#### THE STATE ON THE RELATION OF ISRAEL FANSHAW vs. WILLIAM JONES AL.

An infant mulatto child was found at the door of a gentleman, who took charge of it, and it remained in his possession for more than seven years, he professing that he did not claim her as a slave, but believed she was free, and refused to deliver her to any person, who could not show a good title to her as a slave At his death, he left her two hundred dollars.— Held, firsts that, if she was free, of course the next of kin could not claim distribution of her or of the legacy; secondly, if she was a slave, the next of kin were entitled to distribution of the legacy, and also of the girl herself, if he had her three years or more in adverse possession ; and that, to vest the title of the slave in him, by virtue of the statute, it was not necessary that he should have claimed her as a slave.

Appeal from the Superior Court of Law of Currituck County, at the Spring Term 1S49, His Honor, Judge Manly, presiding.

This is an action of debt on the bond, given by Jones, as the administrator of the will annexed by Henry Britt deceased. Pleas, conditions performed, and no breach. The relator is the administrator of the testator’s widow, who dissented from her husband's will. The breach assigned is, in not distributing a negro slave named Mary Ann and the sum of #200, left by the testator and not effectually disposed of in his will. It was admitted at the trial, that, if entitled at all, the relator was entitled to one third of the negro and money, and that, before suit brought, he demanded the same of the defendant Jones, who denied the relator’s right to any part of the fund. In the will there is the following clause: “The girl Mary Ann, which was picked up or found at my door, is to re*155main with my wife Polly, until she arrives at the age of twenty-one ; and then it is my will, that she be and enjoy all the benefits of a free person of color. I also give and bequeath to the said Polly the sum of two hundred dollars.”

For the purpose of showing that the girl Mary Ann was the slave of the testator, the relator gave evidence to the following effect: The testator resided in Currituck County, and, about the year 1829, one Wilson, who resided in the same County, sold to one Willis a female slave, named Milly, who was pregnant. Willis resided in Cas-well County and was a negro-trader. The woman ran-away from Willis in Currituck, and in some short time afterwards she came to the house of a widow lady, wlm lived in Currituck, and a short distance from Britt’s, bringing with her a female infant, perfectly naked and apparently not more than a day oíd. The lady told the woman, that she and her child would die if they continued in that condition, exposed in the woods, and advised her to go to her owner. The woman went away, and, in two> or three days afterwards, a mulatto female infant was found at the door of Britt’s house, who is the girl Mary Ann. But the lady did not see the infant in any short time, and therefore did not know her to be the same, which the woman Milly brought to her house; but evidence was given that the girl Mary Ann is a bright mulatto and bears a family resemblance to the said Milly. Britt and his wife had no children, and took the found child into the house with them, brought her up tenderly, and became much attached to her. About four years af-terwards, Willis returned to Currituck and claimed Mary Ann, as the child of his woman Milly and his slave, and demanded her from Britt. But the latter refused to give her up, saying that neither Willis nor any other person should have her without establishing a title to her by law ; for that he, Britt, did not claim her as a slave, and *156believed that she was not, but that she was the offspring of a white woman aud a colored man. Britt frequently made similar declarations until he made his will and died, which was in 1836. Since that time the girl Mary Ann has lived with the defendant, Jones, but he did not claim her as a part of Britt’s estate, nor as the property of any person.

Upon the foregoing evidence the Court instructed the jury, that their first enquiry should be, whether the girl Mary Ann was born a slave or not, which depended upon Ihe fact, whether she was the child of a free woman or of a slave. If they should find that her mother was free, then their verdict should be for the defendants. But, if they should be of opinion, that she was the child of the woman Milly or of any other slave mother, so as thereby to be, herself, a slave, the next enquiry was, whether she was the slave ofthe testator Britt. And upon that point the Court proceeded to say, that the possession of Britt, as stated, was insufficient to vest the property in him, unless during the time he claimed a property in her; for, to have that effect, his possession must not only have been maintained for three years against all other persons, but must also have been maintained with a view to his own benefit; and, therefore, if the jury should be of opinion, that Britt did not claim Mary Ann as his slave, then also the verdict should be for the defendants. From a verdict, and judgment against him the relator appealed.

Heath, for the plaintiff.

Jordan, for the defendants.

Ruffin, C. J.

The directions were certainly right, if the jury believed the foundling to be the child of a free mother. But on the supposition, that her mother was a slave, the directions were clearly wrong, at least, as to the money claimed by the relator ; for, whether the donee *157of the money was a slave of the testator, or of Willis, or of another person, she was equally incapable of taking under a bequest, and the $200, therefore, resulted to those entitled to the surplus of the estate. The Court, however, holds, that the whole of that part of the instruction was erroneous, if in fact the child was a slave. For, the possession of Britt, and of the defendant, since Britt’s death, was, undoubtedly, adverse to Willis, to whom the testator refused to deliver the child upon demand. Indeed, the instruction supposes the possession of Britt to “ have been maintained against all other persons in other words, to have been adverse to all the world, who claimed the girl as a slave; and, yet, it was laid down further, that such a possession did not vest the title of the slave in the possession, if he believed her to be free and did not keep the possession with a view to his own benefit. The Court cannot adopt that opinion. For, the possession for more than three years bars the action of the owner under the act of 1715: and then the act of 1820, Rev. Stat. ch. 65, sec. 18, is, that the person, so in possession, and those claiming under him, shall be, deemed to have a good and absolute title to the slave, as against all persons so barred by the statute of limitations. — ■ When the owner is thus barred and loses his action and title, the negro must necessarily belong to the possessor; the status of the slave is not changed, but continues, and as a slave must belong to some one, and as no one can recover from the possessor, such slave must be deemed in law, the absolute property of the possessor. So the rule was laid down in the case of White v. White, 1 Dev. and Bat. 260, and it governs the present case.

Per Curiam. Judgment reversed and venire de novo*