#### WILLIAM H. SMITH and wife v. RICHMOND REID.

Where a person gets possession of the property of another, and claims it under an alleged title as his own, for any length of time, his possession is necessarily adverse to the rights of the true owner.

Where one was in the possession of the property of another, a feme, and alleged that he held as her bailee, he must establish the bailment by satisfac-ory proof, otherwise the usual and natural presumption, that he holds for *495Ms own use, will prevail. His want of title will not justify the implication of a bailment.

Where a father gave certain slaves, by deed, to his daughter, who was an infant, and so remained until after her marriage, during part of which time he denied the efficacy of the deed, and claimed to hold them as his own, his saying at the same time, they were, or would be his daughter’s, is no satisfactory evidence that he held as her bailee.

The rule, that one wrongfully holding the property of an infant, may be considered as the bailee of such infant, is for the latter’s benefit, and for the furtherance of his remedy, and the tort-feasor has no right to set it up for own his benefit against the infant owner.

Detinue, tried before Bailey, J., at the last Superior Court of Eowan.

The action was brought for several slaves contained in á deed, dated 13th of Majr, 1820. Jesse Holmes, the father of the plaintiff, drew up and signed, and had attested the deed, which is follows:

“ Know all men to whom these presents shall come, greeting, that I, Jesse Holmes, of the county of Eowan, and State of North Carolina, for and in consideration of the natural love and affection, which I have and bear unto my beloved daughter, Nancy Holmes, and for divers other good causes me, thereunto moving, have given and granted, and by these presents do give and grant unto the said Nancy Holmes, and the heirs of her body, a certain negro woman and child: Negro woman named Susana, aged eighteen, and child name Jack, aged two months, and the increase of the said woman, Susana, unto my said beloved daughter, Nancy Holmes, and the heirs of her body; and should the said Nancy Holmes die and leave no issue, or the heirs of her body, then, all my children shall be entitled to the gift after my death; and should I die before my daughter Nancy arrives at the age of twenty-one, then Moses Holmes to have possession of the said negroes until my daughter arrives at the age of twenty-one years, without paying any thing but her tax,; and my said daughter, Nancy Holmes, to have, hold, occupy and possess the said negroes and their increase, to the proper use of the said Nancy Holmes and the heirs of her body as above, forever, *496and I, the said Jesse Holmes, all and singular the said ne-groes and their increase, 1 o my said daughter, Haney Holmes, and the heirs of her body as abo.ve, against all persons what-sover, shall and will warrant, and forever defend by these presents. In witness whereof, I have hereunto set my hand and seal, this 20th day of May, eighteen hundred and twenty.

Acknowledged.

Witness, Jesse Holmes.”

J. H. FReebiug,

Ltrov EReeling.

At May Session, 1820, of Rowan County Court, is the certificate of the clerk, as follows:

“ I do hereby certify that the within deed was duly acknowledged in open court by Josse Holmes, recorded and ordered to bo registered.”

Haney Holmes, the donee, then resided with her grandmother, Haney Owen., about two miles and a half from the residence of her father, and continued so to reside until her grand-mother’s death, 31st December, 1827. After this, she continued at the same place with her aunt, Sarah Mock, until she intermarried with John Airey in August, 1829. While with her grand-mother, she was fed and clothed by her. She was not twenty-one years old when she intermarried with Airey, and her state of coverture continued until his death intestate, in April, 1854. She intermarried with the present plaintiff, Smith, since the commencement of this suit. The slaves sued for, are the descendants of the woman Susana, mentioned in the deed. It was shown in evidence, that Susana and her issue, were kept by Jesse Holmes in his possession, and worked on his farm for his own use and benefit, from the date of the deed until his death; except such as he gave off to his daughter, the defendant’s wife, and to some of his other children. After the-marriage of Haney to the former husband, Airey, Jesse Holmes gave by parol the slaves, Silla and Adeline, to his daughter, the defendant’s wife; the former, some twenty odd years ago, and the latter, some ten or twelve years ago. After the death of Jesse Holmes, to wit, in *497the spring of 1856, Jack, another descendant of Susana’s, went into the possession of the defendant, and all the slaves sued for, were in his adverse possession, at and before the time of bringing this suit. It was proved that there was a demand and refusal before suit brought; that on the 17th of April, 1845, on the occasion of making his will, Jesse Holmes being in possession of the deed of gift, caused the following to be written on it, “ this deed never was delivered to any person, and ain’t to have effect,” which writing he signed and had attested by two witnesses. There was no evidence of a delivery of the deed, except as above stated. Sarah Mock, a witness for the plaintiff, testified that on the first day of January, 1828, the day after Nancy’s grand-mother died, Jesse Holmes asked the witness to walk out with him, and said, I want you to see to Nancy, and if you keep her until she gets married, I will give, or have given, her, all that I got by her mother;it is mine, old Mr. Owen gave it to his children and their heirs, and it is mine; I intend to hold it as long as I live as my property, and at my death, Nancy shall have what I got by her mother. Basil Floyd, heard Holmes say, Nancy should have Susana and her children, but called them his negroes, when speaking of them, and worked them on his farm. Rachel Floyd, testified to the same effect. Nancy Barks, heard Jesse Holmes say, that Nancy would get Suke and her children. Anna Holmes testified, that Jesse Holmes had possession of the negroes up to the marriage, calling them bis own. After the marriage she heard him say, that she should not have them, because she had married Airey.

