"WALKER, J.
— The defendant’s motion, to require the plaintiff to restore the slaves and money received by her, or to return them to the sheriff, before proceeding to trial, was properly overruled. The principle settled in the two cases of Hall v. Hrabrowski, 9 Ala. 278" court="Ala." date_filed="1846-01-15" href="https://app.midpage.ai/document/hall-v-hrabrowski-6502806?utm_source=webapp" opinion_id="6502806">9 Ala. 278; and Bradford v. Bush, 10 Ala. 274" court="Ala." date_filed="1846-06-15" href="https://app.midpage.ai/document/bradford-v-bush-6503016?utm_source=webapp" opinion_id="6503016">10 Ala. 274, manifestly has no application here. That principle is, that a plaintiff* shall not take the benefit of the reversal of a judgment, while he asserts the validity of the judgment by retaining money collected under it. Here the defendant has obtained a reversal of the judgment; and he may fully protect myself, by pleading in an appropriate manner the facts upon which his motion is predicated. If the property and money belong to the plaintiff^ it would be extremely unjust to compel the restoration of them to the wrongful possession of the defendant. "Whether they belong to the plaintiff or defendant, can only be judicially ascertained upon the trial of the case.
2. The surrender of property to the sheriff, and the payment to him in money of the assessed value of other property, in obedience to process in his hands, issued upon a judgment afterwards reversed, is no admission or acknowledgment of the plaintiff’s title. It is an involuntary and compulsory surrender, and cannot be evidence of the plaintiff’s title. Eor this reason, the court erred in overruling the defendant’s objection to the testimony of the witness Harris.
3. The defendant proved, that the slaves claimed by the plaintiff had been appraised as a part of the estate of his intestate, in the presence of the plaintiff*; and that she did not assert any claim to the property at the time which was heard by the defendant’s witnesses. The tendency of this testimony was, to authorize the inference of an admission by the plaintiff from her silence. Her silence on that occasion thus became a fact in the defense of the case; and the question whether she was or was not silent became a material question of fact in the case. Her declarations, asserting her title on the occasion, afford the only possible evidence by which she could protect herself against the inference to be drawn from the proof made *144by the defendant. The inference to be drawn was predicated upon her omission to assert her claim while the property was being appraised as a part of the estate of defendant’s intestate. The declarations given in evidence were made to one of the appraisers, separately from the rest, during the interval between the valuing of the property and the signing of the bill of appraisement. This evidence conduced strongly to establish the fact, that she did not permit the appraisement of the property claimed by her to be completed, without the assertion of her claim; and was, therefore, properly admitted, for the single purpose for which it was offered, to rebut the proof of her silence. It would have been the duty of the court, to have instructed the jury that no part of the declarations should be considered for any purpose, except to rebut the proof of her silence as to her right on that particular occasion. The defendant did not make such a motion, but asked an exclusion of the entire evidence, and of its different parts. This the court, as we have already decided, properly refused, because it was admissible for a single purpose.
4. The mere omission to assert one’s title can never amount to an estoppel, unless the silence operates injuriously to the person in favor of whom the estoppel is asserted. If one, having a title, is present, and remains silent, while another purchases from a third person, in ignorance of such title, the doctrine of estoppel will apply. But there is no room for its application to a case where no action has been predicated, no liability has been incurred, and no loss sustained, in consequence of such silence. — Steele v. Adams, 21 Ala. 534" court="Ala." date_filed="1852-06-15" href="https://app.midpage.ai/document/steele-v-adams-6504914?utm_source=webapp" opinion_id="6504914">21 Ala. 534. The defendant in this case does not appear, from the facts proved or hypotheticated in the charge, to have done any act injurious to him, which the open assertion of the plaintiff’s title would have prevented.
5. The defense of the statute of limitations was available to the defendant under the plea of non detinet. — Lay v. Lawson, 23 Ala. 377" court="Ala." date_filed="1853-06-15" href="https://app.midpage.ai/document/lays-v-lawsons-admr-6505128?utm_source=webapp" opinion_id="6505128">23 Ala. 377.
6. The third and fourth charges, in reference to the statute of limitations, asked by the defendant, were prop*145erly refused. The third charge makes the defense under that statute depend upon a possession and control by the defendant’s intestate of the slaves in controversy, as his own property. The defendant may have possessed and controlled the slaves as his own property — that is, he may have treated them in every respect, as his own property — and yet he may not have held adversely to the plaintiff, or claimed any title in himself. All that the charge contains is not inconsistent with the supposition of a title admitted in the plaintiff, and of a holding for her under a gratuitous bailment incident to the relation in which the plaintiff and the defendant lived towards each other. The vice of the charge is, that it would have authorized a recovery by the defendant, although the possession of the defendant’s intestate had been continuously under and for the plaintiff'. All that the charge contains may be true, and yet the plaintiff may have a right to recover. The fourth charge is obnoxious to the same objection. That charge merely varies the phraseology, by characterizing the possession of the defendant’s intestate as being accompanied by the treatment and control of the slaves by him as his own, and avers a possession in the defendant, as administrator, during the time (which was less than eighteen months) between the commencement of the administration and the institution of the suit.
7. The evidence certainly conduced to show a parol gift, and a delivery to the plaintiff. — See Ivey v. Owens, 28 Ala. 641" court="Ala." date_filed="1856-01-15" href="https://app.midpage.ai/document/iveys-admr-v-owens-6505774?utm_source=webapp" opinion_id="6505774">28 Ala. 641. However weak the proof may have been, the court properly refused to charge the jury, that it was insufficient to establish a delivery. If there was any proof, it was the province of the jury to determine its sufficiency.
8. There was not only proof conducing to show a parol gift and delivery, but there was also some conflict as to the question, whether the possession of the defendant’s intestate was, before his death, adverse; and therefore, the court was not authorized to give the charge, that the jury must, if they believed the evidence, find for the defendant.
The judgment is reversed, and the cause remanded.