#### JOSEPH M. D. POWELL v. JESSE POWELL, Executor of DEMPSEY POWELL.

When slaves were given by parol, and, upon the death of the donee, intestate, were assigned to one of his next of kin, a possession of them by the latter, for more than than three years, gives him a perfect title.

The defendant’s testator, in the year 1822, made a parol gift of slaves to his nephew, the father of the plaintiff. Possession was held under this gift, by the donee, until his death in 1824, when they came to the hands of his admin*380istrator, who soon after delivered them over, in a course of distribution, to the defendant, as the guardian of the plain- ^ Possession of the slaves was continued by the defendant, as guardian of the plaintiff, until the year 1831, when Dempsey Powell died, having made his will, whereof he appointed the defendant executor. The defendant being-advised that he held the slaves as executor of Dempsey Powell, and not as guardian of the plaintiff, immediately resigned the latter trust; and the object of the present bill was to determine whether the plaintiff had the title to the slaves, or whether the defendant should hold them as executor.

Manly for the plaintiff.

W. H. Haywood for the defendant.

Gaston, Judge,

after stating the facts, proceeded:— 'The possession of the plaintiff’s father was under a general ■bailment, determinable at the will of either party, and no length of possession under that bailment, could avail to give him a title. (Hill v. Hughes, 1 Dev. & Bat. 336.) But upon his death, the bailment necessarily terminated. Whether the possession then taken by his administrator, was adverse to the title of the defendant’s testator, it is unnecessary for us to determine. Perhaps it might depend upon the fact whether the possession was taken as of the effects of his intestate, under his authority as administrator, or as of the effects of the bailor, found among those of his intestate. But after they were delivered over unto the plaintiff, upon a claim of right, as his, the plaintiff’s own property, a possession of them by the plaintiff’s guardian, as such, was wholly inconsistent with, and repugnant to the admission of a title in the original bailor. Dowel v. Wadsworth, 2 Dev. 103. An action of detinue or trover might then have been brought by him against the possessor. By our statute of limitations, such actions are barred if not instituted within three years after the cause of action accrued; and under our act of 1820, (Rev. ch. 1055,) a possession of a slave, continued until it is protected by the statute of limitations, confers a complete title against.the *381person thereby barred of his action. This last act contains, indeed, a proviso, that it shall not affect the law requiring gifts of slaves to be made by written transfer, but the proviso is satisfied, and completely satisfied, by holding that a parol gift is, in law, a bailment, and that no length of possession under the bailment, shall cause it to operate as a gift.

June, 1836.

It is the opinion of the Court, that the plaintiff is entitled to a decree for the negroes, and an account of the hire and profits.

PeR CmiAM. Decree accordingly.