#### *John Bell*vs. *John Talbird.*

If husband of tenant for life of slaves holds over after the death of his wife, his possession is adverse, and may, after the time limited by the statute of limitations, bar the remainder-man, or reversioner.

If the wife dies after the first of March, the possession will not be adverse until the end of the year.

There is a wide distinction between promises to revive a debt barred by the statute of limitations, and admissions giving character to possession: in the latter, any admission of the party in possession, which goes to show that the possession was not intended, in its commencement or continuance, to defeat the other party’s title, will generally prevent the possession from being considered adverse.

*Before*DeSaussure, Ch., *at*Beaufort, January, 1831.

The bill states, that complainant is surviving legatee under the will of Thomas Bell. That said Thomas Bell, being seized and possessed of considerable real estate and personal property, made and published his will, dated about August 15,1795, and, amongst other things, gave to his wife (complainant’s mother) certain negroes, by name, during her widowhood, with one-sixth of his stock, etc., with a provision, that should she marry, said negroes, etc., to be equally divided among his then surviving children; but in case she should not marry, said negroes to be *362equally divided at her death among his then surviving children. . Testator further gave to his daughter, Elizabeth, half of a tract of land and one-fifth of his slaves, etc., to her and the lawful issue of her body forever; and, (after providing for his eldest son, Thomas,) he gave to his daughter, Mary, the other half of the said tract of land, with a limitation over of each half to his daughter Sarah, in case of the death of Elizabeth or Mary without issue. Testator further bequeathed to Mary one-fifth of his negroes, stock, etc., and by a subsequent clause of *the will*(having first devised and bequeathed certain property to complainant, and otherwise provided for Sarah) directs that if any of his sons or daughters should die without leaving lawful issue of their body alive, then their portion of the estate should be equally divided among his then surviving children. Bill further states the death of Thomas Bell, the testator, about 7th September, 1795, leaving said will in full force. His family then consisted of his wife, three daughters, viz. Elizabeth, Mary and Sarah, and two sons, Thomas and complainant. Sarah died, an infant and unmarried, soon after; by which event, her share of the personal property became divisible among the other-children. Elizabeth, having intermarried with defendant John Talbird, was put in possession of her share, as were also the widow and other children of full age. Elizabeth died about the day of 182-, leaving two children, who are parlies defendants. Shortly after this, the defendant, J. Talbird, married Mary, then the widow of one Palmer; and from thenceforth, possessed himself of and held, by the marital right, all the property bequeathed to Mary, and one-fifth of the property bequeathed to the widow, (then dead,) and also the property derived to Mary from Sarah. Bill states that Mary, soon after this marriage, to wit, on the day of November, 1825, died without issue — the complainant being the only child surviving her. There were then also living, two children of Elizabeth, and Thomas, the son of Thomas Bell, the testator’s eldest son. Bill states that John Talbird, ever since his intermarriage with Mary, has been in constant possession and enjoyment of the *363property (with the increase) bequeathed to her by her father immediately, and by way of remainder, subject to the limitations and restrictions before mentioned; and since her death, has continued in the possession and enjoyment thereof, with full and perfect knowledge of testator’s will and of complainant’s claim thereunto, receiving and disposing of the rents and crops of the real estate, and the hire, wages, etc., of the personal property, and now continues to receive and dispose of the same. That complainant, being the only surviving child, and therefore entitled, upon the death of Mary without issue, to the whole personal property of Mary under the will, and, together with the three grandchildren, to a part of the land, with an account of rents and profits, but being ignorant and uninformed of the number and names of the negroes devised to Mary, has often applied to J. Talbird for an account of the personal property of said Mary bequeathed to her by the will, and for a discovery of the names of the negroes and number of the cattle, and for an account of the profits of the land. Complainant has also applied to the other defendants for partition. Bill states that Tal-bird has refused all satisfaction and discovery under various pretexts. Bill prays discovery and relief.

Defendant, by protestation, not confessing all or any of the charges of the bill, or things contained therein — for plea to said bill, says, that if complainant ever had any cause or right of action against this defendant, on account of the matters contained in the bill (which is not admitted), the same did accrue more than four years before the filing of the bill or service of process in this or any other suit. And defendant avers that he made no promise touching the matter in the bill within four years before filing the bill or the service of any process. Therefore} defendant pleads the Act of Limitations, etc,

BeSaussure, Ch. The brief of the bill states the case fully and clearly, and accompanies this decree as part thereof.

