23 Ark. 362 | Ark. | 1861
delivered. the opinion of the court.
On the 2d of April, 1824, Nancy Curtis, of Anson county, North Carolina, made her will, which contained, among others, the following clauses:
“ I give and bequeath to the heirs of my son, Thomas Curtis, (provided that such should hereafter make their appearance, giving satisfactory evidence that they are the legal and bodily heirs of said' Thomas Curtis,) a negro woman named Jjucy, and all -her increase, except a girl named Massey, which I bequeath to my grandson Thomas, son of Elijah Curtis.
“I also bequeath to the heirs of Thomas Curtis (provided they come qualified as above named) a negro boy by the name of Sam.
“The above named negroes,'which I bequeath to the heirs of my son Thomas, I desire to be given up, at my death, to my son James Curtis, for the purpose of securing them to the heirs of Thomas Curtis; and I do hereby empower my son James to take possession of said negroes, at my death, for that purpose. And ¶rovided that the legal bodily heirs of Thomas Curtis should not hereafter come forward and demand the above named negroes, which I have bequeathed to • them, the said negroes and their increase shall be equally divided between the heirs of James and Elizabeth Curtis, viz: Emeline and Nancy Jane, daughters of James, and Harvey and Thomas, sons of Elizabeth Curtis.”
It appears that, at the time the will was made, Thomas Curtis, the son of the testatrix, was absent from the United States; that he had not been heard of for a considerable time, and the testatrix supposed him to be dead; and that it was not known whether he had any children or not. But it turned out that he was not dead. He was living when the bill was filed, (ljth February, 1858,) but quite an old man, and childless, never having been married.
The woman Lucy had one other child, besides Massey, named Mid.
The testatrix died shortly after the execution of the will, and immediately after her death, and the probate of the will, - James Curtis took possession of Lucy, her child Mid, and the negro boy Sam, and retained possession of them nntil within about fifteen years before the filing of the bill, when he gave the boy Sam to his daughter Emeline, and Mid to his daughter Nancy Jane; Lucy having about that time died,
Emeline intermarried with Dudley Daniel, and Nancy Jane intermarried with ¥m. E. Spence.
The bill was filed by James Harvey Curtis and Thomas Curtis, sons of Elijah Curtis, and grandsons of testatrix, against Daniel and wife, and Spence and wife, for an account of hire, and partition of the slaves. The court below, on the final hearing, dismissed the bill, and the only question discussed by the counsel here, or which need be decided, is, whether the relief sought by the bill was barred by the statute of limitation.
The cause was heard in the court below on the bill, answer, replication, a transcript of the will of Nancy Curtis, and a copy of an act of the General Assembly of North Carolina concerning gifts of slaves. The time at which the defendants obtained possession of the slaves in controversy, the character and duration of their possession, and the nature of the title under which they held them, are to be determined from the allegations of the bill, the admissions and averments of the answer.
Erom them it appears that James Curtis took possession of Lucy, klid and Sam shortly after the death of Nancy Curtis, as above stated, and remained in possession of them until about the year 1843, taking and using their labor for his own benefit. That about that time he partitioned his property between his two daughters, Emeline and Nancy Jane, who were his only children, and at the same time divided between them the slaves in controversy, giving Sam to Emeline and Mid to Nancy Jane. From that time until the filing of the bill, the defendants had possession of Sam and Mid, taking the benefit of their services, and treating them as their property.
About the year 1850, James Curtis and the defendants moved to this State, and the former lived with the latter until the time of his death, which occurred some two or three years before the filing of the bill.
The bill alleges that the defendants at all times, until shortly before the commencement of the suit, recognized the right of the complainants in the slaves, and at one time, in the year 1857, made a verbal agreement with them to sell the slaves, and divide the proceeds. On the contrary, the answer denies that defendants ever recognized any right in complainants to the slaves, and avers that defendants had no knowledge that complainants had any claim to the slaves until about the year 1857 — that from the time the slaves were given to defendants, by James Curtis, to the time of the filing of the bill, they were in the peaceable, uninterrupted possession of the slaves, claiming and using them as their own property.
In the absence of any proof to sustain the allegations of the bill, it must be assumed from the admissions, denials, and responsive allegations of the answer, that the defendants were in the peaceable,' continuous, uninterrupted and adverse possession of the slaves, for more than five years after the passage of the act of 19th of December, 1846, and before the filing of this bill,
Whether the gift of the slaves from James Curtis to his daughters was in parol or by deed, does not appear from the allegations of the bill or the answer. But assuming it to have been a verbal gift, and that under the statute of North Carolina, read in evidence, such gift was null and void, yet it has been held that adverse possession of slaves, under a verbal gift void by statute, for the period of limitation, confers title upon the possessor, and bars a recovery by an adverse claimant. McDonald ads. vs. Spencer, 22 Ark., and cases cited.
It is‘insisted for the appellants that James Curtis held the slaves as a direct trustee, under the will of Nancy Curtis, for the joint benefit of themselves and the appellees; that the statute of limitations did not run in his favor; and that appellees having received the slaves of him, with knowledge of the trust, Held them as trustees, in Ms stead, and that the statute did not run in their favor.
The statute (Gould's Digest, p. 1,026) declares that the peaceable possession of slaves, etc., for five years, etc., shall be sufficient to give the the possessor the right of property, as against all persons, etc.
The statute makes no exception in favor of persons claiming slaves as cestui que trusts against their direct trustees, but we have held that the possession contemplated by the statute was such possession as was adverse or hostile to the title of the owner (Spencer vs. McDonald, 22 Ark., and cases cited), and that it did not,- as a general rule, run in favor of a direct trustee, because his possession was not adverse within the meaning of the statute, but in contemplation of law, the possession of his cestui que trust. Anderson vs. Dunn, 19 Ark. 665 ; Harriet et al. vs. Swan et al., 18 ib. 498 ; Brinkley & wife vs. Willis et al., 22 ib. 9.
But where the trustee sells or otherwise disposes of the trust property to another person, in violation of the trust, though the purchaser, if he takes the property with knowledge of the trust, may be chargeable in equity as an implied trustee, yet his possession commences in hostility to the title of the cestui que trust, and if he holds and uses the property as his own for the period of limitation, his possession is adverse within the meaning of the statute, and he is entitled to its protection. The cestui que trust must suffer the consequences of permitting a. stranger to the. trust to acquire and hold adverse possession of the property for the-time prescribed by the statute, without resorting to the courts for its recovery.
. It was upon the principles above asserted that the court held in Halliburton ad. vs. Fletcher ad. et al., that the statute did not run in favor of Henry M. Olay, who held the slaves in controversy, in that case, for many years as guardian of Dr. Green Olay, but that it did run in favor of Jóseph Olay, who took the slaves from his father, Henry M., with knowledge of the trust but held and treated them as his own property for the period of limitation after the death of his father.
It may be remarked, however, that in this case, the appellees claim the property under a gift from James Curtis, and they expressly deny that they had any knowledge of the title of the appellants until a short time before the bill was filed. In other words, they deny that they took the slaves with a knowledge of the trust, and there was no proof to overturn the answer.
The decree must be affirmed.
