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Reid vs. Butt, adm'r.

His Honor failed to charge upon this point, not being requested to do so, and for this omission plaintiff excepted.

The presiding Judge overruled the motion for a new trial, and plaintiff excepted.

Norton, for plaintiff in error.

OGLESBY, contra.

By the Court.-BENNING, J. delivering the opinion.

There was evidence on both sides; and that on the one side, about balanced that on the other. When this is so, there can be no reason for disturbing a judgment refusing a new trial. This Court, then, ought not to disturb the judgment of the Court below.

The verdict having been for the defendant generally, the point as to whether the plaintiff, if entitled to recover at all, was entitled to recover for the maintenance of the negro, became of no practical importance.

Judgment affirmed.

JOAN REID, plaintiff in error, vs. John Butt, adm'r, defend

ant in error.

[1.] To entitle an administrator to maintain trover against the vendee of his intes

tate's son and heir at law, it is not necessary to show an order of the Ordinary au

thorizing a sale of the slaves. [2.] Where an unmarried son lives with his father, the presumption is that the property on the place belongs to the father. If the father lives with the son, the pre

umption is the other way. [3.] Possession of property is prima facis evidence of title ; and where the possession

is joint, the presumption is in favor of the party who exercises principally, if not exclusively, acts of individual control and dominion over the property.

Reid vs. Butt, adm'r.

[4] Where it turns out, upon the trial of a cause, that a paper purporting to be a deed

of gift to certain elaves not specified, has been in existence and destroyed by the donor, no advantage can be taken of the instrument; nor can any presumptions be made to the prejudice of the party making it, unless it be first made to appear that the paper had been executed and delivered; and that the negroes in dispute were included in it.

(5.) A purchases of B a slave; C, the father of B, dies, and D, the administrator of

C, brings an action of trover against A to recover the negro, alleging that it was in the possession of bis intestate at the time of his death, and he was the owner

thereof. Held, That the plaintiff was entitled to recover the whole property, aluer, if the de

fendant had made proof that there were no debts due by the estate ; in that case the plaintiff could only recover the interest or share of the other distributee or distributees of the estate in the property.

Trover, from Union county. Tried before Judge Rice, at November Term, 1857.

This was an action of trover by John Butt, administrator of Robert C. Laughter, deceased, against John Reid, to recover a negro man named Cyrus, alleged to belong to the estate of his intestate.

The defendant set up and claimed title to the negro under a purchase from Robert Laughter, a son of plaintiff's intes

The father and sou lived together, and the testimony was somewhat conflicting as to the ownership and control of the negroes on the place. But as the exceptions go to the rulings and charge of the Court only, it is unnecessary to detail the evidence.

After the testimony was closed, defendant moved for a nonsuit, which the Court refused, holding that an administrator could maintain an action for property which belonged to his intestate at the time of his death, from one claiming under an heir at law, without showing an order of sale from the proper Court. To which decision defendant excepted.

The Judge charged the jury that where a son lives with his father, the presumption is that all the property on the place belongs to the father, and if the property is the son's it

Reid vs. Butt, adm'r.

devolves upon him, or those claiming under him, to prove it. But if the father lives with the son, then the presumption is otherwise and the onus changed.

The Court further charged the jury that the possession of property was prima facie evidence of title, and if it was proved that the negro in controversy was in possession of plaintiff's intestate in his lifetime and at the time of his death, that was prima facie evidence of title to the same. And if it was proven that he hired him out, that was higher evidence of title; and if he received the price of the hire, that was still higher evidence.

After stating to the jury that defendant relied upon a deed of gift, which had been destroyed, the Court charged the jury, that to render that deed available it was incumbent on defendant to prove its contents, who made it, what property was therein conveyed, and that it was duly executed, and that Cyrus passed by said deed to Robert Laughter the son. And further, that if the father, after making the deed of gift, retained possession of it, and never delivered the same, he had a right to destroy it; for without delivery it was of no effect. And if the deed was made by one having no title to the property, then no title could thereby pass.

The Court further charged, at the request of defendant's counsel, that if the negro came into the family by a deed of gift to the son, then they should find for the defendant, whether the donor owned the property or not. That is the father disclaimed ownership of the negro, and he and his son had a joint possession, that disclaimer may be considered as evidence of title in the son. That there may be cases where the father lives with his son, and if they should be of opinion that this is one of the cases, then the presumption that the property belongs to the father does not arise. To all of which charge defendant excepted.

The jury found for the plaintiff $1200, which might be dis

Reid vs. Butt, adm'r.

charged by delivering up the negro in ten days, and further, $739 20 for hire.

Whereupon defendant tenders his bill of exceptions and alleges as error the rulings and charges above excepted to.

WM. Martin, for plaintiff in error.

PHILLIPS, MILNER, CHISOLM, & WOFFORD, for defendant in error.

By the Court.-LUMPKIN, J. delivering the opinion.

[1.] Should a nonsuit have been awarded in this case? We hold not; neither upon the ground that the plaintiff showed no order of sale from the Court of Ordinary, nor on account of the insufficiency of the proof.

Suppose it be true that the boy Cyrus was sold by the son in the lifetime of the father, although there is positive and unequivocal proof that he was in the possession of the father at the time of his death, still there is testimony enough in support of the father's title to carry the case to the jury.

[2.] The next objection is to the charge of the Court as to the presumptions which arise from the possession of property where the father and son live together. After scanning carefully this portion of the charge of the Court, we see no error requiring correction. And further, we think that the proof in the case warranted the charge upon this point.

[3.] The Court charged, amongst other things, that "the possession of personal property was prima facie evidence of title; that hiring out the property was still higher evidence of title in the hirer; and that if he received the pay as his own, it was higher evidence still of title in the hirer.”

Perhaps as an abstract proposition, or one as applicable to parties generally, who are litigating respecting personal property, this charge would be obnoxious to the criticism made upon it by defendant's counsel, and could hardly be sustained. But understanding it as we do, and as made in reference to the facts of the case, we are inclined to think it was right.

Reid vs. Buit, adm'r.

Here the dispute is between father and son, as to the ownership of a family of negroes; or to speak more accurately, between the administrator of the father and the purchaser under the son. The father, in his lifetime, and son lived together; no paper title is shown in either. The son came out first to this State ; rented a piece of land, and then the father followed, accompanied by these slaves. The family consisted of father, this son and a daughter. The question of title is mainly dependent upon the question of possession. And the presumption is in favor of one or the other, according to the preponderance of individual acts of control and dominion exercised by each. In view of this state of things the Court instructed the jury, that possession is prima facie evidence of title; and in determining the question of possession, if the father hired out the slaves, the presumption is strengthened that he owned the negroes; if he received pay for them as his own, this is higher evidence still that he, and not the son, owned the slaves.

[4.] It is insisted that all this should count for nothing, inasmuch as it does not appear that the son had notice of this hiring. The jury were not only authorized to infer that the son had notice, but they could not believe otherwise. In 1846 and 1847, two of the negroes, Cyrus, the boy in controversy, and Harriett, a girl, were hired by the father to the witness, Curtis. The old man took the negroes to the witness and brought thein away, when the term of service had expired. He paid the wages monthly to the father. Another witness hired another one of these negroes from the old man, for one year, and returned the slave before the old man died. Another witness hired another one of these negroes six or eight months in the year 1849. Living together as they did, it is impossible for the son not to have known of these oft-repeated and long continued contracts of hiring. He was never heard to complain. And the Court, in substance, charged, and so we think, that mere acts of ownership, under the circumstances, indicated pretty strongly that

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