#### Vass and wife and others v. Hicks.

j V From Granville. J

Previous to the act of 1806, requiring- gifts of slaves to be in writing, a mother made a parol gift of a slave to her children, reserving to herself a life estate in the slave. She continued in possession of the slave more than three years after the gift, having in the mean time married, and within three years after her death, the children brought detinue for the slave against the husband. They are entitled to recover; for

Although the reservation of the life estate was inconsistent with the gift; yet, if the possession during life according to the reservation was by the consent of the donees, such possession was not adverse, and the statute of limitations would not bar their claim.

The reservation being void, the donees could, at any time after the gift, in the life time of their mother, have made a demand, and upon refusal to deliver the slave, brought suit and recovered.

'Chis was an action of detinue for negro slaves, which belonged to the Defendant’s wife before her intermarriage with the Defendant. The Plaintiffs were her children by a former husband, and claimed the slaves under a parol gift, which they alleged she had made to them previous to *494the act of 1806, requiring gifts of slaves to be in writing. The only evidence of tiie gift was the declarations of the Defendant, that he had persuaded the mother of the Plaintiffs, before their intermarriage, to give the slaves to her children; that she had given them, but reserved to herself a life estate in them. The Defendant had been in possession of the slaves more than three years, but this suit was brought within less than three years after the death of his wife. The Defendant pleaded the general issue and statute of limitations. Upon the trial, the Court charged the Jury, that the reservation of the fife estate in the slaves at the time of the gift was void, and the Plaintiffs might have sued for the negroes at any time after the gift; and that, as their cause of action accrued at the same time with their right to the slaves, the statute of limitations began to run from that time, and more than three years having elapsed, the Plaintiffs were bound by the statute. The Jury found a verdict for the Defendant, and a rulo for a new' trial was obtained, on the ground of misdirection by the Court. The rule was discharged, and the Plaintiffs appealed.

Hall, Judge,

delivered the opinion of the Court:

I agree that the reservation of an estate for life in the slaves was inconsistent with'the gift, because, in making the gift, there must have been a delivery of the slaves to the donee, and that delivery left no possession in the donor; and to acquire possession afterwards would be against his own delivery. If, however, he afterwards became possessed of the property by consent of the donee to hold it for life according to the reservation, that possession was held by virtue of such consent, and not under the reservation made at the time of the gift. Suppose, however, that the reservation was void, but that the Defendant held under it, believing, as did the Plaintiffs probably, that he had a right to do so; although the Plaintiffs might have brought their action and recovered the pro*495perty, yet the Defendant’s possession was not adverse; he held by consent and at the will of the owner: and although t!ie mother might Jive many years afterwards, the statute of limitations would not begin to run.

The statute began to run from the- time a demand of the negroes was made by the Plaintiffs and a refusal to deliver them up by the Defendant. That refusal was evidence of an adverse possession, but no evidence of such possession anterior thereto was adduced. Although, during the life of his wife, the Defendant exercised acts of ownership over the negroes, he did what he had a right to do, as he supposed, under the reservation. If so, it cannot be considered as evidence of an adverse possession, so as to let in the statute of limitations.

Agreeably to the principles here laid down, the Plaintiffs were entitled to recover in the case of Duncan and wife against the administrator of Parish Self. That was the case of a gift-of a negro by Defendant’s, intestate, to his daughter, one of the Plaintiffs, reserving to himself a life estate, it was decided in this Court, at July term, 1810. Whether in that case the reservation was void, was not the question before the Court, although there was an opinion intimated uoon it. That case was not argued by counsel. The rule for a new trial must be made absolute.