1

ERROR to the circuit court of the district of Columbia, sitting at Alexandria, in an action of detinue brought by Lee against Ramsay, for a slave named Frederick.

2

The material facts appearing by the bill of exceptions taken by the defendant below, were, that Lee claimed as trustee for Kennedy, under a deed from Wilson duly acknowledged and recorded, and dated the 1st of December, 1804. The question was, whether at the date of that deed Wilson had a good title to the slave.

3

Mrs. Gordon being the owner of the slave in 1784, made a verbal gift of him to the defendant Ramsay, who was then only eight years old, and possession accompanied the gift; the slave remained with the defendant and his mother, Mrs. Ramsay, in the family of Wilson, until the year 1790, when Mrs. Ramsay, (claiming the slave as residuary legatee under the will of Mrs. Gordon, under the idea that the parol gift to her son was void,) by deed of bargain and sale conveyed the slave to Wilson, in consideration of five shillings, 'and divers other good causes.' Wilson held possession of the slave under that deed until the year 1805, when the defendant took him away, and has ever since detained him. The defendant and his mother and the slave had continued to live in the family of Wilson from the year 1784 till the year 1805.

4

The court below, upon the plaintiff's motion, instructed the jury, 'that if such a verbal gift was made to the defendant of the said slave, and such possession given to him as aforesaid, the gift is void in law, and opposes no bar to the recovery of the plaintiff.'

5

The verdict and judgment in the court below being against the defendant, he brought his writ of error.

6

Youngs, for the plaintiff in error,

7

Did not contend that the verbal gift of a slave could, under the laws of Virginia, give a good title, but that such a gift and five years' possession was a good title for a defendant in detinue, but not for a plaintiff, if his possession was wrongfully acquired. He contended that the defendant's title was confirmed by the operation of the act of assembly of Virginia, passed in 1787.

8

E. J. Lee, contra.

9

If five years' possession is a good title to Ramsay, fifteen years' possession must be a good title in Wilson; and his possession being posterior to Ramsay's, must give him a better title.

10

The case of Turner v. Turner, 1 Wash. 139. is decisive that such a parol gift cannot be given in evidence.

11

Youngs, in reply.

12

The possession of Wilson, in order to create a title, must at all events have been adverse; but his possession was the possession of Ramsay. They all lived in the same family.

13

In the case of Jourdan v. Murray, 3 Call, 85. it is decided by the court of appeals in Virginia, that a parol gift of slaves prior to 1787 may be given in evidence to prove five years' possession, so as to bar the plaintiff's recovery.

14

MARSHALL, Ch. J. There is no question that five years' adverse possession, with or without right, gives a good title.

15

MARSHALL, Ch. J. delivered the opinion of the court to the effect following:

16

This case is the same as that of Willison v. Spiers, just decided, except that in this case the court below gave the instruction which the court in Kentucky ought to have given.

17

The opinion of the court was only that a parol gift to the defendant, accompanied by possession, did not bar the plaintiff's right to recover.

18

This court gives no opinion as to the title acquired by the possession.

19

Judgment affirmed.