The writ issued on 1 October, 1825, and on the trial the case was that the slaves, being a woman and four small children, belonged to one Robert Flinn, who died in September, 1820. In November ensuing, letters of administration upon the estate of Flinn issued to the plaintiff, who took the slaves into his possession, and kept them until January, 1822, when they were placed by him with one Wiggins, to be kept for the year 1822, at stipulated price. Martha Flinn, who was the widow of the plaintiff's intestate and the sister of Wiggins, resided with the latter during that year. In the fall of 1822 Martha Flinn left her brother's and went to reside on her own plantation in the neighborhood. Early in 1823 the slaves in dispute were in the actual possession of Martha Flinn, and so continued until July, 1825, when they were found in the possession of the defendant. On 20 September, 1825, the plaintiff demanded the slaves of *Page 312 the defendant, who refused to give them up, alleging that he had bought them from Martha Flinn, and declaring that he should hold them as his own. It did not appear with certainty at what time Martha Flinn left her brother's house and (467) took the slaves into her possession. The defendant contended that it was before 1 October, 1822, and the plaintiff that it was after. Both parties called witnesses to this point. Those called by the defendant stated that it was in the fall of 1822, but whether in the month of September, October, or November none of them could say. The witnesses called by the plaintiff stated that the negroes remained with Wiggins until January, 1823, when the plaintiff settled with him for keeping them the year then past, and advised Martha Flinn, who was present, to take them home with her, and keep them herself for him, which she agreed to do.
His Honor instructed the jury that an adverse possession continued for three years would not only bar the plaintiff's right of action, but extinguish his title to the slaves; but that the plaintiff's original right ought to prevail unless the defendant showed such adverse possession in himself or those under whom he claimed; and that the burthen of proving this length of possession was on the defendant, because he alleged it, either as a part of his title or in bar of the plaintiff's remedy, upon a clear and admitted previous right. The jury were further instructed that every possession is in law presumed to be on the title, and for the exclusive benefit of the possessor, until the contrary be shown; that if Martha Flinn did in fact receive the slaves from the plaintiff, or hold them upon a bargain made by him with her, then her possession was not adverse to the plaintiff, but under him, and for his benefit, and although this possession might continue for more than three years, the plaintiff would not thereby be defeated of his right of action, upon a demand and refusal; but that in relation to such a contract of bailment the burthen of proof was upon the plaintiff who alleged it.
A verdict was returned for the plaintiff, and the defendant appealed. I think that the law was fully and correctly stated by the presiding judge. No objection is made by the defendant to the charge on the first point; he objects to the second. *Page 313
I cannot well conceive how a possession is lost by one person unless it is gained by another; they are correlatives. If I lose my goods and they remain lost for twenty years, and are then found, I may maintain an action for them, and the finder will not be protected by the statute of limitations. So if my bailee possess my goods under the bailment for the same period of time, I can maintain an action against him, for I have not thereby lost my possession, his possession being my own. There must be a possession adverse to my title before my possession is destroyed. I speak not here of that actual possession which the owner should have to maintain trespass vi et armis or to make the goods the subject of larceny; for peculiar reasons, actual possession in such cases is required. But I speak of that possession which is the indictum of title, and which is absolutely necessary to constitute in law a perfect one. The judge was therefore perfectly correct in instructing the jury that title and possession having been shown to have been once in the plaintiff, that possession continued until another arose in some other person; and that it was not incumbent on the plaintiff to prove an actual possession in himself within three years next before suit brought, but that it was incumbent on the defendant to show a divestment of that possession, by an adverse one in himself or some other person, with which he could connect his possession.
The judge was equally correct when he instructed the jury that every possession was presumed in law to be on the title, and for the exclusive benefit of the possessor, until (469) the contrary be shown; and that a possession being shown in Martha Flinn, such possession was presumed to be for her benefit, and consequently adverse to the plaintiff's right, until its fiduciary character was shown by the plaintiff; and if so shown, no length of time would either bar the plaintiff's action or vest the title in the defendant.
In using the expression, "with some other person with whom he can connect his possession, " I have yielded to the common understanding of the profession. But I wish not to be understood as expressing any opinion on the subject, as it is entirely unimportant in the present case.
PER CURIAM. Judgment affirmed.
Approved: Green v. Harris, 25 N.C. 210. *Page 314