1. The statute of limitations does not apply as between bailor and bailee, and the latter cannot, by denying the bailment and claiming against the bailor, make his possession adverse.
2. Where a father, upon his daughter's marriage, before 1806, sent home property with her, it was presumed to be a gift as between the parties, and should be taken as such in favor of creditors.
3. But a declaration to the daughter accompanying the delivery, that a loan and not a gift was intended, is sufficient to rebut the presumption, and convert the husband into the father's bailee, although such declaration was unknown to the husband.
The answer denied the loan, and insisted upon the delivery of the negroes as an advancement to the defendant's wife, and (56) alleged that the defendant had always held and claimed the negroes as his own property; that when some report was circulated of the claim now set up by the plaintiffs, he had openly and publicly announced his title; had for more than three years before the death of Paine and ever since exclusive, continued, and adverse possession of the slaves, and insisted on the statute of limitations.
By the proofs it appeared that when the negroes were about being sent to the house of the defendant by Paine, he did declare to his daughter that they were lent during his pleasure, and were not designed as a gift; but it did not appear that the defendant was present. And it was also in proof that the defendant always claimed title to the negroes; that he made it known, and held them as his own, in opposition to the title now set up.
HENDERSON, J.
It has long been settled by the decisions of our courts that if a parent puts property into possession of a child who has left or is about to leave the parent, such property is presumed to be given and not loaned to the child, and therefore purchasers and creditors have subjected it to their claims, whatever may have been the private understanding of the parties. But this is a presumption of fact, and not of law. Clearly, therefore, between the parties, and all others who cannot impute either legal or actual fraud to the transaction, the true character of the act may be shown. In this case (the contest being between the parties) it appears very satisfactorily from the testimony that the (57) slaves were loaned, and not given. They, therefore, remained the property of the wife's father, and subject to his disposition.
The defendant must therefore account for the hire and profits of the slaves from the period his interest in them ceased, to wit, eighteen years after the death of his wife's father; and as it also appears from the defendant's answer that he has sold more than one-half of the slaves, those remaining in his possession must forthwith be delivered to the complainants. As to the statute of limitations, relied on in the answer, there is no pretense for its operation, either in law or equity. The possession of the defendant was that of a mere bailee; notwithstanding his declarations that he claimed them as his own, he could not by his own act throw off his character of bailee. In ascertaining the character in which he received and held the negroes, it is not material that he should have been informed that the slaves were loaned, and not given, for he came to the possession as husband, the loan being made to the wife — at least she was the meritorious cause of it, and she had full knowledge. The defendant must also pay the costs; for although the bill was filed before the expiration of the eighteen years, yet complainants had just grounds to apprehend a further waste of property from the previous conduct of the defendant, admitted by his answer.
PER CURIAM. Decree accordingly.
Cited: Logan v. Simmons, 18 N.C. 17; Green v. Harris, 25 N.C. 221; Moore v. Gwyn, 26 N.C. 278; Bennett v. Williamson, 30 N.C. 124; Weeks v. Weeks, 40 N.C. 117; Koonce v. Perry, 53 N.C. 61; Commissioners v. Lash, 89 N.C. 168; Hilton v. Gordon, 177 N.C. 345.
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