32 Ky. 426 | Ky. Ct. App. | 1834
delivered the Opinion of the Court.
James Mason of Virginia, by his will, made the following devise. ‘‘To my sister, Janet Crawford, I leave my mulatto girl Nelly, during her life, and at her death, to leave Nelly to afty of her-children' she may think proper, or free her by emancipation, as she pleaseth.”
Samuel Crawford, the husband of Janet, obtained Nelly from Mason’s executor, in Virginia, and brought her with him to Kentucky, in 1809 or 1810, and retained possession of her and her increase till his death, in 1821 ; when she, together with a child of hers called Hannah, Were delivered to Pate, as part of his distributable share, in right of his wife, of the estate of Samuel Crawford, who has held possession of them ever since. Janet Crawford died in 1813, without having executed the power given her by Mason’s will, of disposing of Nelly.
Shortly after the birth of Hannah, in 1819 or 1820, Samuel Crawford gave her to Mrs. Barrett, then an infant and unmarried, who resided with him at the time, and so continued till his death. In 1832, Barrett and wife instituted this action against Pate, for the recovery
Upon proof conducing to show the foregoing facts, the court instructed the jury, that if Nelly was in Samuel Crawford’s possession for five years next before his death, he claiming her as his own, and' exercising acts of ownership over her, that this vested the title in him ; and refused to instruct them, at the instance of Pale, that the statute of limitations did not commence running against Mason’s executor, till LS23. A motion for a new trial was overruled.
We think the proof did not authorize the verdict, and that the court erred in the instruction given,, and in refusing that asked by the defendant.
The will gave Janet Crawford only a life estate in Nelly, with power to emancipate her, or give her to any of her children, and as this power never was executed, the right to Nelly reverted to the executor of Mason, on the-death of Janet Crawford,., ’ .
The executor never having been, in Kentucky, the statute of limitations did not commence running against him until 1823, when the exception in favor of non-residents was abolished. Samuel Crawford did not, therefore, obtain any title by virtue of the statute of limitations, and there is no other mode by which it is pretended he did acquire title. Consequently, he had no right whatever to Hannah, at the time he made the gift to Mrs-, Barrett.
ft is true, the’ statute has been running in favor of Pate since 1823, and it may, before the institution of this suit, have barred the right of Mason’s executor. But we do not perceive how that can benefit the claim of Barrett and wife. If one- having no title to a slave gives it to another, and afterwads acquires the title, it may be that the title- will enure for the benefit of the donee. But Samuel Crawford, not only had no title at the time of the gift, but never afterwards acquired any right to the slave.
Judgment reversed, with costs, and cause remanded, with instructions for a new trial, and further proceedings consistent herewith.