delivered the opinion of this court.
The plaintiffs having proved their title to the negro slave, for the conversion whereof the present action of trover was instituted, and a demand and refusal before the institution of their suit, the defendant then proved, that he had been in possession of the said negro since 1838 or 1839, using and claiming her as his own; and thereupon prayed the court to instruct the jury, “that if they found from the evidence, that the defendant in this case, had possession of the slave in controversy for more than three years, next before the institution of this suit, using and claiming her as his own, then the plaintiffs were not entitled to recover.” Which instruction the court gave, and the propriety of their having done so, forms the subject of appeal on the first bill of exceptions.
Whether a plaintiff, having both the right to the property and to its possession, during the period of such claim, user and possession, by a defendant, could successfully resist such a prayer as that made by the present defendant, which excludes from the consideration of the jury all enquiry as to the knowledge of the plaintiff, of such possession, user and claim, is a question upon which it is unnecessary, and therefore not intended by us, to express any opinion.
In this case, until within less than two years before the institution of this suit, neither the present plaintiffs, nor Robert Beale, the trustee, under whose conveyance they acquired their legal title, had any right to the possession of the negro in controversy. By the express terms of the deed of trust from Benjamin Berry, Eleanor Berry was “to have and enjoy the sole and exclusive use of all the said property, for and during the time in which she shall and may live and remain unmarried, without molestation or hindrance” of the said trustee. Eleanor Berry’s interest in the property conveyed, terminated, by her marriage, in 1842, until when, Beale, the trustee, unless informed to the contrary, might naturally conclude, that the negro girl Mary remained in the possession of Eleanor Berry, or those rightfully claiming under her. A possession in another person, adversary to her rights or his own, he had no reason to anticipate, and his knowledge thereof, without proof, is not to *186be presumed. The facts submitted to the finding of the jury by the defendant’s instruction, as granted by the court, might all be true, and yet not be any invasion of the possessory rights of the trustee, for which he could seek any legal redress. The defendant may have acquired, by purchase, the usufructuary possessive right of Eleanor Berry, and in virtue of such title, possessed, used, and claimed, negro Mary as his own. This case, therefore, falls clearly within that class of cases, where not only adverse possession and claim of title, for the time limited by the act of Assembly, are necessary to bar the plaintiff’s recovery, but it must be made appear to the jury, that such adverse possession and claim of the defendant, were known to Robert Beale, the trustee of the plaintiffs, three years before the institution of this suit. It hence follows, that the county court erred in instructing the jury, as they in effect did, that three years possession of negro Mary, by the defendant using and claiming her as his own, before the commencement of the action, barred the plaintiff’s recovery, whether their trustee had knowledge of such possession, user, and claim, or not.
In rejecting the testimony offered by the plaintiff’s cross-examination of the defendant’s witness, John R. Walker, as stated in the second bill of exceptions, we think the court below also erred. The defendant, by his examination of the witness in chief, having proved, that he, (the witness,) as constable, had sold negro Mary to John T. Berry, in 1837, who, in 1838, sold her to the defendant, thereby, in effect, gave evidence to the jury, that such sale was made under a fieri facias, or some process of execution. The plaintiffs, thus suddenly apprised of the existence of a written paper, — of which we cannot assume that they had any previous knowledge; or had then any means of producing; or had any reason to expect its being in any way referred to at the trial, and its contents partially given in evidence to the jury, and relied on by the defendant,— could not be expected to have taken the requisite steps to prove its contents, according to the strict requirements of law; or to enforce its production by a subpoena duces tecum; or if lost, destroyed or mislaid; or if in the possession of the defendant, to have laid a proper foundation for the proof of its contents by *187secondary evidences, and therefore, as well upon principles of reason and justice, as of law, ought to have been permitted to give in evidence the undisclosed part of the contents of the fieri facias, by the same kind of testimony that the disclosed portion of the contents of the writ had, already by the defendant, been laid before the jury. Surprise and injustice would be the result, if a different principle were to prevail in many cases, in some respects similarly circumstanced. We dissent, therefore, from the county court’s opinion, and refusal to permit the testimony offered by the plaintiff’s cross-examination of the witness to go to the jury, as stated in the second bill of exceptions.
Dissenting from the county court on both bills of exceptions, their judgment is reversed. Let a procedendo issue.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.