hill, 491, “ it is true, it is a tenancy at will in its commencement, and 1 will add, until the time limited by the statute has run out; then it becomes a good and indefeasible title in law against the grantor. The occupant is in *possession*in his own right, and claiming it as his own ; and although this possession is permissive, that is, by the consent of the grantor, and may be. ended by him at any time he thinks proper so to do, provided it is before the time limited by the statute, yet after that time has run out, he cannot claim to defeat it because it commenced under him.” In that case, as well as in *Simmons vs. Parsons,*reported in the notes, it is said that adverse possession is not always a *hostile*possession to the title of him who claims against the occupant. It very often commences and is perfected under *313that very title, and derives its effect from it; “ adverse possession is actual occupation, or *pedis possessio, of.*land as one’s own.”

The title to personal property passes by delivery. In the case before cited, of *Byrd. vs. Ward,*it is. said “there must be some express stipulation at the time, distinctly understood by both parties,” in order to repel the presumption of a *gift.*The same rule, in the judgment of the court, should apply to the *possession of*lands. If the delivery of possession is not accompanied by some stipulation, distinctly understood by both parties, it should be presumed that he is holding possession for himself; and if that possession is continued without interruption for ten years, his title is perfected by the statute, and cannot be defeated by mere proof of the situation of the parties and the want of a convey-, anee.

It has been said that from 1820 till the death of Benjamin Whaley in 1832, there was no evidence of any act done, or declaration made, on the part of Mr. Edings, qualifying, in any manner, the character of the possession by Mr. Whaley. Of course, if the title of Whaley was complete prior to his death, the right of his heirs could not be affected by the subsequent declarations of Mr. Edings, even if such declaration was competent testimony. But it is quite clear that the will of Mr. Edings does not evince any consciousness of right to resume the possession of the property, to take back that with which he had already parted, but rather to direct the succession in the family of his son-in7law. This he perhaps always intended, and might have executed at any time, if such intention had been distinctly understood by Mr. Whaley, as well as himself. But the declarations of Mr. Whaley, during this period, (which were properly in evidence, *Hall vs. James,*3 McC. R. 222, *Martin vs. Simpson,*4 lb. 263,) clearly indicate the character of his possession. The witnesses *Beckett, Hanahan, Geo. W. Seabroolc, Jos. Whaley and W. Rice,*all concur on this subject, and prove, in the language of some of them, that he regarded and treated “the property of which Mr. Edings had put him in possession as *bona fide*his,” “as much his own as his property on Edisto Island,” (where he lived.)

After the death of Benjamin Whaley in March 1832, the ne-groes were appraised as part of his estate, and the plantation on Slann’s Island, and the negroes, were held by the defendants, and emplyed for the estate, without any notice or demand by *314Mr. Edings, who survived Mr. Whaley more than four years, and died in April, 1836.

It appears to the court, that according to settled adjudications, the right to the personal property cannot now be disputed, and the court would experience scarcely more difficulty in regard to the real estate, if some embarrassment were not interposed by the verdict of the jury. Some remarks are proper in reference to that matter.

It is not a verdict by which the heirs of Benjamin Whaley are necessarily concluded or affected. At the former hearing of this cause, the Chancellor iutimated a desire that an issue should be asked by one of the parties. It does not appear that this trial was had on any order for an issue, but the action seems to have been intended to answer that purpose. It is believed that no *other effect*was desired *from it*than if the issue had been directed by this court. On a motion for a new trial, the judges of the Court of Apeáis were divided in opinion, *three*being in favor of sustaining the verdict and *two*for granting a new trial.

Since that time several witnesses have been examined, one by the complainants and three by the defendants, whose testimony had not been previously heard. *Cato Ash Beckett*proved “that he was intimate with Benj. Whaley from a very early period ; that in 1819, at the time of Whaley’s first marriage, the witness resided in the family of Mr. Edings — was presént at the marriage with Miss Edings — knew that in 1820 Mr. Edings gave Whaley a plantation and negroes which he had bought in 1818 from Dr. Glover; he (Mr. Edings) planted it in 1819, and in 1820 gave possession of it to Mr. Whaley — does not know how many negroes there were, but thinks there were eight or ten workers. Mr. Whaley continued in the use and possession of the negroes up to his death; clothed them and paid taxes for them; he always spoke of the Slann’s Island place and of the negroes as his, just as he did of his plantation and negroes on Edisto. It was notorious throughout the Island that Mr. Whaley claimed the Slann’s Island place and the negroes as his own. He has no doubt but that Mr. Edings knew that Benj. Whaley claimed this place and the negroes as his own. In January, 1820, he heard Mr. Edings tell Whaley to go and take possession of Slann’s Island and the negroes ; never heard any thing more pass between Mr. Edings and Mr. Whaley about the land and negroes. The land and negroes were given at the same time and in the same way and same words. The impression *315made on witness’s mind when Edings told Whaley to go and take possession, was that Edings intended a gift to Whaley.”

