The testator in the year 1833, married Harriet Beasley, who then was, and still continued an infant. At (513) the time of the marriage, the wife was entitled with the other defendants, also infants, to several negroes, who had been hired out by their guardian for that year. The testator died before the expiration of the year, for which the slaves were thus hired, never having had any actual possession of them.
His Honor, Judge Martin, upon these facts, at the last term of Chowan Superior Court, directed a division of the slaves to be made according to the prayer of the petition, and the defendants appealed. The point of law raised in this case, has been decided by the Court in favor of the plaintiff in Whitaker v. Whitaker, 12 N.C. 310, and Granburyv. Mhoon, Ib., 456. In these cases, the Court said that the possession of the owner of slaves is not disturbed by the hiring; that the occupancy of the hirer is consistent with it, and does not divest it. The hirer is a mere bailee or locum tenens for the owner, and only holds the property for her. It is not changed from a chose in possession, to a chose in action. The owner has such a possession that she may, if of age sufficient, either sell or give the property, and it would pass. The marriage therefore was a complete gift of the individual share of Harriet in the slaves in question to her husband; and that share was vested in possession, as well as in right in him. Harriet and the other defendants being tenants in common of the slaves, did not alter the case, for the possession of one tenant in common of a chattel, is in law, the possession of all the tenants in common.
The opinion of this Court is, that an undivided part of the slaves mentioned, belong to the plaintiff as administrator, and that he has a right to have partition of them in this way, by virtue of a late act of Assembly. We are of opinion that the interlocutory order of the Superior Court was correct, and order it to be so certified to the Superior Court (514) of law of Chowan County, and that Court will proceed in the case to a final judgment.
PER CURIAM. Order affirmed.
Cited: Miller v. Bingham, 36 N.C. 425; Stephens v. Doak, 37 N.C. 349;Caffey v. Kelly, 45 N.C. 50; Ferrell v. Thompson, 107 N.C. 428;Fowler v. McLaughlin, 131 N.C. 210. *Page 422