The right of the complainant to the property in question, under the will of the testator, is not now disputed; though a ques*364tion may arise hereafter, as to a part of it, as is stated below. The defence set up, is the Statute of Limitations, which is pleaded. The complainant’s counsel insist, that even if the statute of limitations should be decided to be applicable to the case, the defendant has deprived himself of the benefit of it by certain acknowledgements made to a witness who has testified in the cause. But it is also denied that it is a case to which the statute of limitations should apply.

As to the first point,. I have perused carefully the evidence referred to. It was 'given cautiously and candidly, and is in writing, and accompanies this decree. I cannot be satisfied that the facts stated in the evidence make out such an acknowledgement or promise as will take the case out of the statute. Mr. Fuller’s argument is, I think, conclusive on this point. He shows clearly, that by a series of decisions, the operation of the statute had been frittered away, until the Judges felt alarmed and dissatisfied, and have retraced their steps. It seems now to be settled that nothing but a clear acknowledgement or unqualified promise will take a case out of the statute. It does not appear to me that the evidence relied upon, establishes such a clear unequivocal acknowledgement, or unqualified promise, as ought to be allowed to produce that effect. Indeed, whatever took place was really conditional. It was rather an offer of a compromise on certain terms; which not haying been accepted, or completed, falls to the ground. On this point, therefore, my opinion is with the defendant. ■

The next question is, whether this is a case to which the statute applies. The arguments of the counsel on this question are full and able, and the Court is under obligations to them for the pains taken to bring out all the law on the subject. On a careful consideration of the arguments, I am satisfied, that the statute does not apply to such a case. There are, among other things, certain devises and bequests to testator’s daughter, Mary, but if she dies without leaving issue, then the property bequeathed is to go over to such of his children as may be living at the time of her death. The daughter marries and dies without *365having issue. Her husband came into possession of the property subject to this limitation over. It was a trust estate in the construction of this Court, as appears by the decided cases, and he held it as much subject to the trust as his wife had. Mr. Tre-ville’s argument is, I think, conclusive on these points. In my judgment, therefore, the plea of the statute cannot be sustained. It must be overruled, and the defendant is directed to answer over.

The defendant appealed, and moves to reverse this decree, on the ground—

That admitting the possession of J. Talbird to have been that of a trustee during the life of his wife Mary, yet, upon her decease, in November, 1825, the fiduciary relation clearly determined. His possession became adverse, and the Act of limitations commenced its operation.

*Evidence.*— R. De Treville sworn and examined, states, that in February, 1830, he was requested by complainant, Bell, to learn of Jno. Talbird, the defendant, what was the nature or object of the paper, he, Talbird, wanted him, complainant, to sign. He (witness) saw Talbird a short time afterwards, in Coosawhatchie. Witness then told him the request that Bell had made of him. After some conversation by way of explanation, Talbird said, that *he, Talbird, and Mr. Bell, were the only two entitled to any part of his*(Talbird’s) *wife's property, under Tom Bell's will, because John Bell was the only one who had survived his wife, and for that reason, he had understood,*that little Tom Bell could not claim. He said, that as to the land, of which his wife died possessed, he would give it up, because he had not had it sufficiently long ; but as to the negroes, he would not give them up, because he had had them more than four years. Witness then asked him if he would insist on the statute of limitations under such circumstances. He replied and shook his head, that he did not know. Talbird- then left witness, and about the 2nd of April, 1830, he came to witness in his office, and after a desultory conversation, witness alluded to *366the agreement which Talbird wanted Bell to sign, and asked him to explain more fully his wishes, and told him that he had been instructed by Bell to enquire exactly the nature of his wishes and to act for him, and asked him if he had ever delivered to Bell the negroes of which his second wife died possessed. He replied that he had not delivered them, because Bell'had never demanded them. Witness asked, where they were. He said they were all in his possession, except a few, sold by Mrs. Talbird, o.r by him and Mrs. Talbird in her lifetime — that he understood, that by or under Tom Bell’s will, his wife’s father, he, Talbird, was entitled to one-half of his wife’s negroes, or property, and said, if John Bell, the complainant, would release all claim which he had upon the second Mrs. Talbird’s land and negroes, that he, Talbird, would release a claim which he had against Jno. Bell for a legacy of $>1,009, and procure Mrs. Henry, his daughter,, to release a legacy for $1,000 under Paul Bell’s will (of which John Bell is the only executor); that if that were done, he thought that he and Bell would be about square.

The demand of the negroes, before filing bill, was proved. Talbird did not positively decline at first, but said that he would think of it, but never gave an answer.

The opinion of the Court was delivered by

O’Neall, J.

