#### JOHN WILLIAMS, ADM'R, &c. vs. ETHERTON WILSON.

Where slaves were given to A. during her coverture with B. and put in their possession, and, afterthe death of B , C., his administrator, believing A« had a right, returned the possession to A., who claimed them as her own and retained the adverse possession for two years, and then conveyed them to C., as in his own right, Held, that after the termination of the bailment to A. and her delivery of the slaves to C., he was remitted to his original right, and held the slaves as administrator of B-, and on the death of C.9 the administrator de bonis non of B. was entitled to recover the slaves.

The case of Smart v. Smith, 2 Dev. 358, cited and approved.

Appeal from the Superior Court of Law of Bertie County, at the Fall Term 1849, his Honor Judge Bailey presiding.

This was an action of detinue brought by the plaintiff as administrator de bonis non of Hezekiah Mizell, to rccover a number of slaves. The slaves in question were, by one Judith Britton, given to Ann Mizell after her intermarriage with the said Hezekiah Mizell. The slaves went into the possession of Hezekiah Mizell, and so remained for several years until his death. He died‘in the year 1842, and administration on his estate was granted by the Court of Pleas and Quarter Sessions of Bertie, at August Term 1842, to his son West Mizell. West Mizell surrendered the slaves in question to the said Ann Mizell, supposing, as it was in evidence he declared, she had title to them after his father’s death, and the whole of them except six, George, Plagar, Norfleet, Lewis, Ceasar and Lucinda, remained in her possession more than three years before her death, she claiming them as her property, and West Mizell, the administrator, admitting they were. *483The following slaves, the said George, Hagar, Norfleet, Lewis, Ceasar and Lucinda, -went into Mrs. Mizell’s possession, and so continued for about two yeaYs, when she, to favor her son, delivered them to the said West, he admitting the property in them to be in her, who continued in possession of them up to the time of his death. Mrs. Mizell then took the negroes, died shortly afterwards, to-wit, within a few months thereafter, when they went into the possession of the defendant. There was a demand of these slaves by the plaintiff as the property of his intestate, and a refusal to deliver.

It was insisted by the plaintiff’s counsel, that, although their right to recover any oi'the slaves, except those which were re-delivered by Mrs. Mizell to her'son, was barred by the statute of limitations, yet, as to those, the statute was not a bar.

His Houor instructed the jury, that, if they believed •the evidence, the plaintiff’s right to recover any of the slaves was barred.

. Rule for a new trial; rule discharged, and appeal prayed and granted to the Supreme Court.

W. N. II. Smith, for the plaintiff.

Bragg, for the defendant.

Pearson, J.

The plaintiff seems to have conceded, that he could not recover the slaves, which were kept in possession by Mrs. Mizell ; but he insisted, that he had a right to recover the slaves, that she put in the possession of her son, West Mizell. Ilis Honor thought the plaintiff’s right was barred as(to all; and that the effect of the bailment was not merely to estop West Mizell from denying the title of his mother, while the bailment and the possession obtained under it continued, but that it bad the further effect of making his possession her possession, and of protecting it against his own better title,, *484so as to divest it and pass a good title to her under the act of 1820.

We cannot concur in this conclusion. It carries the doctrine of estoppel beyond the reason upon which it is founded — to enforce the observance of good faith — and involves the absurdity of making one hold possession adverse to himself. It is enough, that he is not allowed to derive any advantage from the possession, which he ac* quired under the bailment. There is no reason why he should be prejudiced in the assertion of his title after the bailment was determined and the possession restored.

If one accepts a lease of his own land from a person in adverse possession, he is not at liberty to deny the title of his landlord during the continuance of the lease or of the possession obtained under it, but when the relation of the landlord and tenant ceases, he may assert his title. He cannot take benefit of the possession thus acquired, or claim to be remitted to his “more ancient and better title;’» for, accepting the lease was his own act and he is estopped thereby during its continuance. But after it is determined, he will not be prejudiced and may well assert his title. Coke on Lit. 47, b. Smart v. Smith, 258, 2 Dev.

Per Curiam.

Judgment reversed and a venire de novo.