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The State vs. Pryor et al.

[JANUARY

THE STATE VS. PRYOR ET AL.

Mr. Justice WALKER delivered the opinion of the Court. There is no material difference between the facts in this case, and those in the case of The State v. Paup, ante, except that Trigg, one of the purchasers, bought a floating claim to eleven hundred and twenty acres of land, instead of a less quantity than 640. And the question is, was Trigg bound to divide his purchase so as to locate 640 acres and thereby lose 480 (the balance,) or had he the right to stand by his contract, for it is evident that he could not locate the whole amount purchased. The act of Congress, under no state of case, contemplates the division of a quarter section, which would have been necessary in order to make the location, even if all other objections were waived. The power conferred was one which could not have been executed: at all events, without abandoning a portion of his purchase. This, we think, he was not bound to do. Pryor and Carrington bought each 320 acres. This case then stands, in principle, upon the same grounds of that of The State v. Paup; and the opinion in that case is applicable to and decisive of this.

Let the decree be affirmed.

TERM, 1852.]

Whitfield vs. Browder et al.

WHITFIELD Vs. Browder ET AL.

A party relying for title to a slave upon the Virginia statute of frauds of 1785, must affirmatively prove peaceable and uninterrupted possession of the slave five years, in himself, or the person under whom he claims.

Where a father loaned to his daughter a slave, but asserted his title to her every Christmas by having her brought to his house, and then permitting her to return again, no title vested in the husband of the daughter under the above statute, his possession not being continuous and uninterrupted.

It is a well established rule that in construing evidence, it shall be so construed as to reconcile apparent inconsistencies, if the language used will admit of it, so as to give credit and effect to the whole statement of the witness.

Appeal from the Chancery side of Lafayette Circuit Court.

Bill filed in Lafayette circuit court, by the heirs of Fanny Liggin, against Whitfield, to recover slaves and their hire. The material facts of the case as they appear of record, are as follows:

John Stovall lived in Granville county, North Carolina, near the Virginia line. About 1802, his daughter Fanny married Obadiah Liggin and afterwards resided with him in the adjoining county in Virginia, about 12 miles from her father's. When the marriage took place, Stovall gave his daughter a negro woman named Peggy, who remained in Liggin's possession some five or six years, and was then sold for his debts, and bought by Stovall, who kept her a year, or so, and then verbally loaned her to Liggin's wife for her life-time, and at her death to go to her children. From that time forward, say from 1808 or 1809, until after Stovall's death, the negro woman remained in Liggin's possession, in Virginia, under this verbal loan, that possession being undisturbed except by Stovall's bringing, or having her brought to his house every Christmas; which he did, as he stated to the witnesses, to prevent the negro from being liable for Liggin's debts. It was the belief, says one of the witnesses, in North Carolina,

Whitfield vs. Browder et al.

JANUARY

that possession of a year and a day would give title. (The testimony as to Stovall having the negro woman brought to his house every Christmas, is stated in the opinion of this court.)

Stovall died in 1820, leaving a will made in June of that year. By this will, which was not recorded in Virginia, he devised to certain children, by name, of his daughter Fanny Liggin the woman Peggy and her increase, and a tract of land, "reserving the said land and negro for the use and support of my daughter Fanny Liggin during her natural life, not allowing my daughter Fanny Liggin, nor her husband Obadiah Liggin to rent, sell nor dispose of said land nor negro, only for her use, to raise and maintain her children, and at the death of my daughter Farny Liggin, the above land and negro Peggy and her increase to be equally divided amongst the above named children."

Liggin retained the negro until his death, in 1824. She was then sold at auction as part of his estate, bought by Wilkins Stovall, sold the same day by him to David Shelton, and afterwards by him to William B. Easely, brought to Arkansas, with four children in 1835 or 1836, and sold by Easely to David Vawter, and afterwards purchased by Whitfield, the defendant.

In March, 1847, Fanny Liggin died, and in January, 1848, her children filed their bill against Whitfield, to recover the negroes and hire.

The facts above stated appeared on the hearing, at which also was produced the evidence of the law of Virginia, in force from 1787 to 1821, which is copied below.

The court decreed for the complainants, upon the evidence in the case.

