1. When a gift of a chattel is found or stated in a case, a delivery is presumed, because without it it is not a gift; and such possession of the donee will be presumed to continue unless the contrary be found or stated, especially if it appear that another claimed and exercised ownership from a particular subsequent period.
2. Husband and wife cannot join in detinue for a chattel, if the husband had actual or constructive possession after marriage, for by the marriage and such possession the whole vests exclusively in the husband.
(69) TAYLOR, C. J., delivered the opinion of the Court.
The only proper conclusion that can be drawn from the statement of the case is that the slave Violet was delivered to the female plaintiff by Means when the gift was made, for a transfer of possession is implied, since without it a gift is not (70) valid. This continued up to the time of the marriage, inclusive, and Spiers, the husband, then acquired, in right of his wife, the possession of the slave, which he continued to hold during the time he remained in the house of Means. It signifies nothing that he left the slave with Means upon departing from his house, for his separate right of action had attached upon the marriage; the property was a chose in possession, and would have devolved upon his representatives had he died the next day. That Spiers's wife, before his marriage, and he afterwards had possession, is further to be inferred from the fact stated that Means claimed and exercised an ownership over the slave from the time the plaintiffs left his house until his death; from which the implication is necessary that while the plaintiffs continued at his house he did not claim or exercise ownership over them. The right of Spiers, therefore, was effectually barred in 1802. In the cases heretofore decided in which it was held that the wife was properly joined in detinue, no possession in the husband appeared, and he was consequently suing for a chose in action which, without such possession, would survive to the wife. From this view of the case it results that it is unnecessary to decide the other question arising out of the operation of the supervening coverture of Mrs. Spiers upon the statute of limitations.
The judgment was therefore affirmed.
Cited: Ferrell v. Thompson, 107 N.C. 428.
(71)