It is perhaps not unwarrantable to say, that if this evidence had been adduced on the original trial, the judgment of the Appeal Court on the motion would have been different. The concurrence of Judge O’Neall was, avowedly, on the ground that “there was no proof whatever of a parol gift.”

Certainly it was very late to offer this testimoney — but no objection was offered or suggested on this score. On the contrary it was the manifest object of the parties to shut out no light which could be thrown on the subject. It may not be improper to add, that Mr. Beckett was known to the court as a person entitled to entire confidence, for intelligence and respectability.

It is not common, (and it ought not to be) to set aside or disregard the verdict of a Jury on a question of this character. It has been repeatedly done, however, both in England and this country. In *Poioe vs.*Ellerbe, determined some years since at Columbia, this court ordered a second trial at law, and ultimately went so far as to decree against two concurring verdicts.

Entertaining a strong conviction that this verdict is founded in error, the court can only decline to give the plaintiffs any advantage from it in this tribunal. So far as the bill seeks a delivery of the Slann’s Island plantation and the negroes, it is the opinion of the court that it should be dismissed, and it is so ordered and decreed.

The complainant and the devisees W. J. Whaley and B. S. Whaley, appealed, on the following grounds :

1. That the statute of limitations runs only in favor of adverse possession, and that the possession of Benjamin Whaley was not adverse to the testator.

2. That the possession of a person entering without any gift or adv'erse title, is a possession in support of the title of the true owner, and that a possession of land or negroes in such circumstances does not bar the true owner.

3. That the character of possession is determined by the circumstances in which the possession begins, and possession supports the right in which the party enters. And if there was any right in this case, it was in virtue of a gift to the testator’s daughter, and the possession could not confer on Benjamin Whaley a right hostile to his wife.

4. That no action accrued to William Edings till demand of the possession, and as no demand was proved, the statute did *316not run against William Edings either in respect of the land or negroes during his lifetime.

5. That as to the land, the right of the devisees was *res judi-cata*; and as the land and *negroes were*held together, the finding of the jury against the statute as to the land is conclusive as to the negroes also.

*Petigru, for the*appellants.

*Rice*and McCready, contra.

(a)

*Whaley vs.*Whaley, *1*Speers, 225.

*Curia, per*Johnson, Ch.

I concur entirely in the decree of the Circuit Court in relation to *the gift of*the negro slaves on the Slann’s Island plantation. The authorities cited, and they are all one way, shew conclusively, that if. a parent, upon the marriage of a daughter, puts her in possession of slaves or other chattels, without reserving the right to reclaim, or otherwise qualifying the possession, an intention to give will be presumed, and the gift perfected by the act of delivery. The presumption arises out of the moral obligation of a parent to provide suitably for his children, and the necessity for it is the more cogent upon their marriages, when they usually leave the parental roof and set out to provide for themselves. It is seen in the almost universal habit oí the country. No parent, who has the means and the will, ever permits a child to commence life on his own account, without aiding him in proportion to his means, and when nothing but an absolute gift is intended nothing but a delivery is necessary. If it is intended to qualify it, the parent ought to, and I think would, express it. He would not be so unjust to his child as to raise expectations with the secret intent of mortifying him by defeating them.

I concur also in. the order of the Circuit Court dismissing the bill as to the real estate, upon other grounds, however, than those relied on in the decree. The suggestion in the decree of the court of June, 1840, was that a feigned issue should be made and tried at law to determine the title to the real estate: but that was not followed up. The complainants brought an action of trespass to try titles, in the name of the devisees of their testator, and the jury found for them. The parties might have regarded that suit as a substitute for the feigned issue, and then an appeal would have lain directly to the Equity Circuit Court, but the defendants themselves, without any objection on the part of the complainants, thought proper to treat it as an action at law, and carried up an appeal to the Law Court of Appeals, where' the *317verdict was sustained, and that judgment is binding on this court *as res judicata.*No appeal lies from that court to this. It is binding, too, as authority upon the precise point raised here, for this court is not only bound, on general principles, but by; the express enactment of the legislature, to follow the decisions of the law courts.

