#### *Allen W. Nix and others*vs. *Almedia Harley and Henry Milhouse.*

Defendent purchased plaintiffs’s slave from a third person — remained in possession sometime, — and then re-sold her to the person from whom he had *purchased,*— all *•without notice of any right in plaintiffs:*— Held, that a bill would not lie to compel defendant to account for the price received by him, and the hire before the re-sale,— plaintiffs should pursue their remedy at law.

Nine plaintiffs filed their bill against defendant for the specific delivery of a slave which they claimed as tenants in common: defendant pleaded the statute of limitations, which was sustained as to four of the plaintiffs who were of age four years before the filing of the bill — the other five being then infants: the effect of sustaining the plea as to four of the plaintiffs being to vest in the defendant four-ninths of the slave, *held,*that, under the prayer for general relief, the other five plaintiffs were entitled to a decree for the sale of the slave for partition.

*Before*Dunkin, Ch. *at Barnwell, February,*1851.

Dunkin, Ch. The bill is, obviously, multifarious. There is no connexion whatever between the defendants. The complaint against them is in reference to different objects, and the relief sought entirely different. They form two distinct cases, and must be separately considered.

The complaint against Milhouse is that, knowing the rights of the plaintiffs in a negro woman, Jenny, he sold said slave for the purpose of defeating them. The prayer is, that he may account for the price, with interest. According to the testimony, the right of the plaintiffs, to the possession of the negro, accrued in June, 1844. The answer of Henry Milhouse is directly responsive to the-charges and interrogatories of the bill. He avers that, in the latter part of 1845, or beginning of 1846, he purchased Jenny for four hundred dollars from Charles Ray, who was in possession, and claimed the slave as his own property, and that he paid him the money ; that the defendant held the slave for more than four years, and afterwards, to wit, in the spring of 1850, he sold her to the said Charles Ray, who was, and still is, a resident of Barnwell district, for the same sum as he had given for her. He positively denies that, at the time of his purchase, or of the subsequent sale, he had any knowledge *380of the plaintiifs’s right, or that they ever applied to him for any information on the subject, which he would readily have afforded to them. The bill was filed on the 25th October, 1850.

On this state of facts, (and no other was attempted to be made out by the evidence,) it is difficult to perceive on what ground the plaintiffs are entitled to the aid of this Court, as against the defendant, Milhouse. The bill states that he was not in possession of the plaintiffs’s slave. It avers no demand. There is no reason to surmise that, in 1845 or 1846, when the defendant purchased the slave, he had any doubt about the title: it is mere surmise, against the positive denial of the answer, that he had any knowledge of the plaintiffs’s right when he parted with the slave in the spring of 1850. If there be any principle on which the plaintiffs, under these ciroumstances, have any right to recover from the defendant the amount for which he sold the slave, it is a right for which they have a plain and adequate remedy in the ordinary tribunal.

The case against the other defendant, Almedia Harley, is for the specific delivery of a negro fellow named Jeff, and for an account of his hire since he has been in the defendant’s possession.

The defendant, not conceding the plaintiffs’s right, insists on the statute of limitations, as well as the want of jurisdiction.

The plaintiffs are the nine children of Elizabeth Nix, deceased, and they claim under a deed of their grandfather, dated December, 1815, by which their mother had a life estate in this and other slaves, with a valid limitation to the plaintiffs. The life tenant died on the 4th June, 1844; and, some two and a half years afterwards, the father, with some of the plaintiffs, his children, removed to the State of Florida. The defendant is a daughter of Colonel Tarlton Brown. It seems that Jeff was purchased by Colonel Brown, from Charles Nix, (the father of plaintiffs,) in 1843. Colonel Brown died in September, 1845.— On the 15th December, 1845, his negroes were divided, and Jeff fell to the lot of the defendant. The plaintiffs instituted these proceedings on the 25th October, 1850. At the time of the right *381accrued, to wit, 4th June, 1844, all the plaintiffs resided in South Carolina. Three of them, to wit, Allen, Edward and Frances, were, at that time, more than twenty-one years of age, Allen being about twenty-eight — Edward, between twenty-six and twenty-seven — and Frances, some two years younger. Mary Ann became of age in March, 1846, more than four years prior to the institution of these proceedings. Four of the plaintiffs were, therefore, barred of their claim by the statute of limitations. The prayer of the bill is for specific delivery of the negro, Jeff, and an account of his hire; and the plaintiffs have established a title to only five-ninths. It is very clear that this would not entitle them to a specific delivery. If the action were *detinue*in the court of law, the plaintiffs would, necessarily, be nonsuited — for it is a joint action — the right is a joint right. In *Henry*vs. Means, (2 Hill, 334.) and in Bail. Eq. 535, the rule is recognized that the right oí the infant joint tenants may be preserved, although the adults be barred by the statute; and the Court consider the action of trover as a proper mode of enforcing the right. *11*The action of trover,” says the Court, “ which is the one before us, does not seek the recovery of the specific chattel, but damages for the conversion. It is also clear that, in such an action, the jury may find damages exactly proportioned to the title proved. There is no technical unity in the thing to be recovered, which compels us to protect all from the bar of the statute, because it does not reach one.”

