#### THOMAS JONES, Trustee, v. JOHN BAIRD et al, Executors of WILLIAM BAIRD.

The doctrine which allows the owner of a personal chattel, wrongfully con- - verted by a sale, to waive the tort and bring assumpsit for money had and received, can only apply where the owner has a right to the money at the time when the tort is committed.

Whether the doctrine of the presumption of the death of a person, arising from his having gone to parts unknown, and not heal’d from in seven years, applies to slaves, guere ?

Action of assumpsit for money had and received, tried before Caldwell, J., at the Spring Term, 1859, of Person Superior Court.

*153In 1826, Wm. Baird married Mrs. Lucy Jones. They were both persons of fortune, and before the marriage, joined in executing a marriage settlement, in which it was stipulated that after the death of either of them, the survivor should have no right to any portion of the property of the decedent in consequence of such marriage, and the said Lucy conveyed all her estate, including a number of slaves, to the plaintiff, as trustee, upon the following declared trusts, viz., in trust for the said Lucy until the marriage, and then, that he should permit the said William Baird, during their joint lives, to cultivate the land therein mentioned, and use the slaves and other personal property, and have, receive, take and enjoy the crops, hires, issues, rents and profits to and for his own use and benefit, and after the decease of such one of them as should first happen to die, then upon trust, that he, the said trustee, should assign, transfer, and deliver over all to the said Lucy, in case she survived the said William, but if she should be the first to die, then to such person as she should appoint to receive the same, and in the absence of such appointment, to such person as by the acts of descents and distributions of Virginia, should he entitled to the same, exclusive of her said husband.

In 1846, William Baird sold William, a slave, of about the age of thirteen, a child of one of the female slaves conveyed by Mrs. Baird to her trustee, the plaintiff, to one Thomas Woods, then and now a resident of Person county, at the price of $325, which was considered to be his full value. This slave was, during the same year, taken by Woods to the State of Alabama, and sold there, and has not been since heard from.

William Baird died in 1857, and a demand was made of defendants, as his executors, before the suit was brought.

The plaintiff contended that he had aright to waive the tort and acquiesce in the sale of the slave, and allow Mr. Baird to retain the price, according to the temas of the marriage settlement, during his life, and then to recover the same in this action.

The defendants contended that, in consequence of the death *154of the slave, William, which the law presumed to have taken place in the life-time of Mr. Baird, the plaintiff had lost all right or claim to the price for which he sold. They also relied on the statute of limitations, which was pleaded. A verdict was taken, by consent, in favor of the plaintiff, subject to the opinion of the Court upon the question, whether, in law, the plaintiff was entitled to recover, with power to set it aside and enter a nonsuit, in case he should be of opinion against the plaintiff.

Afterwards, being of opinion that the plaintiff had lost all remedy against the defendants, by the death of the slave, the Court directed a nonsuit to be entered; from which plaintiff appealed.

Norwood, for the plaintiff.

Graham, for the defendants.

Battle, J.

In the case of Lewis v. Mobley, 4 Dev. and Bat. Rep. 323, it was held that where the purchaser of a slave, from a tenant for life, sold him out and> out during the life of the tenant for life, the ultimate owner could not maintain trover against the seller for the alleged conversion, because, during the life of the tenant for life, his right of possession had not accrued, and after the death of such tenant, there was no act of conversion. It had been previously decided in the case of Andrews v. Shaw, 4 Dev. Rep. 70, that the action of trover could not be maintained against the hirer of a slave for a year, who liad sold him out and out during the year, if the action had been commenced during the term of the hiring ; because the plaintiff, in trover, must have both, the right of property and of present possession. The case, first referred to, of Lewis v. Mobley, is but an extension of this doctrine, and shows that the right of property, and of immediate possession, must exist at the time when the act of oonv&rsion occurs. For a similar reason, we think that the doctrine, which allows the owner of a personal chattel, wrongfully converted by a sale, to waive the tort and bring an action of assumpsit for *155money had and received, can apply only when the owner has a right to the money at the time when the tort is committed.

Wo have seen that a sale of a slave out cmd out by a tenant for life, is not an act of conversion at the termination of the life-estate, and it would seem to be a necessary consequence, that the action of assumpsit for money had and received, which depends -upon the waiver of a tort, could not then be maintained against the executors of the tenant for life; because there was not then, any tort to be waived.

Such is the conclusion, to which we have been led, upon the ground, taken by the counsel, that the testator of the defendants was a tenant for life, of the slave, which he sold, with a remainder of the absolute interest in the plaintiff. But in truth, the plaintiff'had the legal estate in him as trustee, all the while, and might have brought an action of trover, or assumpsit, for money had and received against the testator immediately after the sale of the slave. Such action ought, however, to have been brought within three years after the cause of it accrued, and the one which was brought was, therefore, barred by the statute of limitations, so that the case of the plaintiff'is not altered, for the better, by this view’ of it.

We, therefore, concur with his Honor, that the action cannot be maintained. But we do not undertake to say that the plaintiff has lost all remedy, either by the presumption of the slave’s death, or by any other cause. It is a matter for his consideration, whether he cannot, by a bill in Equity, follow the fund, upon the principle recognised in Haughton v. Benbury, 2 Jones’ Equity, 337; Cheshire v. Cheshire, 2 Ired. Eq. 569, and McKeil v. Cutlar, 4 Jones' Eq. 381.

This view of the case, makes it unnecessary to notice the argument, strongly and ably urged by the counsel for the plaintiff, that the doctrine of the presumption of the death of a person, arising from his having gone to parts unknown, and not heard from for seven years, or more, ought not, for obvious reasons, to be applied to slaves. It must be admitted that our courts have recognised the doctrine as applicable to slaves *156as well as to free persons, but it does not appear that the attention of the Court was called to the supposed distinction in any of the cases contained in our Reports. See Lewis v. Mobley, and Haughton v. Benbury ubi supra. It may be well worth the enquiry, whether the doctrine in question, as applied to slaves, is so fixed in our law, by judicial recognition, that it cannot be changed except by Legislative action, and if such action be necessary, whether it ought to be invoked.

The judgment of the Superior Court is affirmed.

Per Curiam,

Judgment affirmed.