That tenants for life are trustees for the remainder-men or reversioners, as the case may be, and their possession, or the possession of any one claiming under them, cannot be adverse during the continuance of the particular estate, to rights in remainder or reversion, is too clear to admit of a question. But on the determination of the particular estate, the trust is also determined ; and the holding over of a tenant *per autre vie,*must be adverse. His possession is no longer referable to the title by which he came in ; if he uses the property, it is tortious against the remainder-man or reversioner: and for it an action will lie against him. It is true, if he chooses, he can hold the property as a mere stakeholder, by either not using it, or by *367giving notice to the right owner that he is ready to deliver it to him ; and, in such a case, he would not be liable to an action. But if he uses the property at all, it must be as a wrong doer, and the wrong then commenced may, by a sufficient lapse of time, be the foundation of a legal title. Any act of possession which gives thé'legal owner the right to sue,'is generally adverse, and may, after the time limited by the statute, bar the plaintiff’s right of recovery. In *Fisher*vs. Prosser, Cowp. 217, Lord Mansfield said: *“*A man may come in by a rightful possession, and yet hold over adversely without a title. If he does, such holding over, under circumstances, will be equivalent to an actual *ouster.*For instance, length of possession during a particular estate, as a term of one thousand years; or under a lease for lives, as long as the lives are in being, gives no title. But if tenant *-per autre vie*hold over for twenty years after the death of *cestuy que vie,*such holding over will, in ejectment, be a complete bar to the remainder-man or reversioner, because it was *adverse to his title.”*So in the case before us, the holding over of the husband, after *the*death *of his wife,*the *tenant for life, is*adverse to the title of the complainant. For at any time after the expiration of the year, in which Mrs. Tálbird died, (if she died after the 1st of March,) the complainant might have brought trover for the conversion of the slaves, against the defendant; and his use of them would have been sufficient evidence to establish the conversion. Under our Act of Limitations, actions ■ of trover ór detinue must be brought by the plaintiff, if laboring under no disability, within four years next after the cause of action given or accrued, and not after. For the purposes of this question, this bill must be regarded in the same light as an action of *trover*or detinue ; and be subjected to the same rules as to the operation of the statute oí limitations.

The question, then, arises, when did the complainant’s right of action accrue *1*At the end of the year in which Mrs. Tal-bird died, the defendant’s right, as tenant *per autre vie,*ceased. His use of the slaves, after this time, was the use of-the property of another, without his' consent, either actual or - implied. His *368possession was, therefore, in this respect, adverse to the legal estate; and the statute would then commence to run, unless the defendant’s admissions qualify the legal effect of this his possession, and repel the presumption that it was adverse. And this, I think, they do.

The admissions, proved by Mr. De Treville, distinctly admit the complainant’s right to an undivided part of the negroes in dispute; propose to give the legacies of the defendant and daughter to the amount of $2,000 for his entire interest; and assign, as a reason why the negroes had never been given up, that they had never been demanded.

There is a wide distinction between promises to revive a debt barred by the statute of limitations, and admissions giving character to a possession. In the former, as decided in the case of *Young*vs. *Monpoey,*(2 Bail. 278,) there must be an express promise to pay, or an admission of a subsisting debt which the party is either liable or willing to pay. In the latter, any ad-.. mission of the party in possession,' which goes to show that the possession was not intended, in its commencement or continuance, to defeat the other party’s title, will generally prevent the possession from being considered adverse; *Harrington*vs. *Wilkins,*2 McC. 289 ; and *Markley*vs. Amos, 2 Bail. 603.

The defendant, in his conversation with Mr. DeTreville, admitted the complainant’s right as a co-tenant; and although he afterwards added, I will not give up the slaves, because I have had an exclusive possession for more than four years, yet it is clear, from his admission, that his possession, in both its commencement and continuance, was by him supposed to be in the right of himself and another. If so, it at once negatives the otherwise legal presumption, that it was adverse. His offer to give up his and his daughter’s legacies, amounting to $2,000, for a release of the complainant’s rights, was not a mere peace offering ; it was such a sum as no one would be willing to pay to be rid of the trouble of a law suit. It shows that he regarded the complainant as having still the rights of property. The reason assigned by the defendant, why possession of the slaves had *369not been delivered to the complainant, “that no demand had been made,” shows that his possession was either by the actual consent of the remainder-man, or that he did not regard himself as holding over against his rights. For these reasons, I think the plea of the statute of limitations was properly overruled: and the decree of Chancellor DeSaussure is, therefore, affirmed.

O’Neall and Earle,- JJ., concurred.

*Decree affirmed.*