#### C. E. GRAHAM vs. WILLIAM DAVIDSON.

A. in 1825, made a parol gift of a negro man to her grandson B. B’s. father took him into his possession at that time and kept him till 1841, when he conveyed him and other negroes by deed of gift to his said son and delivered him to B. In 1840, the grandmother’s husband, (she having been married a second time,) demanded the negro man of the father, who refused to deliver him. B; kept the negro from 1841 to 1846, treating him as his own. In 1843, B. requested permission of his grandmother to «ell the negro, which was refused. Held, that B’s. possession, under those circumstances for five years, even with a constant claim of title, could not divest the right of his grandmother’s husband.

The case of Green v. Harris, 210, cited and approved.

Appeal from the Superior Court of Law of Lincoln County, at the Special Term in July 1849, his Honor Judge Dick presiding.

This is an action of replevin for a slave, named Cato, which was commenced in March 1849, and in which the defendant pleaded, property in one Thomas Byers. The plaintiff gave evidence, that the slave once belonged to his grandmother, now the wife of Byers, and that, about the year 1825, she gave him to the plaintiff, and that John D. Graham, the father of the plaintiff, had the negro in his possession from that time up to the 11th of December 1841, when he delivered him and a number of other negroes to the plaintiff, and also made him a deed of gift for them, which was proved and registered in March 1848. The plaintiff further gave evidence, that, on the 20ih of May 1840, Thomas Byers went to the house of John D. Graham and demanded of him the negro Cato, and that John D. Graham, who then had the negro in his possess*246ion, refused to deliver him to Byers, and, on the 25th of the same month, wrote a letter to Byers demanding a negro woman, the mother of said Cato, and named Doll, as his property, and requested him to deliver her to the bearer of the letter , and therein added that “as to her son Cato, he is my property and has been claimed as such these 14 or 15 years. I shall retain him therefore, and leave you to pursue what course you deem best.” And that Byers then said, “I have no negro of John D. Graham’s, and shall have nothing to do with it.” The plaintiff farther gave evidence, that he took the slave Cato into his actual possession, on the 11th of December 1841, and so kept him and used and treated him as his own, up to the 27th day of December 1846 ; and that, on the latter day, the defendant took him into his possession, and on the next day the plaintiff demanded him and the defendant refused to deliver the slave, saying that he was his own.

The defendant gave evidence, that, in the summer of 1843, the plaintiff requested his grandmother, Mrs Byers, to allow him to sell Cato ; and that Mrs Byers, who was present, said, “no ; and if you are tired of Cato, send him home” — rto which the plaintiff replied “very well.” And the defendant also gave evidence, that, the day after the defendant took the negro, the plaintiff mentioned to one Allen, that Cato was gone, and he expected Davidson had him ; that Allen then asked the plaintiff, if he had nota good title to the slave Cato, and that the plaintiff replied, “I have a deed of gift from my father, but he had no title to Cato ”

The counsel for the defendant insisted to the jury, upon the evidence of the plaintiff’s application to Mr. and Mrs. Byers for leave to sell the negro, and of his admission that he had no title under his father’s deed of gift, that the plaintiff did not claim under his father, but considered himself as holding under the gift of Mrs Byers ; and prayed the court to instruct the jury, that, if they should so believe, they *247should find for the defendant, The Court refused to give the instructions prayed for ; and directed them, that, if they believed Byers demanded the negro, Cato, írom John D. Graham on the 20th. of May, 1840, and that he, John D. Graham, then refused to deliver him up, and also, on the 25th of May following, informed Byers by letter, that he claimed the negro as his own, then the statute of limitation began to run from the 25th of May 1S40, and the title of John D. Graham or of one claiming under him would ripen into a perfect title, in three years from that time-provided John D. Graham and the plaintiff, claiming under him, had kept the adverse possession of the slave during that time ; and here it was proved that they had the exclusive possession from the 20th of May 1840, until the 27th of December 1846. And that, if the plaintiff’s title had become perfect in three years from the 25th of May 1840, the expressions of the plaintiff to Mr. and Mrs. Byers, and to the witness, Allen, would not divest him.

Boyden, Guión and Johnson, for the plaintiff.

Craige, Alexander and Bynum, for the, defendant.

Ruffin, C. J.

