#### JOHN PAXTON vs. AMBROSE M. RHEA, EX'OR & AL.

A. being entitled to one-sixth of certain undivided negroes, and B. to two-sixths of the same, it was agreed between them by parol, in the year 1803, that if A. would permit B. to use and enjoy his one-sixth during B’s lifetime, A. should be entitled at B’s death to the whole of the three-sixths. B. accordingly kept A’s one-sixth till his death- — Held that this was a valid contract — that, being executory, A. did not convey an absolute interest in his one-sixth to B. by giving him a life estate, and that suit being brought within three years after B’s death, the statute of limitations was no bar to the recovery.

This cause was removed for hearing to the Supreme Court from Mecklenburg Court of Equity, at Spring Term, 1844.

The following facts were disclosed by the pleadings and proofs:

The plaintiff’s father, James Paxton, soon after mailing his will and leaving his wife, Mary Paxton, executrix, died in the year 1781. By the said will the testator bequeathed as follows : “I give and bequeath to my child that is not *249'born my sórrel mare, together with the first child that the negro wench Sive does have, if she should have any.” The testator’s wife, Mary, was, within six months from his death, delivered of a son, who was named James Paxton, Junior; the slave Sive, about the same time, was delivered of a female child named Rose. Mary Paxton, the widow, after-wards married Reuben Boswell, and by him had three children, Ambrose, Mary and Esther. In the year 1798, James Paxton, Jun., died intestate, and without issue. His next of kin were his mother, the plaintiff, Esther the wife of Alexander Gray, and the three children, then living, of Reuben Boswell by his mother. Alexander Gray administered on the estate of James Paxton, Jun. Reuben Boswell in right of his wife was entitled to one-sixth of the personal estate of James Paxton, Jun., and he purchased Alexander Gray’s one-sixth in right of his wife Esther. The plaintiff was entitled to one-sixth as his share. The bill states that Reuben Bozwell, in the year 1803, entered into an agreement with the plaintiff, that if he would not then claim a division of the slaves, Rose and her increase, but would let him, Boswell, have the plaintiff’s undivided interest in the said slaves, for and during the lives of himself and wife, (the plaintiff’s mother,) that then he, the plaintiff, might have and hold in his own right the interest in three-sixths of the said slaves. The agreement, the bill states, was firmly entered into by the plaintiff and Boswell. And that Boswell, tip to his death, alwas admitted it to be obligatory on him; and that he, Boswell, took and kept possession of Rose and her increase, under the said agreement; that the plaintiff, several years ago, moved to the western country, and Boswell, who resided in Mecklenburg county in this State, in the month of August, in the year 1836, made his will, and bequeathed the whole of the said three-sixths which he then held in Rose and her increase to his grand-children, with a view to defraud the plaintiff, as the bill states, of his rights, and soon after died that Rhea, who had married one of Boswell’s daughters, was left the executor: that he qualified and took possession of *250the slaves Rose and her increase, and has delivered them over to the other defendants, the legatees under R. Boswell’s will. The bill prays that the said slaves be decreed to be brought forth by the defendant and divided, and that three-sixths of the same may be decreed to him; and there is a prayer for general relief. The defendants have answered and (except Gray,) admit all the allegations in the bill, except the agreement therein stated to have been made by Reuben Boswell, with the plaintiff and with Alexander Gray. The defendant A. Gray admits the allegations in toto in the bill. The other defendants deny the said agreement, and pray that the plaintiff be put to full proof of it. They also allege that, if such an agreement had ever been made, it amounted to a conveyance for life of the slaves Rose and her children, and that, in law, would be a conveyance of the entire interest; as a remainder in slaves at that time could not have been created by contract. The defendants insist, likewise, that if the charges in the bill be true, the plaintiff had his remedy at law. The defendants, except Gray, state in their answer, that Reuben Boswell had possession of Rose and her increase for near forty years, claiming them as his own property. They insist on length of time, and also on the statute of limitations. They also insist that all and every kind of demand, which the plaintiff ever had against Reuben Boswell was discharged by the sale to the plaintiff of a slave by the name of Alexander, in the year 1823. There was a replication to the answer, and depositions being taken, the cause was set for hearing.

