The defendant in his answer admitted his marriage in December, 1794, and that Esther was put into his possession by his father-in-law in February, 1795, when the negro was sent home with his wife. He denies positively that it was upon any trust or express loan, and says nothing was said of the terms, from which he concluded that it was an advancement to his wife. He averred that nothing to the contrary was said during Spruill's life, and that the first intimation he had that the gift to him was not considered by his father-in-law as absolute was in the will; that, nevertheless, he, the defendant, claimed the property absolutely, and made that claim known to his daughters and to Spruill's executor, and in the neighborhood generally; that the executor never made any demand, nor did his daughters, though each of them was more than twenty-four years old at her marriage; and he relied upon his adverse possession and the statute of limitations, as against the (362) executors and his daughters. *Page 203
The proofs fully sustained the defendant as to the period of his acquiring the possession, and its nature. Many witnesses proved clearly that he asserted in his family and the neighborhood, for more than thirty years, his ownership, and that his daughters were all of the ages stated in the answer at the time of their marriage. A single witness deposed that the negro was originally lent. She was a daughter of the testator, Spruill. She did not say that she heard anything pass between her father and the defendant on the subject of this negro; but she often heard her father say that he never would give his children any property during his own life; and that she had heard Leigh say, shortly after his wife died, that the negro was lent to him. There was no testimony to the particular trust alleged in the bill, viz., that the defendant had kept the negroes for his daughters. I need not refer to the cases which establish the principle that when a father, before 1806, put into the possession of his child upon marriage a slave, it was a gift, unless the contrary expressly appear. They are numerous and familiar. Upon the face of this case, therefore, there was a gift. It is insisted, however, that the contrary is expressly proved here. That proof is by no means satisfactory. It does not go to any specific terms upon which the possession was gained, as coming directly within the knowledge of the witness at the time. It is only by inference from the general declarations of the father, and from those of Leigh, made shortly after his wife died. The former are not competent to determine the character of the transaction. The latter might be easily misunderstood. It is extremely probable that the defendant might have said that he considered the negroes his children's. As they came by their mother, he might, in conscience, have felt bound to (363) bestow them upon her issue, in preference to any others he might have by a subsequent marriage. In that sense he might have made the declaration proved. His answer cannot, therefore, be overruled by a single witness, whose testimony is of so uncertain a character. But it is insisted that she is supported by the answer, because Leigh does not swear to an express gift. My inference is directly the contrary. The answer states what is in law a gift, and denies an express loan. This is much stronger with me than if the defendant had stated an express gift. It argues that he has told the exact truth. If he had not, he would at once have come out with such a gift. The material part is the denial of the loan, which is positive. Upon the proofs, therefore, there was a gift to the defendant. *Page 204
But if this were not so, and the negro was loaned, and not given, yet the plaintiff could not get a decree. The particular trust alleged wholly fails, upon the evidence. We hear nothing of it but in the bill. Taking it to be a loan by Spruill indefinitely, there is relief at law, by an action of detinue by the executor, or, if he assented to the legacy, by the daughters. But if this Court could take jurisdiction, upon any principle of discovery or profits, the character of the defendant's possession, being expressly adverse to the executors and legatees of Spruill for twenty-six years, would bar the action at law, and so, by analogy, bars relief in this Court.
PER CURIAM. Affirmed.
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