The clauses of the Virginia Statute of Frauds and Perjuries, under which the questions in this case arise, are, first that, in the act of 1785, in force in 1787, and thence until after 1821, by which slaves were declared to be personal estate; and second, the followingsection of the same act:

"Where any loan of goods or chattels shall be pretended to have been made to any person with whom, or those claiming under him, possession shall have remained by the space of five

FERM, 1852.]

Whitfield vs. Browder et al.

years, without demand made, and pursued by due process at law, on the part of the pretended lender, or where any reservation or limitation shall be pretended to have been made of a use or property, by way of condition, reversion, remainder, or otherwise, in goods and chattels, the possession whereof shall have remained in another, as aforesaid, the same shall be taken, as to the creditors and purchasers of the persons aforesaid, so remaining in possession, to be fraudulent within this act, and that the absolute property is with the possession, unless such loan, reservation or limitation of use or property were declared by will or by deed, in writing, proved and recorded as aforesaid."

The defendant appealed.

PIKE & CUMMINS, for the appellant, contended that five years continuous possession of the slave vested the absolute property in Liggin under the law of Virginia: that as Liggin was in possession from 1802 to 1824, only once really interrupted, for a year at most, it devolved upon the complainants to prove an open, public and notorious resumption of possession by Stovall within each period of five years, or the making and recording a deed or will, within such period, conveying the property to another, citing the Statute of Frauds, acts of Virginia, 1785, Beasley v. Owen, 3 Hen. & Munf. 449. Lacy v. Wilson, 4 Munf. 314. Gay v. Moseley, 2 ib. 543. Garth v. Barksdale, 5 ib. 103. Boyd & Swepsar v. Stainback, ib. 305. Pute v. Baker, 8 Leigh 88. Collins v. Lofftus & Co., 10 ib. 5. Louden v. Turner, 11 ib. 410. Meaux v. Caldwell, 2 Bibb 244. 4 Bibb 176. 4 Bibb 176. Ib. 337; and that the evidence in the case did not prove a resumption of possession by Stovall within each period of five years.

WATKINS & CURRAN, contra, admitting that, where property remains for five consecutive years in the possession of another under a loan, an absolute title is vested in the possessor under the Statute of Frauds of Virginia, referred to the authorities cited by the appellant's counsel, to show that a resumption of possession, for the purpose of defeating the statutory title, would pre

Whitfield vs. Browder et al.

[ JANUARY vent the vesting of title in the possessor; and contended that the onus of proving a continuous possession of five years rested upon the claimant under the statute; that any resumption of possession within the time, though temporary, if open and public, would be sufficient, (Dowel v. Bailey, 10 Yerg. 489. Gilliam v. Spence, 10 Humph. 160); and that the evidence in this cause conclusively proved a resumption of possession by Stoval, public and notorious, and for the express purpose of preventing Liggin from acquiring any title whatever in the slave.

Mr. Justice WALKER delivered the opinion of the Court.

The complainants, as devisees of John Stovall, have brought this suit to recover a negro woman and her children, and for their hire. The clause of the will, under which they claim, is in the following words: "I give to the children of my daughter Fanny Liggin, (to wit), Nancy Liggin, Mary Liggin, Henry Liggin, Quincy Liggin, Louisa Liggin, and Phebe Liggin, one tract of land lying and being in the county of Macklinburg, and State of Virginia, containing two hundred and twenty-six acres, with one negro girl Peggy, and her increase, reserving the said land and negro for the use and support of my daughter Fanny Liggin, during her natural life, not allowing my said daughter, nor her husband, Obadiah Liggin, to rent, sell nor dispose of said land nor negro, only for her use to raise and maintain her children, and at the death of my daughter Fanny Liggin, the above land and negro and her increase, to be equally divided amongst the above children." This will was made on the 20th of June, 1820, and was duly proven and admitted to record in Granville county, North Carolina, a duly authenticated copy of which is filed as an exhibit in this suit.

The validity of the will, its legal sufficiency to convey an absolute estate in the slaves to the complainants, that the slave Peggy mentioned in the will is the same slave in the possession of the defendant, that the other slaves mentioned are her children, and that the complainants are the devisees and the heirs and representatives of such devisees, are facts fully established, and enti

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