Walker vs. Walker, adm'r, &c.

and in the presence of the administrators, or either of them, and claimed and held them as his own property, that constituted adverse possession, and the statute of limitations commenced running from the time the negroes were so taken and claimed, and the right of action accrued to the administrators of Wm. W. Walker, and if suit was not commenced within four years from the time such right of action accrued, the plaintiff is barred by the statute, and you should find for the defendant."

The Court then, at the request of defendant's counsel, charged the jury that, "Upon the death of Wm. W. Walker, the title to his negroes vested in Allen M. Walker and Mary C. Walker, his administrators, and they were bound to protect that title, and if James Walker asserted title to said negroes and acquired possession of the same as his own, and used them for four years, it constitutes statutory title by which the administrator de bonis non is bound. If James Walker held the negroes as the property of Wm. W. Walker, by the consent of Allen M. Walker, that is not adverse possession; nor would it be adverse possession if James Walker held possession under the control and direction of Allen M. Walker, for that would be holding for Allen M. Walker. But the jury must be satisfied by the evidence that James Walker so held them in order to relieve him from the statutory title."

"And while it is true that a fraudulent possession of said negroes by James Walker, in collusion with Allen M. Walker, would not be good against the rightful administrator of Wm. W. Walker, yet the jury must be satisfied by the evidence in the case of such collusion and fraud, for the law never presumes fraud; it must be proved by positive or circumstantial evidence."

"If Allen M. Walker or Mary C. Walker, or either of them, by negligence, suffered the title to these negroes to be divested out of them, and to be acquired by James Walker without asserting the right of the estate of the said Wm. W. Walker the administrator de bonis non has no right to recover the

Walker vs. Walker, adm'r, &c.

negroes; and if James Walker acquired a good statutory title by 4 years adverse possession of said negroes against Allen M. and Mary C. Walker, then it is good against the plaintiff; and if there were negligence by the first administrators they are answerable to the heirs at law of Wm. W. Walker for their default."

"Where a party sets up fraud to protect him from the effect of a statutory title, the statute begins to run in favor of the defendant as soon as the plaintiff discovers the fraud." (The Court added here, at the request of the plaintiff, "if there was fraud and collusion between James and Allen M. Walker in taking possession of and holding the negroes after the death of Wm. W. Walker, the statute of limitations did not run in their favor until the discovery of the fraud, and if James S. Walker, the administrator de bonis non, commenced his action within four years after the discovery of the fraud, he is not barred by the statute.") "And if James Walker acquired a good statutory title against Allen M. Walker, as the administrator of Wm. W. Walker, then the administrator de bonis non is not entitled to recover."

At the request of plaintiff's counsel, the Court charged the jury, "that when property is in the joint occupancy of two or more persons, and one of them has the title, the possession is in the one who holds the title. If the negroes in this case were held jointly after the death of Wm. W. Walker by Allen, James and Nat. F. Walker, and if the title was in Allen M. Walker, the possession of the negroes was in him; if the title was in James Walker, the possession was in him."

The jury returned a verdict for the plaintiff, and the defendant moved for a new trial upon the following grounds: 1st. Because the verdict is against the law and evidence in the case, and against the charge of the Court.

2d. Because the verdict is against the weight of the evidence.

3d, 4th, 5th and 6th. Because the Court erred in refusing

VOL. XXV.-6

Walker vs. Walker, adm'r, &c.

to allow the defendant to read in evidence the appraisement of the said Allen M. Walker and Mary C., administrators of William W. Walker, deceased, and their returns of sales of his property, and the appraisement of Nathaniel F. Walker, executor, and the will of James Walker, deceased.

7th. Because the Court erred in charging the jury, “if there was fraud and collusion between James and Allen M. Walker in taking possession of and holding the negroes after the death of Wm. W. Walker, the statute of limitations did not run in their favor until the discovery of the fraud, and if James S. Walker, the administrator de bonis non, commenced his suit within four years after the discovery of the fraud he is not barred by the statute."

The motion for a new trial was refused by the Court, and defendant excepted.