But, in a bill for the specific delivery of a chattel, there is “ a technical unity in the thing to be recovered.”

The ground of jurisdiction in this Court, for the specific delivery of a slave, entirely fails, if the right of the plaintiff to the whole be not perfect. If the plaintiff can make out a title only to a third, or to two-thirds, he can have no specific delivery, and his remedy at law is as perfect, for the wrong done to his interest, as it would be in the case of any other chattel.

The Court is opinion that the plaintiffs’s bill must be dismissed, and it is so ordered and decreed.

Complainants appealed, on the following grounds, viz:

*3821. That the complainants were not barred by the statute of limitations, and were entitled to relief on the case as made, both against Almedia Harley and Henry Milhouse.

2. That, even if some of them were barred, the others were entitled to relief, as against Almedia Harley, by partition or otherwise.

3. That the complainants were entitled to relief against Henry Milhouse, on the well established principle of equity, that, if a person, in possession of property, undertakes to sell it, and delivers it accordingly, it is at the owner’s option, either to pursue the property in the hands of the holder, or to affirm the sale, as the act of the voluntary agent, and recover the proceeds in his hands. Nor, in this case, was the remedy at law plain and adequate.

*Bellinger*& *Hutson, for complainants.*

*J. T. Aldrich, Owens,*contra.

Wardlaw, Ch.

delivered the opinion of the Court.

The Chancellor properly remarks that this bill is multifarious, presenting two distinct cases that must be separately considered.

We will first consider the case against Milhouse. He bought the slave, Jenny, to which the plaintiffs were entitled in remainder after a life estate in their mother, — remained in possession of the slave for more than four years, — then re-sold the slave to the person from whom he had purchased — all without notice of any right in the plaintiffs. The bill states the fact that Milhouse had sold the slave, and prays that he may be required to pay to the plaintiffs the price received by him with interest, and account for the hire before the sale. The claim of the plaintiffs is one strictly legal, which might be enforced by trover or assumpsit in the court of law, and no circumstance is stated requiring the peculiar intervention of this Court. It may be admitted to be a principle of equity, as stated by Chancellor Harper, in *Bryan*vs. *Robert,*(1 Strob. Eq. 343,) and *Hill*vs. *Hill,*(1 Strob. Eq. 23,) that if a stranger in possession of my property undertakes to sell it, and delivers it accordingly, it is at my option either to pursue the property in the hands of the holder, or to affirm the *383sale as the act of a voluntary agent, and recover the proceeds in his hands. In both of these cases, the vendors had explicit notice of the adverse claims they had sought to evade by sales of the property ; and although it may be true that the principle may be sometimes enforced against vendors who made such sales in good faith, believing themselves to be owners of the proporty sold; yet, certainly, it is the fact of notice of adverse rights that affects the conscience of vendors in such cases, and peculiarly justifies the interposition of this Court. I do not question, that if Milhouse had been properly brought before the Court for the specific delivery of some slaves in his possession, to which plaintiffs had legal title, and to *account*for the value of other slaves, in the same bill, which he had sold, that the bill would be properly entertained in this Court for both purposes. But here plaintiffs proceed for the price of a single slave sold, and nothing more; and we think (hat for such a demand, strictly legal in its character, he should pursue his remedy in the court of law. We are the more moved to this course, because this defendant has been joined in a controversy with another defendant, with whom he has no community of interest. It is ordered and decreed that the bill be dismissed as to Milhouse, but without prejudice to the right of the plaintiffs to prosecute their elaim elsewhere.

As to the case against Almedia Harley, we concur with the Chancellor that four of the plaintiffs are barred by the statute of limitations, and as to them the bill is dismissed. But we think that the other five plaintiffs are entitled to partition of the slave, they being tenants in common with this defendant. The remedy to be afforded, in a case in equity, depends upon the whole pleadings in the cause. The case may be so varied by the answer of defendants or the proofs, that a plaintiff may be barred from the special remedy he seeks, yet, under the prayer for general relief, the Court will afford such remedy as is proper under all the circumstances of the case. Here the plaintiffs presented a case, in which, *prima*facie, the peculiar remedy prayed for,— specific delivery of the slave, — was just and equitable ; and they may not have had the means of knowing, and were not bound *384to anticipate, what defences might be set up by the defendant. The whole case is before us, and in avoidance of further litigation, we will decide now upon the rights of the plaintiffs, and the defences of the defendant. The effect of allowing the plea of the statute of limitations against the adult plaintiffs, and disallowing it as to the infants, is to vest four-ninths of the slave in the defendant, and to leave the five younger plaintiffs each entitled to one-ninth. It is ordered and decreed that the" defendant, Almedia Harley, deliver the slave Jeff to the commissioner of this Court for Barnwell district, and that said commissioner proceed to sell said slave at public auction, on a credit of twelve months, and distribute the proceeds of sale among the parties according to their interests as herein indicated.

Johnston, DüNkiN and Dargan, CC. concurred.

*Decree modified.*