#### Wm. Aikin, Adm’r. of Wm. Aikin, *v.*Thos. P. Ballard.

A possession of negroes under *purchase*from a debtor, by judgment and execution, for more than six years, will be protected by the statute of limitations from the claims of the judgment creditor — but where the purchase is colorable merely, and the possession of the purchaser is held for the debtor in the execution, the lien of the execution attaches and the property is still liable.

Whatever is necessarily within the complainants own knowledge, should be alleged positively. On the other hand, if the facts essential to the determination of the complainants case, are charged in the bill to rest on the knowledge of the defendant only, or must of necessity be within his knowledge only, a precise allegation is not required. ,

A charge in *general terms,*in a bill, where it is the point on which the merits of the cause turn and does not come in collaterally, and incidentally, will warrant the production of evidence to *particular*facts.

*Before DUNKIN, Chancellor, at Lancaster, July Term,*1838.

This case came up on an appeal from the' decree of the chancellor. The decree is as follows;

“On the 13th November, 1820, William Aikin, deceased, obtained a judgment in Kershaw District, against Col. Thomas. Ballard, sen’r., for $508 74, and a judgment against David G. Ballard, and Thos. Ballard, sen’r. for $1421 19. In both cases a fi. fa. was lodged, 5th December, 1820. There was evidence that these were the oldest unsatisfied liens against the property of Thomas Ballard, sen’r.

The object of the bill was to compel the defendant to surrender certain negroes, which he held under alleged fictitious transfers from Thomas Ballard, sen’r.

It appeared from the testimony, that in 1821, Thomas Ballard, sen’r., removed to Georgia, leaving in the possession of his son-in-law, Samuel Caston, seven negroes, which had been transferred to him as an indemnity for his suretyship on a debt to Col. Peay. I infer from the testimony that he carried with him to Georgia, *14Mary and her children. In February, 1830, Thomas Ballard returned for a short time to this State, induced the negroes left with Caston, to leave his possession, and then transferred them to the defendant for $1000. It is very clear that the defendant at that time was aware of Aikin’s lien on the negroes, but in the language of the witness, he was willing to take the risk of that claim.

The object evidently was to defeat Caston. I am disposed to believe that the consideration money was really paid, and when the character of the litigation with Caston is taken into the estimate, it is not clear that the consideration was inadequate.

The defendant has held the negroes as his own for more than six years, prior to the institution of these proceedings. He insists on the protection of the statute, and I think he is entitled to it. — • Cholette v. Hunt, 2 Bay. 156: Smith v. M’Raa, lb. 339.

In 1830, or 1831, the complainant’s intestate caused a suit to be instituted in Georgia, against Thomas Ballard, founded on the judgments already mentioned. Col. Ballard, having then in his possession Mary and her children, and fearing that they would be taken to satisfy this debt, removed them back to Carolina in April, 1832, and placed them in the possession of the defendant, where they have ever since remained.

Col. Ballard was examined for the defendant, who is his son. — . He stated that he sold Mary and her children, to the defendant, in February, 1830, when he sold the other negroes, but that they were to remain in his possession until his son sent for them. No bill of sale or other written evidence of title was produced. Col. Ballard was aged, and as I thought, infirm both in body and mind, and testified indistinctly. If there had been ever any bona fide transfer of Mary and her children, (of which I was by no means satisfied,) I do not doubt that the account of John Ballard was the true statement of the transaction. He was in Georgia in 1830, when Aikin’s suit against his father was pending. The woman and her three children were then in his father’s possession. “ He understood both from his father and the defendant, that the defendant was to give $500 or $550, for the woman and her three children. The negroes were to remain in the possession of Thomas Ballard, sen’r., during his lifetime — he was to have them as long as *15he Jived.” Col. Ballard testified that Aikin obtained judgment against him in Georgia — that he sent Mary and her children to this State shortly afterwards, as he thought they might be levied on, and his son be put to trouble.”

I am quite satisfied that the subsequent possession of the defendant, was for the benefit of his father and not in his own right. It is ordered and decreed that the defendant, Thomas P. Ballard, deliver up to the commissioner of this court, the negro woman Mary and her three children, that they be sold by the commissioner for cash, on the first Monday in January next, and that the proceeds be applied towards the payment and satisfaction of the amount due to the complainant. Costs to be paid by the defendant.

The complainant now moved this court to modify the decree of the circuit court, made in this case, in the following particulars, and on the following grounds :

1. That as the defendant was fully apprized of the judgments and executions of complainant’s intestate, against his father, Thos. Ballard, seri’r., at the time he purchased the negro slaves in question from his said father, and that they were bound by said executions, the statute of limitations should not have been applied against the claims of complainant as to any part of said slaves; but that the whole of them, should have been made subject to the payment of said executions, although the negroes were in defendant’s possession more than four years.

2. That as it was manifest the defendant purchased said negroes, with a view of defeating complainant’s intestate’s liens upon them, his purchase should have been considered null, and void, even though he paid a full and valuable consideration: and that his possession under such' purchase, should not have entitled him to the benefit of the statute of limitations.

3. That as the complainant was not informed of said negroes being in possession of the defendant, but for a short time before the filing of his bill, that is within four years before the filing of it, the statute of limitations should not on that account have been applied against the demands of complainant.

The defendant appealed from so much of the decree as related to Mary and her children, and moved to reverse the same.

*161. Because the sale of said negroes by Col. Ballard to his son, was bona fide, and for a consideration which, under the circumstances, was adequate.

2. Because defendant’s possession of the slaves was in his own right, adverse, and fatal to complainant’s supposed lien.

3. Because Col. Ballard’s possession for ten years, within a jurisdiction where Aikin’s executions lost their lien, and a sale by him to defendant of said slaves while thus out of the jurisdiction of this State and released from the lien, is a bar to complainant’s demand, as far as said slaves are concerned.

4. Because independent of Col. Ballard’s long possession in Georgia, the bona fide sale of the slaves by him to. his son, while the same were not subject to the lien, vests a title in defendant, discharged from the lien of the executions — and that after such transfer the said lien cannot re-attach upon the return of the slaves to this State.

5. Because a want of knowledge of the pretended fraud, within four years before bill filed, is not alleged on the part of the intestate, though it is on the part of the administrator.

6. Because there is no charge in the bill as to Mary and her children, upon which the decree can rest.

Curia, per Dunkin, Ch.

The court are satisfied with the circuit decree.

In respect to the defendant’s 6th ground of appeal, that there is no charge in the bill, as to Mary and her children, upon which the decree can rest, it may be proper to offer a remark:

The rule is stated in Coop. Eq. Pl., 6, that whatever is necessarily within the complainant’s own knowledge, should be alleged positively. On the other hand, if the facts essential to the determination of the complainant’s case are charged in the bill, to rest on the knowledge of the defendant only, or must of necessity be within his knowledge only, a precise allegation is not required.— In the next page it is said, “ a charge in general terms, where it is the point on which the merits of the cause turn, and does not come in collaterally and incidentally, will warrant the production of evidence to particular facts.” Considering the character of the com*17plainant’s bill, the court is of opinion, that the charge was sufficiently definite. But when it is remembered that the evidence in regard to Mary and her children, was received without objection on the part of the defendant, and that he replied to it fully, it would be irregular to permit him, at this stage of the proceedings, to aver that this matter was not properly put in issue.

*Clark*& *M’Dowell,*Sol. for complainant.

*W. F. Desaussure,*Sol. for defendant-.

The appeal of both parties is dismissed, and the decree affirmed..

Johnson, Harper and Johnston, Chancellors, concurred.