GIBSON, GREEN, and PEEPLES, for plaintiff in error.

SMITH, FLOYD, and B. HILL, contra.

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

I will consider the grounds in the motion for a new trial in their order.

1,2. Because the verdict was against the law and weight of evidence in the case, and against the charge of the Court. The evidence in the case was conflicting: rejecting the evidence of the two witnesses, brother and sister, who are proven to have been too young to testify understandingly, as to the facts to which their evidence relates, one of them being three years old only at the time; and the verdiet is in accordance with the preponderance of the proof. And as to its being contrary to the law and the charge of the Court, such was not the opinion of the Judge, who presided at the trial; nor is it our opinion.

3, 4, 5, 6. The next four grounds may all be considered together.

Walker vs. Walker, adm'r, &c.

We think the Court was right in not permitting the defendant to read in evidence the appraisement and returns of sales of property of the estate of Wm. W. Walker, deceased, by his administrator and administratrix. The object of this proof was of a negative character; that is, by showing that the negroes in dispute were not inventoried and sold, with the rest of his slaves, by his legal representatives, it might be inferred that they knew they belonged to old James Walker, and not their intestate. It would be going very far, we apprehend, in any case, to allow the title to valuable property to be taken. from minors by an act of omission of this sort, whatever the motive might be. But considering the relationship which existed between these parties, we hardly think the conduct of the representatives should weigh anything against the title of W. W. Walker's estate to these slaves. The administrator was the son, and the administratrix the daughter-inlaw of James Walker, who was an aged man at that time. At the end of the year, after the death of his son, William W. he claimed the negroes, and took them home with him, notwithstanding they had been in the peaceable possession of his son for about eleven years before his death. Policy, for fear of offending him, as well as filial respect, might well have induced these parties so far to acquiesce, as not to resist his will, and thereby rouse the old man to anger and resentment by inventoring and offering for sale, these slaves with the rest of the property of the intestate. Besides, the widow, was a woman who but imperfectly understood her rights; and naturally looked to Allen M. Walker, her brother-inlaw, and co-administrator, to do whatever the law required. And that is not all, she intermarried again in about fourteen years after the death of her husband, which, by operation of law, abated her letters of administration; and again, Allen M. was living with his father and might have supposed that by continuing in the joint possession of these negroes, upon his father's place, as he did, that this would be a sufficient protection of his brother's title. Under all these circum

Walker vs. Walker, adm'r, &c.

stances we do not think that any inference should be made to the prejudice of W. W. Walker's estate, on account of the failure of the representatives to assert their intestate's title to this property.

It may be that Allen M. Walker connived at the claim of his father. His interest was all on that side. It would be going very far to allow such proof to weaken even, the title of W. W. Walker's child, or children, to these negroes.

As to the appraisement of Nathaniel F. Walker, as the executor, it is very clear that this evidence was properly excluded. James Walker's will was made in 1828, when W. W. Walker was in possession of the negroes. He continued in possession until his death, in 1834. What if James Walker did undertake to dispose of these negroes by his will? It amounts to nothing. There is no evidence that the contents of the will ever came to the knowledge of W. W. Walker; much less that he sanctioned or approved of them. Indeed, until the death of James Walker, in 1849, and the publication of his will, no one knew of the testamentary claim thus attempted to be asserted, and this suit was brought within four years from that time.

[7.] The last ground is, that the Court erred in charging the jury that if James Walker and Allen M. Walker colluded together to defraud the estate of W. W. Walker out of these negroes, that the statute of limitations did not begin to run until after the fraud was discovered.

We see nothing wrong in this charge. The heirs of W. W. Walker, deceased, should not suffer by the fraudulent misconduct of their trustee, and it is not a good reply to say, that he is personally reliable to his cestui que trust. Why should not the fraud be made to effect the conscience of his confederate? Shall his title, originating in covin with the trustee, be protected? The tendency of our legislation, as to land titles, is strongly opposed to this doctrine. And it would seem to me that where the question is between an orphan child on the one side, and the orignal parties to the transac