In 1826, William Baird married Mrs. Lucy Jones. They were (153) 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 persons as by the acts of descents and distributions of Virginia should be entitled to the same, exclusive of her said husband.
In 1846 William Baird sold William, a slave of about the age of 13, 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 this 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 a right to waive the tort and acquiesce in the sale of the slave, and allow Mr. Baird to retain the price, according to the term 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 of the slave William, which the law presumed to have taken place in the (154) lifetime 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. *Page 119
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. In Lewis v. Mobley, 20 N.C. 467, 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 Andrews v. Show, 15 N.C. 70, that the action of trover could not be maintained against the hirer of a slave for a year, who 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. Lewis v. Mobley, supra, 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 conversion 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 money had and received, can apply only when the owner has a right to the money at the time when the (155) tort is committed.
We have seen that a sale of a slave out and 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 and 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. *Page 120
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 recognized in Haughton v. Benbury,55 N.C. 337; Cheshire v. Cheshire, 37 N.C. 569, and McKeil v. Cutlar,57 N.C. 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 recognized the doctrine as (156) applicable to slaves as 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 worthy the inquiry 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.
PER CURIAM. Affirmed.
Cited: Isler v. Isler, 88 N.C. 580; Olive, 95 N.C. 490.