Although it does not expressly appear, it must be understood from the manner in which the case is stated, that the gift of Cato from his grand mother to the plaintiff was by parol, and that the delivery was to the father for the plaintiff, then an infant probably. Such being the case, it may, at the least, be a question, whether the plaintiff could make a title under the Statute of lim itations, supposing him to have claimed under the conveyance from his father, unless something more appeared in the case than now does. For, although the Statute began to run in May 1840, in bar of an action against John D. Graham for his refusal to give the negro up to Byers, and although it be farther admitted, that, if he had *248retained the possession for three years after his refusal» Byers might also have been barred of his right to take or recover the negro, yet the result maybe different, where be did not retain the slave for that period, but within it delivered him to the donee of Byers, who accepted him, and for any thing now to be seen did not hold him otherwise than as Byers had done, as far as he made known to Byers. In such a case, it is worthy of consideration, whether Byers has not a right to treat a delivery to his donee, as a delivery to himself, as the donee is his bailee ’> unless the latter distinctly apprise the donor, that he denies his title and holds for himself, as by a refusal to restore tl.e possession or a wrongful disposition oftheproperty. Green v. Harris, 3 Ire. 311. It is true Byers might have sued John D. Graham atany time withinthreeyearsafter thedemand. But where the negro was delivered to the son. he had no motive to sue the father, unless the son should deny his right .as the father had done, and if he had done so, then, no doubt, the statute- would run against him in favor of the plaintiff, because then he would have an action against the son, as well as the father. In demanding the negro, then, it may have been the very purpose of B}rers, finding that John D. Graham claimed the negro as his own property, to get him for the plaintiff, and when the father afterwards delivered him. to his son, Byers might have considered his purpose answered, and for that reason rested satisfied. For, it is not stated, he even knew, that the father had undertaken to convey the negro to the plaintiff, as of his own gift, and much less that the.plaintiff made known to him, that he claimed the negro as his own, under a deed of gift from his father, and not under the parol gift of his grandmother. Could Byers have brought trover against the present plaintiff, merely upon his taking possession of the negro, and without a demand and refusal, when in the very stating of his title it would appear, that he had given the negro to him verbally? *249Would it have been sufficient for him to shew, in support of that action, that the pjaintiff’s father had refused to deliver the negro on demand, without shewing further that the plaintiff likewise denied his title and set him at defiance ? If it would not, then Byers never had a cause of action against the plaintiff, and, therefore, it would seem, ought not to be barred by the Statute, but might claim the slave, since the title had not vested in John D. Graham, at the time he parted from tiie possession to his son. But however that may be, as it is not necessary to the present case, we do not propose to decide the point. It is perfectly clear, that, if the plaintiff, although he took a deed of gift from his father, including this with other negroes, did not in fact assert a title under that deed, but took the negro under the gift from his grandmother, then his possession would not be adverse to Byers; and therefore there would not be three years’ possession of that character, and Byers would not be barred. It was upon that hypothesis the instructions asked by the defendant proceeded, and we think they ought to have been given» For although the subsequent declarations of the plaintiff would not proprin vigore vest a good title in him, as in the nature of a coveyance, yet, those declarations were material to show, that the plaintiff’ rested upon his having had an adverse possession; which was assumed, be cause he came in under his father, who had made his possession adverse by an assertion of title. That consequence would ordinarily follow ; and it might follow in this case, also, upon the presumption, that the plaintiff' claimed as his father did, unless it should be rebutted by the nature of the plaintiff’s title as donee of Byers, or unless it should appear upon evidence, that, in truth and fact, the plaintiff did not set up the adverse title, but, being conscious of its defect, abandoned it and held under his grandmother. Now his acknowledgment, at any time, of the manner in which he had held, or then held, *250was evidence to the jary, upon which they might find that his possession was not adverse to his grandmother, but was under her. It was therefore,at all events, erroneous to assume in' the instructions to the jury, that the possession of the plaintiff was adverse, in opposition to his ad mission of the grandmother’s title, implied by the declarations proved on the part of the defendant, if credited. It ought, at least, to have been left to the jury on that-evidence, whether the plaintiff took the negro and held him under the gift from his grandmother, with instructions, that, if he did, his possession had not been adverse to her or her husband, and therefore that he had no title against the latter. Upon this last ground the Court holds the judgment to be erroneous, and that it must be reversed, and a venire de novo awarded.

Per Curiam.

Judgment accordingly.