Opinion
December Term, 1849.
Where slaves were given to A during her coverture with B, and put in their possession, and, after the death of B, C, his administrator, believing A had a right, returned the possession to A, who claimed them as her own and retained the adverse possession for two years, and then conveyed them to C, as in his own right: Held, that after the termination of the bailment to A and her delivery of the slaves to C, he was remitted to his original right, and held the slaves as administrator of B, and on the death of C the administrator de bonis non of B was entitled to recover the slaves.
APPEAL from the Superior Court of Law of BERTIE, at Fall Term, 1849, Bailey, J., presiding.
This was an action of detinue brought out by the plaintiff as administrator de bonis non of Hezekiah Mizell, to recover a number of slaves. The slaves in question were, by one Judith Britton, given to Ann Mizell after her intermarriage with the said Hezekiah Mizell. The slaves went into the possession of Hezekiah Mizell, and so remained for several years until his death. He died in 1842, and administration on his estate was granted by the Court of Pleas and Quarter Sessions of Bertie, at August Term, 1842, to his son, West Mizell. West Mizell surrendered the slaves in question to the said Ann Mizell, supposing, as it was in evidence he declared, she had title to them after his father's death, and the whole of them except six, George, Hagar, Norfleet, Lewis, Caesar and Lucinda, remained in her possession more than three years before her death, she claiming them as her property, and West Mizell, the administrator, admitting they were. The following slaves, the said George, Hagar, (483) Norfleet, Lewis, Caesar and Lucinda, went into Mrs. Mizell's possession, and so continued for about two years, when she, to favor her son, delivered them to the said West, he admitting the property in them to be in her, who continued in possession of them up to the time of his death. Mrs. Mizell then took the negroes, died shortly afterwards, to wit, within a few months thereafter, when they went into the possession of the defendant. There was a demand of these slaves by the plaintiff as the property of his intestate, and a refusal to deliver.
It was insisted by the plaintiff's counsel that, although their right to recover any of the slaves, except those which were delivered by Mrs. Mizell to her son, was barred by the statute of limitations, yet as to those, the statute was not a bar.
His Honor instructed the jury that if they believed the evidence the plaintiff's right to recover any of the slaves was barred.
Rule for a new trial; rule discharged, and appeal prayed and granted to the Supreme Court.
W. N. H. Smith for plaintiff.
Bragg for defendant.
The plaintiff seems to have conceded that he could not recover the slaves which were kept in possession by Mrs. Mizell, but he insisted that he had a right to recover the slaves that she put in the possession of her son, West Mizell. His Honor thought the plaintiff's right was barred as to all, and that the effect of the bailment was not merely to estop West Mizell from denying the title of his mother, while the bailment and the possession obtained under it continued, but that it had the further effect of making his possession her possession, and of protecting it against his own better title, so as (484) to divest it and pass a good title to her under the act of 1820.
We cannot concur in this conclusion. It carries the doctrine of estoppel beyond the reason upon which it is founded — to enforce the observance of good faith — and involves the absurdity of making one hold possession adverse to himself. It is enough that he is not allowed to derive any advantage from the possession which he acquired under the bailment. There is no reason why he should be prejudiced in the assertion of his title after the bailment was determined and the possession restored.
If one accepts a lease of his own land from a person in adverse possession, he is not at liberty to deny the title of his landlord during the continuance of the lease or of the possession obtained under it, but when the relation of the landlord and tenant ceases, he may assert his title. He cannot take benefit of the possession thus acquired, or claim to be remitted to his "more ancient and better title," for accepting the lease was his own act, and he is estopped thereby during its continuance. But after it is determined he will not be prejudiced, and may well assert his title. Coke on Lit., 47 b; Smart v. Smith, 13 N.C. 258.
PER CURIAM. Judgment reversed, and a venire de novo.
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