Detinue for a slave named Sukey, and the pleas are non detinet and the statute of limitations. Upon the trial the facts were these: *Page 125 Solomon Arnold was owner of the slave, and on 27 July, 1842, he made a deed of gift of her to his son, Howell Arnold, with a reservation for the life of Mary Arnold, the wife of Solomon, which deed was duly attested, proved, and registered in August, 1842. Howell Arnold died in November, 1843, without having the slave in his possession, but she was held by Solomon until his death, which happened in October, 1844, and then the present defendant, who is the widow of Howell, immediately took the slave into her possession and hath held her ever since, claiming her as her own. Solomon Arnold left a will, made 12 March, 1838, in which he appointed his three sons, William S., Henry, and Howell, executors; and it was proved in January, 1847, and Henry Arnold, the plaintiff in this suit, then qualified alone as executor. In the will the testator bequeathed the slave, Sukey, to his wife, Mary, for her life, and afterwards to his two sons, William S. and Howell; and the said Mary died in April, 1846. In August, 1847, the plaintiff demanded the slave from the defendant, but she refused to give her up, and claimed the property in her; and in January, 1848, this action was brought. On the part of the plaintiff evidence was given that at the time Solomon Arnold made the deed of gift to his son he was of unsound mind and had not capacity to make a contract; and on the other side evidence was given that the donor was then of sound mind and had capacity to make the deed. The court instructed the jury, amongst other things, that, supposing Solomon Arnold not to have had capacity to make the deed of gift, and that it was for that reason not effectual to pass the title of the slave to his son, Howell, then the plaintiff was entitled to recover, notwithstanding the defendant had the adverse possession of the slave from (176) October, 1844, claiming and using her as her own, for the reason that the plaintiff's action and right to the slave were not bound by such possession, because the plaintiff did not qualify as executor until January, 1847, and brought his suit within one year thereafter. The jury found for the plaintiff, and the defendant appealed from the judgment. The principle of the instruction is that an executor gets no property in his testator's goods, and cannot take them nor sue for them, before getting letters testamentary. But the Court understands the law to be settled to the contrary. Although in a case of intestacy a person, though entitled to the administration, cannot intermeddle in the goods before taking administration, except for special purposes allowed by statute, yet the writers on the law of executors agree in stating that an executor may, immediately upon the death of the *Page 126 testator, take possession of his effects and bring suit, though he cannot declare before probate, for the technical reason that he must makeproffert of his letters. And that position is sustained by ancient and undisputed judicial opinions. In Graysbrook v. Fox, 1 Plow., 280, Dyer cites a case in which an executor before probate commanded A. to take certain goods of the testator out of the possession of B., and afterwards the executor was allowed to refuse to administer, and administration was granted to B.; and he then brought trespass against A. for the taking, and it was held that the justification by the command of the executor was good. And he lays it down as clear law that executors are not called executors in respect only that they actually execute, (177) but in respect that they may execute; for the death of the testator makes the testament, and by his death the property of the goods which was in him is cast upon and vested in the executor, who may, therefore, before probate, take the goods and dispose of them; and he says further that, for that reason, if any one take the goods before the executor seizes them, he shall have trespass or replevin against him before probate. In Wankford, v. Wankford, 1 Salk., 381, Lord Holt repeated the same doctrine, that, before probate, an executor may seize the goods. As the plaintiff then might, as the owner of the slave, have had redress by taking her at any time after the death of the father, or by bringing suit for her, the adverse possession of the defendant for more than three years after the plaintiff's right accrued and action arose bars him. An argument might perhaps have been made against the truth of this position in our law, founded on the prohibition in the act of 1715, ch. 10, sec. 4, under a penalty of £ 50, of any person entering upon the administration of any deceased person's estate until obtaining administration or letters testamentary. But whatever influence that provision might once have had, it cannot have now, because in the revision of 1836 the Legislature, seeing the frequent convenience and indeed the occasional necessity for the executor's doing some things before there was time to prove the will, modified the provision by confining it to the administration of an intestate's estate before obtaining letters of administration. Rev. Stat., ch. 46, sec. 8. It is true, also, that it is held with us that where two or more executors are appointed, those only who qualify need join in an action as plaintiffs. But that does not affect the rights of all the executors until one shall prove the will; and when he does so, then, of course, he is executors by relation from the beginning, to the exclusion of the others until they also qualify. So there was no incapacity in the plaintiff to assert his title to the slave, and, consequently, he is now barred.
But it was further contended at the bar that the defendant's (178) possession was not adverse, but that, upon the hypothesis in the *Page 127 instruction of the donor's incapacity, which the verdict affirms, the deed was void, and the defendant held as bailee, as if the gift had been oral from the parent to the child. Where an oral gift of a slave is made to a child it may or may not, according to an express provision of the act of 1806, be an advancement at the election of the parent at any time during his life, and, therefore, of necessity, the relation between them during that period is that of bailor and bailee, unless it be terminated by a demand and refusal, in which last case the possession of the donee becomes adverse; that is, he does not thenceforward hold for the donor upon his title, but for himself, upon a claim of title in himself. But when one — whether a child or a stranger — takes possession of goods under a conveyance which is proper in form to pass the title absolutely, it is clear that his possession is not subsidiary to a title, real or supposed, in the maker of the conveyance, but purports to be the exclusive possession of the party himself, as the owner, and, consequently, it is adverse to the former owner as to the rest of the world. It is true, thenon compos donor or vendor is not barred by such a possession. But that is not because of the character of the possession, but of the party's incapacity; for, admitting the possession to be adverse, the operation of the statute of limitations is suspended while the incapacity exists. In fact, however, it is on a claim of right, and it is adverse, and, therefore, upon the non compos becoming of sound memory or upon his death, leaving an executor, the time begins to run, and an action must be brought within the limited time from that event. If it were not so there would be no bar from any length of time when a vendor, though without the knowledge of the vendee, happened to be under mental infirmity (179) at the making of the contract.
PER CURIAM. Venire de novo.
Cited: Johnson v. Arnold, 47 N.C. 115.