Osborne for the plaintiff.

Alexander <$f Caldwell for the defendants.

Daniel, J.

The parties have taken depositions, and set down the cause for a hearing, and it now comes on to a hearing. The testimony of Robert Porter expressly establishes the agreement as stated in the bill, to wit, that Boswell and his wife were to have the slave Rose and her increase during *251their lives, and then the said slaves were to be the property of the plaintiff. This testimony of Porter is supported by that of John Stile and John Jones, who depose that they had frequently heard R. Boswell say, that after the death of his wife and himself, Rose and her increase would be the property of the plaintiff — and that he, Boswell, made such remarks within a year or so before he died. And there is no evidence in .the cause that Boswell ever set up an absolute right to Rose and her children. There is proof that Boswell had, in the year 1803, purchased Alexander Gray’s share, and that he then agreed, in consideration, that the plaintiff then let Boswell have the plaintiff’s share for the life of Boswell and his wife, or the survivor of them ; that after the death of himself and wife, Rose and her increase should be the property of the plaintiff. Secondly, the contract between the plaintiff and Boswell, being executory in its nature, and not to be completely executed until the death of Boswell and his wife, the rule of law insisted on by the defendants does not apply, to wit, that a conveyance for life of a chattel was a conveyance of the whole interest. Thirdly, the act of limitations does not bar, as it appears that R. Boswell made his will in August, 1836; and this bill was filed at February. Term, 1839. Fourthly, we are of the opinion, that the slave Alexander was conveyed in 1823 by Boswell to the plaintiff, but not in satisfaction of the demand now set up by the bill. Alexander was not one of the children of Rose, nor had the plaintiff then any right to press this demand upon Boswell, and there is proof by the witness, Porter, that the plaintiff and a slave he owned named Sambo, before he left this State for Tennessee, worked for Boswell for several years. There is a witness (A. Spratt) examined for the defendants, (his daughter married the son of R. Boswell, andhischil-. dren are some of the legatees, under R. Boswell’s will of these very -slaves;) he says that he and the plaintiff had a conversation, when he came in from Tennessee to commence this suit, and he asked the plaintiff if he had not received a negro boy of A. Boswell in satisfaction of this claim; the *252plaintiff said, tbat he had got a negro boy in satisfaction his claim, as the witness understood. And he further said, that he would then have signed any instrument of writing, if any had been drawn up, in full satisfaction of his claim against Reuben Boswell, an d that he never would have troubled the defendants if hehadnotbeenurgedtoit by his son and son-in-law. We think that this witness must be mistaken, if he understood the claim spoken of by the plaintiff in that conversation, to be this claim; for in the year 1823, when the boy was purchased for $300, as is expressed in the bill of sale, the one-half of the price of Rose and her increse (upwards of four) must have been considerably larger — the plaintiff, if he talked of a claim at all, must have meant some claim he then had a right to urge against Boswell; there is no writing here exhibited evidencing exactly what claim was paid when the hoy Alexander was sold. And upon the other point in his evidence, it may be true, that the plaintiff, an old man residing in Tennessee, said that he would no't have brought this suit in equity, if he had not been urged to it by his son and son-in-law; but that does not prove that he had no right to commence such a suit. He did commence the suit — and and all the circumstances shew that Pratt has intentionally mistated this conversation, or that he is mistaken in what was said and meant at the time by the plaintiff. There must, therefore, be a decree declaring that the plaintiff is entitled under the agreement between him and Boswell to one half of the slave Rose and her increase, and to have partition made of them; and there must be a decree, that the slaves be produced by the parties in whose possession they are, for the purpose of partition, and that a division be made accordingly; and for an account of the profits, with just allowances to the several defendants, if the plaintiff choses to have such account.

Per Curiam, Decree accordingly.