Nations v. Hawkins' Adm'rs.

COLLIER, C. J. The deed of the intestate under which the plaintiff claims, reserves to the former during his life, the use of the slaves described therein. This reservation of course entitled the intestate to the possession, and continued in him such a right of property as was necessary for the protection of the usufruct. This being the case, it is clear, that although a court of equity would in a proper case have so exercised its powers as to secure to the donees under the deed, the enjoyment of their remainder, yet they could not during the donor’s life have maintained an action which requires that the plaintiff should have not only a right of property, but a present right to the possession. It is laid down in all the elementary works upon pleadings and actions, that trover would not lie at the common law against an executor or administrator upon the conversion of his testator or intestate ; and our statute merely declares that it shall survive for and against them. [Clay’s Dig. 313, § 2.] This enactment obviously presupposes that to subject a personal representative to the action of trover, his testator or intestate must have been thus suable. This is indicated by the employment of the word “ survive,” which in the connection it is found, means to outlive the decedent, or in [863] other words, that the action shall not as at common law.die with the person; but as a remedy, shall retain its vitality either for or against the representatives of his estate, according as the right may be. In order to support the action of troveiv, it is said the plaintiff must at the time of the conversion have had a. property in the chattel, either general or special; he must also have had the actual possession, or the right to the immediate possession. [1 Chit. Plead. 150, and cases there cited.] It has therefore been held that where the furniture leased with a house was wrongfully taken in execution by a sheriff, the landlord could not maintain trover against the sheriff pending the lease, but should have declared specially in an action on the case. [7 T. Rep. 9; Willes’ Rep. 56.] And as tro-ver is founded on the right of property, either general or special, it is allowable for the defendant to show a right of property in a third person when the conversion took place. [2 Hayw. Rep. 139, 179; Taylor’s Rep. (N.C.) 152.] In Andrews v. Shaw, 4 Dev. Rep. 70, it was decided that the plaintiff in trover must have both the right of property and of present possession, and when a person who had hired a slave for a year sold him, it was held the owner could not maintain trover during the term, although the defendant claimed the absolute title to the slave. [See also 2 Murp. R. 240, 302; No. Ca. T. R. 187.] Starkie, in his treatise on Evidence, (3 vol. p. 1483,) says in general, possession of a chattel is prima facie evidence of property in the possessor; but if the plaintiff has never had possession of the chattel, or if the contest be not with a mere stranger, but with one who will succeed in his proof of title, unless the plaintiff can prove a better, it is necessary for the latter to resort to strict evidence of title. But the right of possession must exist at the time of the conversion. [Ibid, 1491; 2 Saund. on Plead. and Ev. 873; 2 Esp. Rep. 465; 3 Camp. Rep. 417; 4 B. & C. Rep. 941; 7 D. & R. Rep. 896 ; R. & M. Rep. 99; 5 B. & A. Rep. 826; 1 Burr. Rep. 31; 1 Bla. R. 67; 1 M. & P. R. 556.] It is clear, from what has been said, the plaintiff was not entitled to the possession of the slaves in question until after the death of the intestate ; consequently, the latter was not [864] suable in an action of trover, and his administrators we have seen are not answerable to the plaintiff in that form of action. The third count in the declaration, after alledging a conversion of the slaves by selling or otherwise disposing of them to the intestate’s use, avers that the plaintiff is thereby greatly aggrieved, injured and prejudiced in his reversionary estate and interest, to wit, to his damage fifteen hundred dollars ; and concludes thus: “ the said defendants, administrator, &c. as aforesaid, though often requested, have hitherto wholly failed, neglected and refused, and doth still fail, neglect and refuse to pay the said sum of money, or any part thereof, to the said plaintiff, to his damage,” &c. The conclusion of this count cannot exert such an influence upon the supposed cause of action disclosed in it, and the manner in which it is stated, as wholly to change its character from ex delicto to ex contractu. Each count indicates by its frame that it belongs to the former category. It can hardly be possible that the plaintiff is remediless, yet we have sufficiently performed our duty by considering the points presented for our decision, and have only to add, that the judgment of the circuit court is affirmed.