His Honor instructed the jury, that the execution of the deed of gift by Jesse Holmes, his acknowledgement of the same in Court, and having it recorded, together with the declarations as stated by Basil Floyd, Mrs. Floyd, and Mrs. Parks, were evidence of a bailment; and if the jury found there was a bailment, then, the declarations made to Mrs. Mock, in 1828, and the entry on the back of the deed, at the time of making his will, would not determine the bailment. *498Plaintiff excepted.. Yerdict for the defendant. Judgment and appeal. '

Fleming and B-. F. Moore, for the plaintiff.

Fowle and JBoyden, for the defendant.

Burttn, J.

The effort in the defense was to show that the possession of Holmes was not adverse to his daughter at the time of her first marriage, so as thereby to place the title in her husband, Airey, against whom the statute of limitations would operate and give the title to the defendant under the subsequent gifts from Holmes, and on that ground, the case was decided at the trial against the plaintiff. That the possession of Holmes was prima facie adverse, cannot be disputed. If the title had been in him, in fact, for any period, however limited, a possession under it would be necessarily adverse, that is, on a claim of the property as his own, and held for his own use. But the rule is not restricted to that case; for a wrong-doer may also have an adverse possession, and every conversion imports that the party was claiming a right and acting upon it, and every possession is presumed to be for the benefit of the possessor, and on his right, until the contrary be shown. If, indeed, one comes into possession as bailee, taking the thing as the property of another, and holding for the other, that presumption is rebutted. But it is necessary that one alleging such bailment, should establish it by satisfactory proof; otherwise the natural and legal presumption must stand. In this case, it was held that the execution of the deed of gift,, with the acknowledgement of it, together with the father’s subsequent declarations, that his daughter “should have the slaves,” or “ would get” them, or “ will get” them, notwithstanding simultaneous declarations by him, that “ the negroes were his,” and notwithstanding that on speaking of them, “he always called them his negioes,” as deposed to by the same witnesses, were evidence of a bailment; and that such bailment was not determined by his declarations, that the negroes were his for his life or absolutely.

*499The first observation the case suggests is, that there is here no express bailment — none created by contract between the parties, made with that view. It was supposed on the trial, that a bailment might be implied from the circumstances mentioned by his Honor. For the furtherance of justice, and for the sake of the remedy, there are cases in which an infant may be allowed to treat a person entering upon his estate as a guardian or bailiff, and to call him to an account in that character. But that is plainly for the benefit of the infant, and to give him the largest redress against the tort-feasor, and it can never be turned against the infant to defeat any other action he might have; much less his right. For doubtless, the infant might, in such cases, have likewise ejectment and an action for mesne profits, or trover, if it would better suit his purpose. It is but the common principle that torts may be waived and actions ex contractu brought in many cases; a fiction, that, like others in the law, must never be allowed to work wrong. Therefore, one who has sold another’s horse, and might be sued for money had and received, cannot object, for that reason, to the owner’s bringing trover, in which, peradventure the recovery may be larger, because the horse might be worth more than the price got. Admitting, then, the plaintiff might have treated her father as holding under and for her, (though it is not clearly seen how she could,) yet, that does not authorise the father to say now, that he held in no other way, there being no bailment directly proved. The Court is not able, indeed, to see how the facts enumerated afford any evidence, that there was even an implied bailment. If there had been an express one, it is admitted that mere declarations of the bailee would not determine it. But here, the question was whether, in fact, there was a bailment.

Upon that enquiry, all the declarations of the person in possession, as well as his dealings with the property, are rele-want and material evidence of the character of his holding, and one cannot help seeing that Holmes did, at all times, claim the right of property of some kind in the slaves, under which he held. From the framing of the deed it is probable *500that, atone time, he considered that gave or reserved' them to him for life. At another time, he may have supposed himself entitled to the absolute property, because the deed had not been delivered, and that is the more probable, seeing that he undertook to dispose of them amongst his other children. But throughout, he certainly claimed them as his, and asserted a right to them ; and even the very declarations relied on l>3r the defendant, imported that they were not then his daughter’s, but that-she should-have them, dr would get. them, that is, he intended she should-; for, at the same time he asserted that they were his own. ¡If he thus claimed them, his..posse.ssion was prima facie adverse, and was conclusively so, unless upon plain proof of a bailment,- or-by his direct admission — pf neither of which is there any evidence. As the case stands, the plaintiff’s title is clear, and she ought to.have had a verdict.

Pee Cueiam. Judgment reversed,, and venire de novo.