#### T. J. FRESHWATER AND WIFE v. CALEB L. NICHOLS et al.

As against wrong-doers and trespassers, a paramount right of property is not necessary to support an action of replevin, but a naked possession, or a right of possession coupled with the beneficial interest, will do.

This was an action of replevin, tried before Saunders, J., at Fall Term, 1858, of New Hanover Superior Court.

The slaves in controversy originally belonged to one Caleb Nichols who by his last will and testament dated in 1797, bequeathed them to his wife for life, and then over to such of his children as should survive her. The testator, Caleb Nichols, left one child, the defendant, Caleb L. Nichols. After the death of the testator, Unity Nichols, his widow, married a second husband, and Mrs. Freshwater, the wife of the plaintiff in this suit, is the offspring of this marriage.

The plaintiffs offered in evidence a deed of gift to Mrs. Freshwater, of which the following is a copy:

“ Know all men by these presents, that we, the undersigned, do hereby agree and firmly bind ourselves to the following articles, to wit: that we, the said John Cruise and Unity Cruise and Caleb L. Nichols, do hereby agree to give unto Mary Jane Lee, the following property for her and her heirs, Unity Cruise’s natural life excepting, Orrice, Thomas and Ritty, three negroes, which we, the said John Cruise, Unity Cruise and Caleb L. Nichols, do defend all other claims made by us hereafter, whereof, we set our hands and seals, this 12th day of May, 1819. (Signed,)

Witness, John Cruise, [Seal.]

Daniel McClammy,

her

A. M. Swann. Unity M Cruise,[xSbai.]

mark.

Caleb Loper Nichols, [8eal?¡

Unity Cruise, the signor of this instrument, is the original Mrs. Nichols, and John Cruise is her husband.

The donee in this instrument, Mary Jane Lee, was married i.n 1826 to Thomas O’Neal, and he, in pursuance of articles *252signed before marriage, executed a conveyance of the slaves in question, Orrice, Thomas and Ritty, and their descendants, to the trustees, Elihu Larkins and John Walker, in trust for the said O’Neal and wife, for their lives, and the life of the survivor, then over to their children, should they have any, in such proportions as the surviving parent might by will direct, but in default of issue, then such other person as the said surviving parent might by will direct. O’Neal died in the year 1849, and left his wife, the plaintiff, him surviving, but left no child. His wife administered on his estate.

Plaintiff's then offered a deed of release from Walker, the surviving trustee, to Mrs. O’Neal, then a widow, dated in 1854, releasing to her all light and title in the slaves. Larkins, the other trustee, was then dead, and his personal representative did not join in the release, being then unknown.

Unity Cruise, the mother of the said Mary Jane, married one Holland, who was her last and fourth husband, whom she survived; and, upon her death, her daughter administered on her estate.

A witness of the plaintiff proved that the negroes sued for, all of whom with the exception of Orrice, were the children or grand children of Ritty, were in the possession of Mrs. Holland, as far back as she could remember, say fifteen or twenty years, and that witness was about thirty-two years of age; that the negroes remained in the possession of Mrs. Holland until her death, which happened in 1847 or ’48; that she several times said she only claimed them for her life, and that at her death they were to go to her daughter, Mary Jane. After tiro deatli of Mrs. Holland, the negroes went into the possession of the plaintiff, Mary Jane, and she held them for more than two years, at the end of which time they were taken from her by the defendants, who kept them for three or four days ; an action of replevin was then commenced by the present plaintiff, Mrs. O’Neal, having iu the mean time, become Mrs. Freshwater, and, in pursuance of the usual proceeding in such actions, the negroes in question, were taken from the defendants by the sheriff, and delivered to the plaintiffs. That suit termina*253ted in 1855 by a nonsuit, and the negroes were put in jail for a few days, after which, being turned out, the defendants carried them off, when the writ in this case was issued, and the slaves restored to the plaintiffs.

The defendants contended: 1st. That by the marriage contract, the title was shown to be in the trustees therein named.

2ndly. That the release from John Walker did not operate, because of an adverse possession in the defendants at the time of its execution, and that Walker had lost his title at the time of the execution of the release.

3rdly. That if it did operate, the plaintiff could not recover, because the personal representative of Larkins, the other trustee, did not join in the release.

Jthly. Plaintiffs claim was barred by the statute of limitations.

The Court charged the jury that the plaintiffs were entitled to. recover, reserving the question of law presented by the defendants exceptions. The jmy found a verdict for the plaintiffs, and the Court, upon consideration, gave judgment for plaintiffs. Defendants appealed.

Wright and Strange, for plaintiffs.

E. G. Haywood and London, for defendants.

Manly, J.

The deed of gift, under date of 1819, from John Cruise, Unity Cruise and Caleb L. Nichols, to the plaintiff, then Mary Jane Lee, was sufficient to pass the title to the slaves now in controversy.

This deed has been once before in this Court for construction, (Nichols v. Holmes, 1 Jones’ Rep. 360,) and was then upheld as a valid conveyance of the slaves embraced in it. Indeed, upon an examination of the points made on the trial of the case below, we do not find that the question, on the legal effect of that deed, was renewed. It may be assumed, therefore, that the title to the grantee, by virtue of this deed, was originally valid.

*254Unity Cruise, the mother, died in 1847. Mary Jane Lee married, first, Thomas O’Neal, in 1826, who died in 1849. The plaintiff, Mary, is administratrix, both of her mother and her first husband. She became possessed of the slaves immediately after the death of her mother, and has continued in possession (with short intervals stated in the record) until the present time.

Thus, prima facie, a right of property in the plaintiff, and a consequent right of possession seems to be clear. The points in defense, made below, rest upon an alleged outstanding title, under a settlement made by the first husband upon trustees for his wife, dated in 1826. . It will be found by a reference to the facts, bearing on this matter of defense, that all that is outstanding of this trust title, is that which may be in the representative of one of the trustees, Elihu Larkins, who died about 1830, and whose representative is not known.

The matter alleged to defeat the operation of the release from the other trustee, Walker, (viz., that there was an adverse possession at the time,) is without foundation to rest upon. The release is made in 1854, to Mary Jane O’Neal, who was at the time in possession of the slaves, claiming them in her own right, and we can see no reason why the instrument did not operate to convey the interest of the trustee and vest it in Mrs. O’Neal, so that as we have before said, there was nothing outstanding of the legal title, except what remained in the unknown representative of Larkins.

We are decidedly of opinion, this outstanding right cannot be made available, by the defendant, as a bar to plaintiff’s recovery.

Defendants do not in any way connect themselves with the title of Larkins, and appear to be mere trespassers and wrongdoers. As against such,'proof of a paramount right of property is not necessary; a naked possession, certainly a right of possession, (connected, as it is in our case, with a beneficial as well as legal interest,) will do. In Armory v. Delamere, (1 Strange, 504, S. C. Smith’s leading cases, 151,) it was apparent, from the evidence, that the true right of property was *255in a third party, but as this property was not connected by authority or transfer with the defendant, judgment was given against him. And in Rogers v. Arnold, (12 Wendall 87) the same law was applicable to replevin.

This view of the case disposes of the exceptions to the ruling below, upon the first, second and third points of defense. The remaining one, arising upon the plea of the statute of limitations, we do not perceive the force of. There are no proofs for it to rest upon. There has been no possession in the defendants, w*hich could give title or bar a right, and none in any body else that could inure to their benefit.

We think, therefore, the judgment of the Superior Court is correct. The needful rights of possession, and property to support this action as against mere wrong-doers, are found in plaintiffs, and thejr are entitled to their judgment.

Per Curiam,

Judgment affirmed.