Henry A. Callis vs. Francis Tolson's Ex'rs, 6 G. & J. 80

Buchanan, Ch. J., delivered the opinion of the court. The suit is in replevin by the executors of Francis Tolson, for certain negroes named and described in the writ,, as the mother and her three children, to which there are' three pleas; property in the defendant;, non cepit within three years, &c.; and actio non accrevit within three years, &c.

At the trial the plaintiffs offered to prove by the widow of Francis Tolson, that the woman named in the declaration was originally the slave- of the deceased, and was, about nineteen or twenty years before, sent by him to the house-of the defendant, who had married his daughter, for the purpose of attending on his wife and child, which was permitted by the court: and the objection raised on the first bill of exception is, that Mrs.

Tolson was an incompetent witness to prove a title in the plaintiffs, the executors of Francis Tolson, to the negro woman, on the ground, that being the widow of the deceased, and having renounced all right under his will, she had a direct interest in establishing such a title; and in support of that proposition the contract under seal entered into between her and the plaintiff’s, which is set out in the bill of exceptions, is relied upon. But we cannot perceive what aid is brought to the objection to Mrs. Tolson’s competency by the contract so invoked.

By that contract, in consideration of difficulties attending the construction of the will of Francis Tolson, of a mutual wish to settle the rights and interests of all concerned in an amicable manner; of the unwillingness of Mrs.

Tolson to disturb the dispositions made by her husband of his estate, further than was necessary to secure to her a comfortable maintenance, and of the stipulations on the part of the plaintiffs, she-in terms, releases, gives up, and quits all claim to her dower in, or thirds of, her husband’s real and personal estate, and also to three hundred dollars per annum, of five hundred dollars per annum bequeathed to her in the will: and the plaintiffs on their part among other things, contract to pay her the other two hundred dollars, and that she shall possess and enjoy all the bequests, devises, legacies, and immunities given her by the will, except the three hundred dollars relinquished by her.

What direct interest then had she in establishing the title of the plaintiffs to the negro woman, to whom her testimony relates? The will itself is not in the record, and does not appear, and there is nothing to show that the negro woman was bequeathed to her, or what, if any, disposition was made of her. She may for any thing that appears have been bequeathed to somebody else, and to disqualify a witness on the ground of interest, the party objecting to his competency must show that disqualifying interest, which has not been done here.

On the contrary, the instrument relied upon shows that the witness objected to had no such interest as the widow of Francis Tolson. By that very contract she had abandoned all right and claim to dower in, or the thirds of, her deceased husband’s real and personal estate, reserving only a claim to two out of the five hundred dollars per annum bequeathed to her; and for that and the enjoyment stipulated by the plaintiffs, of the other bequests and devises to her in the will, she had taken their responsibility upon their contract, and could not disturb any disposition by them of the residue of the estate.

That contract is the personal contract of the plaintiffs, binding only upon them in their individual capacity, and she could have no recovery against them for a violation of it, to bind the assets of their testator. Nor does there appear to have been any deficiency of assets. On the contrary, the contract amounts to an admission of assets; and therefore, as far as appears to us, she was not disqualified as a witness in this case, by any claim that she may have to the two hundred dollars under the will of Francis Tolson, against his executors as such.

As to the pleas of the statute of limitations, it is perfectly clear, that if, as is contended, the property mentioned in the declaration was in truth loaned to the defendant, by the testator of the plaintiffs, and held and used by him under and in virtue of such loan, though for more than three years before the suit was instituted, such possession could not have the effect to bar the recovery sought by the plaintiffs. As well might it be said that possession for more than three years before the bringing of the suit under a a contract of hiring, would operate as a bar under the statute of limitations.

The principle is the same.

Nor would the right of the plaintiffs to recover be barred by the possession of the defendant, accompanied by a claim of title to the property for more than three years before the institution of the suit, if the possession was originally acquired by loan from the testator, and neither lie nor the plaintiffs had a knowledge of the adversary claim of the title of the-defendant three years before the suit was brought; and it is presumed, that the court below only intended to have expressed its opinion, in relation to the operation of the act of limitations upon a possession acquired by loan, or permission, and not originally adverse in the hypothetical opinion and direction to the jury, that the plaintiffs were entitled to recover the property mentioned in the pleadings.

In which opinion as an abstract proposition we concur, but perceive no evidence in the record to justify the direction given to the jury, to the extent it goes. The only evidence in the record on the part of the plaintiffs is, that the negro woman was the property of the testator, Francis Tolson, and was loaned by him to the defendant about nineteen years ago, as a nurse to his child, with no proof of knowledge by the testator or the plaintiffs, of any claim of title by the defendant. To a possession so acquired and held, the act of limitations does not attach.

But the direction of the court goes further, and embraces all the other negroes named in the proceedings, who are not only not proved to be the children of the woman, of whom the evidence is, that she was the property of the testator, and was loaned by him to the defendant; but there is not a word of evidence in the record, that either of them was ever owned by the testator, or loaned by him to the defendant; and in the absence of all such proof, with the evidence set out in the record, that they had been in the possession of the defendant, who claimed them as his own, for about nineteen years, and the testimony in relation to the woman also stated in the bill of exceptions, we must take it, that there was no other proof in the cause; and then, the hypothetical direction to the jury, that the plaintiffs were entitled to recover them if they believed they had been loaned to the defendant by the testator, &e. would appear to have been given not only without any evidence to support or justify it, but in the very face of the evidence on the part of the defendant, which standing alone and uncontradicted as it does in the record, in relation to all the negroes except the woman, furnishes a complete defence to the claim set up by the plaintiffs to the others.

We do not therefore concur in the opinion and direction expressed in the second bill of exceptions, and must for that reason reverse the judgment, JUDGMENT REVERSED AND PROCEDENDO AWARDED.