It is said that the evidence in favor of the gift is stronger here than that offered in the law court, and might possibly have inffuenced that court to come to a different conclusion, and it is true that oíher witnesses have been examined and possibly some new facts have been elicited, but after all, the fact of the gift rests upon the fact stated by the witness Cato Ash Beckett, that in-January, 1820, he heard the complainants’ testator tell the defendants’ intestate, after the latter had married his daughter, “to go and take possession of Slann’s Island and the negroes,” and the subsequent possession of the defendants’ intestate, and that was the substance of the evidence before the law court. But I am satisfied to rest the case upon the ground of *res judicata.*

The complainants clearly have a right to the common law writ of *habere facias*possessionem, and do not require the aid of this court in obtaining possession of the land. But the jury have found no damages, and they insist that they are entitled to come here for an account of mesne profits. That would have followed as a matter of course if the case at law had been tried on an issue directed from the Court of Equity, but the proceedings at law were in form an action of trespass to try titles, and both parties thought proper to treat it as such. In that form of action the plaintiffs were entitled to recover the mesne profits in the form of damages, and having neglected to submit that matter to the jury, they cannot obtain relief in this court. It strikes me, too, that it was not a case for damages.

The gift of the land and negroes was at the same time and expressed in the same words, “go and take possession of Slann’s Island and the negroes,” and the complainants insist that as the land has been adjudged to belong to the devisees of the complainants’s testator, the negroes follow it as an incident. The case in *2 Dyer, 212,*establishes, I think very clearly, and as a general rule I should be disposed to follow it, that if lands and chattels be demised together, and a round sum be reserved as rent, if the lessor aliens the land before the expiration of the lease to,a stranger, he will be entitled to the whole sum reserved *318for rent, upon the principle that the land being the principal and most important matter, draws after it all incidents of less importance. It ought, perhaps, to depend on the character and value of the chattels, and the use to which they are applied, and it may well be doubted whether the principle would apply to slaves regarded as chattels, which, although in legal contemplation of less dignity and importance than lands, are for the most part of more value and importance, and constitute rather the principal than the incident. But the principle does not apply here. The decision of the law court is, that the lands belong to the devisees of the complainant’s testator, and this court have decided that the defendant’s intestate had an absolute property in the negroes as the gift of the former ; and as a further authority for the opinion of the court on this point, it may be here stated, that one of the negroes that belonged to the Siann’s Island plantation ran away from the defendants’s intestate after the death of his wife, the daughter of complainant’s testator, and took protection at the plantation of the latter, and Joseph Whaley testified, that at the request of the defendant’s intestate, he called on the complainant’s testator and inquired if he had any claim to her, and he replied no, and that he would order her off his plantation. A tenancy at will of the real estate and an absolute property in the slaves, are by no means incompatible.

But it may be asked, how can that be, when *the*lands and the slaves were given at the same time and in the same words ?

Every one knows, that slaves and other chattels may be trans-fered even by parol, and that real estate cannot except by deed, and that the terms of a deed or will in relation to real estate which would only give or grant a fee simple conditional at common law, would give an absolute and unconditional property in chattels.

There are numerous cases in our own courts, in which the possession of a child of real estates, under a parol gift from the parent, has been held to be adverse to the rights of the parent, but I apprehend that a gift of real estate never will be so implied from the naked possession *with the*assent of the parent. As before remarked, every one knows that the title to lands cannot be transfered but by deed, and when a parent suffers a child to take possession of his lands without a legal conveyance, the inference would seem to be that he did not intend to give. Some positive declaration or some decisive act indicating the intention would therefore be indispensable; but the further prosecution of *319this enquiry is rendered unnecessary by the judgment of the law-court.

Appeal dismissed.

Harper, Ch. I concur so far as respects the land.

DunkiN, Ch. I concur in the result, for the reasons stated in the circuit decree.

Joi-instqn, Ch. absent at the hearing.