Alexanderv.Torrence

Supreme Court of North CarolinaDec 1, 1858
51 N.C. 260 (N.C. 1858)

December Term, 1858.

Where it was made to appear that by the law of Alabama, six years adverse possession of a slave, under a claim of right, conferred a title to such slave, it was held that an action for a breach of a warranty of title, contained in a bill of sale, would not lie in favor of a person who had thus held for more than six years in that State, although, the slave, having run away and gone into South Carolina, a court in that State had held that the title thus acquired was invalid against one that previously had title in that State.

ACTION for COVENANT for the warranty of title to a slave. tried before PERSON, J., at the Fall Term, 1857, of Mecklenburg Superior Court.

Thompson, Graham and Osborne, for plaintiff.

Boyden and Fowle, for defendant.


The slave, Caleb, the subject of this action, had originally belonged to one Benjamin Johnson, of Abbeville District, South Carolina, who made a deed of gift for him to his sister Anne, afterwards intermarried with John Burnet. On the death of Benjamin Johnston, his son, John Johnston, in 1837, sold the slave in question, to James Caldwell, who was passing through that State, and he carried him to Alabama, and sold him to the plaintiff, Alexander, by a deed containing a warranty of title. Twelve years afterwards, as the plaintiff was passing through South Carolina, the Slave, Caleb, ranaway and went into the possession of Burnet, the husband of Anne (formerly Johnson,) and suit was brought for him in that State, which was decided on the circuit in his, (plaintiff's,) favor, but upon an appeal to the Court of Appeals, it was decided that the possession for twelve years in Alabama, did not give title to the plaintiff, but that the right of property in the slave was in Burnet, jure mariti. Accordingly, a new trial was ordered, and when the cause next come up on the circuit, the plaintiff took a nonsuit and brought this action against the defendant as executor of Caldwell.

The defendant contended, by the law of Alabama, an adverse possession of six years, under a claim of right, amounted to a good title; and produced evidence that such is the law of that State; but the Court held the contrary, and the defendant's counsel excepted.

Verdict and judgment for the plaintiff. Appeal by the defendant.


It is unnecessary to notice many of the exceptions set out in the statement of the case; because the Court is of opinion that the defendant is entitled to a venire de novo upon the merits.

To maintain the action, it was necessary for the plaintiff to prove an eviction by title paramount. There was sufficient evidence of an eviction; for the fact that the slave went into the possession of Burnet, who, upon demand, refused to give him up, and that the plaintiff brought an action of trover against him, and failed to recover, is as full proof of an eviction as if Burnet had sued the plaintiff for the slave and recovered; the actual and legal effect being precisely the same. This proposition assumes, that the plaintiff was well advised in submitting to a nonsuit after the new trial was granted by the Court of Appeals of South Carolina. It was evidently useless for the plaintiff to proceed further in the face of the opinion of the Court that he was not entitled to recover. Was the eviction by title paramount? In other words, does the evidence show a title in Burnet superior to the title of the plaintiff and of defendant's testator? Burnet's title rests upon a deed executed by one Benjamin Johnston, to Anne, the wife of Burnet, dated the 13th of June, 1831, and the question is, did the title of the slave vest in Mrs. Burnet by the force and legal effect of that deed? The parties resided in the State of South Carolina. The slave was there, and the deed was executed there; it follows that the operation of the deed must be governed by the laws of that State. This Court is not presumed to know the law of another State or county, and where a question arises in regard to it, evidence thereof must be offered to the Court. The judicial decisions of the courts of a State or county, contained in reports, authorised by law, or received and recognized by the profession, furnish the most satisfactory evidence of the law. Allen v. Pass, 4 Dev. and Bat., Rep. 77. Worrell v. Vinson, 5 Jones' Rep. 91, Hooper v. Moore, Ibid. 130, Conflict of Laws, sec. 637-8, 1 Greenleaf's Ev. sec. 486.

In this case, the work is done to our hand; for in Alexander v. Burnet, 5 Richardson, R. 190, the principle of the law of South Carolina, in regard to the construction and legal effect of deeds of the kind under consideration, is not merely announced, but the application of it is made to this very deed, and in the opinion of the Court the title of the slave was vested by it in Mrs. Burnet and passed to Burnet, jure mariti, the slave having been in his possession. So, upon this point, we are relieved from all further labor, except that of deciding that it is governed by the law of South Carolina.

The plaintiff having thus shown title in Burnet, and a consequent defect of title in the defendant's testator, at the time he executed the covenant of warranty sued on, established a prima facie right to recover, and it remains to be seen whether what afterwards occurred had the effect of divesting the title out of Burnet and vesting it in the plaintiff; for, if he had title at the time of the eviction, he has no cause of action on the covenant, as Burnet's act would be that of a mere stranger without title. The scene is now shifted, and we pass from South Carolina into Alabama. The plaintiff bought the slave from the defendant's testator, and took the bill of sale and the covenant sued on, in the State of Alabama. The slave was there, and was kept in possession there, by the plaintiff, for more than six years, adversely and upon a claim of title. The question is, did the title of the slave vest in the plaintiff by the force and effect of this adverse possession? A preliminary question is, are we to be governed in our decision by the law of Alabama or the law of South Carolina? But for the opinion of the court in Alexander v. Burnet, supra, we would say it follows, as a matter of course, that the legal effect of the acts done in Alabama, must be determined by the law of that State, in the same manner that the legal effect of the deed executed by Johnson, was determined by the law of South Carolina; and, notwithstanding that opinion, we are fully satisfied that such is the law, and the court of South Carolina misapprehended the point and fell into error by confounding it with the doctrine in regard to the statute of limitations. The plaintiff did not, in any manner or shape, invoke the aid of the statute of limitations of the State of South Carolina; on the contrary, he alleged that, having bought the slave in Alabama, and having held adverse possession of him there for more than six years, such possession had the legal effect of vesting the title in him according to the law of that State, as held by the courts there, in the construction of the statute of limitations of that State. We think it sufficient to ask, (and we do so with due respect,) what bearing had the statute of limitations of the State of South Carolina on that question?

If Alexander, by acts done in the State of Alabama, had acquired a title to the slave under the law of that State, the courts of all other countries were bound to respect it, and the fact that Burnet, who was the original owner, was a citizen of South Carolina, could not in any way affect the question, unless there had been a clause in the statute of Alabama saving the rights of non-resident owners. This brings us to the main question — did the title vest in the plaintiff by the force and effect of his adverse possession according to the laws of the State of Alabama? We have examined the statute. Six years is a bar to the action, and there is no saving of the rights of non-resident owners who are not under disabilities — infancy coverture, c., and we find it settled by the decisions of the courts of that State, where the possession of personal property is held adversely for a period beyond that prescribed by the laws of the State as a bar to an action, the title vests in the person holding such adverse possession, against the original owner, and all other persons. Doyl v. Bouler, 7 Ala. Rep, 246, Goodman v. Munks, 8 Porter's Ala. Rep. 85.

Judgment reversed, and a venire de novo.

PER CURIAM, Judgment reversed.


APPENDIX.