JOHN P. HOUSTON et al. Adm'rs., v. WILLIAM BIBB.
A, having a claim, with others, to certain slaves, joined in a suit for partition, wherein a certain slave is assigned to O. A became the administrator of Ms brother, and is sued as such byB for a debt, and in this suit, B alleges this slave to belong to tire estate of Iris brother, and it is so adjudged by the court; the slave afterwards gets back into the hands of A, and B sues for it as the administrator of one claiming under the title of 0; it was Held, that B is not estopped to assert title under C.
Where a defendant in an action of replevin, upon a recovery had against him, pays the damages assessed for a female slave, this is a judicial transfer of such slave, under Rev. Stat. ch: 101, sec. 5, but not of a child she had after the wrongful taking and during the pendency of the suit.
Nor does the adverse holding of the mother, in such case, for three years, create a bar, under the statute of limitations, as tó such child. As to it, the statute only runs from its birth.
*84This was an action of teoyee, tried before Peksobt, Judge, at the last Fall Term of Union Superior Court.
The plaintiffs produced, in evidence, a bill of sale for a negro woman namecl 'Ñeñe, from Jane Moore, to their intestaie^ N. Armfield, bearing date" 9th of "May. 1849. Also, the record of a suit, by petition, in the County Court of Union, filed by James Moore and wife Catharine, Elizabeth Cams and Jane Moore, for the partition of several slaves, among whom was the woman Pene, in which it appeared, that this slave, Pene, liad been allotted to Jane Moore, and that the report of the commissioners was confirmed at April term, 1848, of the said court. They then proved that the slawe Pene was taken from the possession of their intestate in September, 1849 ; that an action of replevin ivas instituted at the fall term, 1849, of Union Superior Court, against David ancl the said James Moore, for the negro Pene ; that a good and sufficient replevin bond was given by the said David and James Moore, and the possession retained by them ; that the aclion of replevin was not decided until the August term, 185L of the Superior Court, and during its pendency, the slave in question passed from the possession of the Moores into that of the "defendant Hiblü They proved the descent of IshañiTcnd Lewis, (the slaves for the conversion of whom this action was brought,) from the woman Pene, and a demand and refusal before the action "was commenced,
The defendant produced, in evidence, a bill of sale to him, for the slave Pene, from one 0. Austin, dated 6th day of January, 1851, and another for the same negroes from David-Moore to 0. Austin,'dated 3rd December, 1850, and another from James Moore, administrator of Milton Moore, to David Moore, for the same, dated-A. D. 184-.
The defendant produced, in evidence, the record of a suit, in the Superior Court of Union county, determined at May term, 1849, in which oho of the plaintiffs, John P. Houston, in his own right, was plaintiff, and James Moore, administra*tor of Milton Moore, was defendant, and proved that it was insisted, by the plaintiff in that suit, that the negro Pene liad *85belonged to Milton Moore, and was assets in tbe bands of bis administrator, James Moore, and that it was so decided by tbe Court. lie proved that James Moore obtained letters of administration on the estate of Milton Moore, at January term, 1848, of tbe County Court of Union.
He proved by Jane Moore and Mrs. Cams, that at the time of tbe execution of tbe bill of sale, by Jane Moore to Arm-field, a controversy had arisen in regard to tbe title to tbe negro Rene, between tbe said Jane Moore and Janies Moore, tbe administrator of Milton Moore, the latter claiming her as a part of the assets of bis intestate’s estate; that no money was paid, or note given at that time, and that no consideration was given, except that Armfield was to defend the lawsuit, and if he lost it, was to pay her nothing, but if be gained it, was to return her tbe negroes, or others as good ; that afterwards, he gave her bis note for tbe negroes, as be said, to show in evidence in court, but with tbe understanding that it was not to be paid, and that it was destroyed by Arm-field soon after court.
It was contended on tbe part of tbe defendant, that tbe plaintiff could not recover tbe slave* Lewis, because be (defendant) bad bad three years’ adverse possession of tbe mother before be was born, and that plaintiff was barred by tbe statute of limitations ; and further, that tbe plaintiff could not recover either of the slaves :
1st. Because tbe plaintiff, John P. Houston, was estopped to deny tbe title of James Moore, as administrator of Milton Moore, to tbe slave Pene, and, of course, to her offspring born after the estoppel commenced.
