Granville County NcArchives Court.....Hicks, Vass & Wife V. 1819
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File contributed for use in USGenWeb Archives by:
Guy Potts http://www.genrecords.net/emailregistry/vols/00017.html#0004214 January 19, 2009, 8:34 pm

Source: Nc Reports
Written: 1819

Vass and Wife et al v. Hicks

From Granville

November Term 1819

Previous to the act of 1806, requiring gifts of slaves to be in writing, a 
mother made a parol gift of a slave to her children, reserving to herself a 
life estate in the slave. She continued in possession of the slave more than 
three years after the gift, having in the mean time married, and within three 
years after her death, the children brought detinue for the slave against the 
husband. They are entitled to recover; for

Although the reservation of the life estate was inconsistent with the gift; 
yet, if the possession during life according to the reservation was by the 
consent of the donees, such possession was not adverse, and the statute of 
limitations would not bar their claim.

The reservation being void, the donees could, at any time after the gift, in 
the life time of their mother, have made a demand, and upon refusal to deliver 
the slave, brought suit and recovered.

This was an action of detinue for negro slaves, which belonged to the 
Defendant's wife before her intermarriage with the Defendant. The Plaintiffs 
were her children by a former husband, and claimed the slaves under a parol 
gift, which they alleged she had made to them previous to the act of 1806, 
requiring gifts of slaves to be in writing. The only evidence of the gift was 
the declarations of the Defendant, that he had persuaded the mother of the 
Plaintiffs, before their marriage, to give the slaves to her children; that 
she had given them, but reserved to herself a life estate in them. 

The Defendant had been in possession of the slaves more than three years, but 
this suit was brought within less than three years after the death of his 
wife. The Defendant pleaded the general issue and statute of limitations. 

Upon the trial, the Court charged the Jury, that the reservation of the life 
estate in the slaves at the time of the gift was void, and the Plaintiffs 
might have sued for the negroes at any time after the gift; and that, as their 
cause of action accrued at the same time with their right to the slaves, the 
statute of limitations began to run from that time, and more than three years 
having elapsed, the Plaintiffs were bound by the statute. The Jury found a 
verdict for the Defendant, and a rule for a new trial was obtained, on the 
ground of misdirection by the Court. The rule was discharged, and the 
Plaintiffs appealed.

Hall, Judge: I agree that the reservation of an estate for life in the slaves 
was inconsistent with the gift, because, in making the gift, there must have 
been a delivery of the slaves to the donee, and that delivery left no 
possession in the donor; and to acquire possession afterwards would be against 
his own delivery. If, however, he afterwards became possessed of the property 
by consent of the donee to hold it for life according to the reservation, that 
possession was held by virtue of such consent, and not under the reservation 
made at the time of the gift. Suppose, however, that the reservation was void, 
but that the Defendant held under it, believing, as did the Plaintiffs 
probably, that he had a right to do so; although the Plaintiffs might have 
brought their action and recovered the property, yet the Defendant's 
possession was not adverse; he held by consent and at the will of the owner; 
and although the mother might live many years afterward, the statute of 
limitation would not begin to run.

The statute began to run from the time a demand of the negroes was made by the 
Plaintiffs and a refusal to deliver them up by the Defendant. That refusal was 
evidence of an adverse possession, but no evidence of such possession anterior 
thereto was adduced. Although, during the life of his wife, the Defendant 
exercised acts of ownership over the negroes, he did what he had a right to 
do, as he supposed, under the reservation. If so, it cannot be considered as 
evidence of an adverse possession, so as to let in the statute of limitations.

Agreeably to the principles here laid down, the Plaintiffs were entitled to 
recover in the case of Duncan and wife against the administrator of Parish 
Self. That was the case of a gift of a negro by Defendant's intestate, to his 
daughter, one of the Plaintiffs, reserving to himself, to his daughter, one of 
the Plaintiffs, reserving to himself a life estate. It was decided in this 
Court, at July term 1810. Whether in that case the reservation was void, was 
not the question before the Court, although there was an opinion intimated 
upon it. This case was not argued by counsel. The rule for a new trial must be 
made absolute.

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