A., owning a slave, died intestate, and no administration was ever granted on his estate. The next of kin took possession of the slave and kept him for seven years. They then sold him to B., who kept him for ten years, and he was then sold by B.'s executors to C. After remaining in C.'s possession four years he run away, was caught and confined in jail, from which he was taken by D., who, upon demand, refused to deliver him to C. Held, that C.'s possession entitled him to an action of trover against D., who was a mere wrongdoer setting up no title in himself.
RUFFIN, C. J.
Without having recourse to the presumption of a good title from a sale by the next of kin and upwards of twenty years possession by the plaintiff and those under whom he claims since the death of the original owner, Rhodes, the Court is of opinion, that under the circumstances, the plaintiff's possession entitled him to hold the slave as against the defendant, who is a mere wrongdoer, and, therefore, that he may maintain this action of trover. It is distinguishable from the cases of White v. Ray, 26 N.C. 14, and Barwick v. Barwick, 33 N.C. 80, in the former of which the action was brought by the administrator, and in the latter the true owner was in existence and known. But this is more like the case of the lost jewel, for which the finder was allowed to maintain trover against the goldsmith, to whom it had been submitted for his opinion and who refused to deliver it back. Armory v. Delamirie, 1 Str., 505. For, although the rightful owner was not known then, it was known that there must be some owner, and, therefore, if the mere possibility of an owner appearing or coming into existence would defeat the action, the plaintiff could not have had judgment. It would seem, therefore, that if the defendant had received the slave from the plaintiff and refused to redeliver him, or had taken him from the plaintiff's actual possession, he would be liable in trover. This is much the same, for the plaintiff did not lose his possession by the slave's running away, but he was still the subject of larceny as his and in his possession. Indeed he was taken by the defendant and committed as a runaway. From whom? Plainly from the person in whose possession he was at the time of absconding, and, as such, he was rightly detained as a (377) runaway. The defendant, therefore, cannot bar the plaintiff by setting up his subsequent wrongful act of taking the slave out of prison and holding him against the plaintiff. The defendant wrongfully interfered with the plaintiff's possession, which gave him such a right of property as entitled him to hold against every person, except an administrator of Rhodes, if one should ever exist; and there being none, he may have trover against a mere wrongdoer.
PER CURIAM. Affirmed.
Cited: Branch v. Morrison, 50 N.C. 17; Thompson v. Andrews, 53 N.C. 126; Maxwell v. Houston, 67 N.C. 306; Russell v. Hill, 125 N.C. 473; Vinson v. Knight, 137 N.C. 412.