2nd. Because the bill of sale, given by Jane Moore to the plaintiff’s intestate, was founded upon an illegal consideration, and passed no title to tbe latter.
3rd. Because the recovery in the action of replevin, vested tbe title to Pene in David Moore and James Moore, which bad relation to tbe taking possession of tbe said slave, and that tbe title to her offspring followed that of the mother.
Iiis Honor charged tbe j my, in favor of tbe plaintiffs, upon *86these several points, upon each of which the defendant excepted.
Verdict for the plaintiffs. Judgment and appeal.
Wilson, for plaintiffs,
cited 4 Jones’ Rep. 522.
Ashe, for the defendant,
cited, on the ]3oint of the estoppel, Armfield v. Moore, Bnsbee’s Law, p. 157; Weare v. Burge, 10 Iredell’s Law, 109; Montgomery v. Wynns, 4 Dev. and Bat. 527 ; as to the statute of limitations, Gotten v. Bams, 4 Jones’ Law Rep. 410, and Woods v. Woods, Jones’ Eq. vol. 2, p. 420; and on the point of illegal consideration, he cited 1 Hawkins’ Pleas of the Crown, p. 249; Blackstone’s Coni, vol. 4, p. 134, and Ohitty on Contracts, p. 524.
Pearson, J.
1st. The fact that the plaintiff Houston, as a creditor of Hilton Moore, in an action against the defendant James, as administrator of Milton, charged him -with the value of the slave Pene as assets, does not create an estoppel in this action, for it is not inconsistent with the fact, that the defendant James, by the proceeding for a partition, had lost his title as administrator, by force of an estoppel created between him and Jane Moore, under whom the intestate of the plaintiffs derived title.
2ndly. The transaction by which the plaintiffs’ intestate acquired title to the slaves from Jane Moore, might have been tainted with champerty, and for that reason, illegal and of no effect, bn tv there is no evidence of such champerty or illegal consideration. The testimony of Jane Moore and Mrs. Cams does not establish the fact. They swear, “ at the time of the execution of the bill of sale, made by Jane Moore to Arm-field, a controversy had arisen in regard to the title to the negro Pene, between the said Jane and James Moore, the administrator of Milton Moorethe latter claiming her as a part of the assets of his intestate’s estate; that no money was paid, and no note given at that time, and that no consideration was given, except that Armfield was to defend the law-suit, and if he lost it, was to pay her nothing, Tout if he gained it, was to
*87
return her the negroes, or others- as good; that afterwards, he gave her his note for the negroes, as he said, to show in evidence in court, but with the understanding, that it was not to be paid, and that it was destroyed by Arrnfield soon after court.”
This evidence may tend to prove, that Arrnfield cheated Jane Moore out of the slaves, but it has no tendency to prove ■ that lie was guilty of champerty ; “ He was to defend the law-. suit; if he lost it, he was to pay nothing, but if he gained it, • was to return her the negroes, or others as good!” If this be , so, it shows that he was extremely liberal; but in truth, the • testimony is not intelligible, and docs not support the allega-. tion that he undertook to defend the law-suit, and in consul- • eratñon thereof, was to receive a part of the subject m cont/ro-' versxj.
3rdly. The recovery in the action of replevin, as the law then provided, was the value of Pene at the time of the trial, “ with a condition to be discharged by her surrender.” Rev. Stat. ch. 101, sec. 5. The two slaves, now in controversy, were born pending that action. We can see no ground to support the position that this recovery related back to the» time of the wrongful taking, so as to affect the title to the* children ; their price has not been taken into the account, so there could be no judicial transfer of themh
The slave Lewis was born within less than three years before the commencement of the action. There was no cause of action with respect to him until his birth; so the statute of limitations could not apply. The adverse possession of the mother cannot affect the question. The statute did not begin to run until there was a cause of action in respect to him.
Pee Cueiam, Judgment affirmed.