Opinion
(December Term, 1851.)
1. The objection, that the equity of a plaintiff's bill to have a division of slaves is barred by long adverse possession, may be taken by a demurrer.
2. The fact, that the adverse possession, relied upon to bar a plaintiff, was commenced and continued under a mistake as to the rights of the parties, is not an "avoidance" of its legal effects.
3. Where a mistake, made by an administrator in the distribution of his intestate's effects, has been common to him and to those really entitled, there is no ground for charging the administrator with "gross negligence or fraud."
CAUSE removed from the Court of Equity of BERTIE, at Fall Term, 1851.
Bragg for the plaintiffs.
Smith for the defendants.
John Arn died in 1814, leaving a will in which is this clause: "I lend unto my daughter Patience Harrell a negro girl, Lucy, during her natural life; then I give said negro girl to the heirs lawfully begotten of her body." Patience was the wife of Hodges Harrell, who, soon after the death of the testator, took the negro girl into his possession and kept her and her issue until his death, which was in 1839. He died intestate, and left him surviving his widow, the said Patience, and three children by her, who are defendants, and also three children by a former marriage and several grandchildren, the children of a daughter by his first wife, who are plaintiffs. One Brittain administered upon his estate and allowed the widow and her children to keep the negroes, under the belief that they were entitled to them by the will of (124) John Arn. They have kept the negroes ever since and have divided them among themselves. Brittain, the administrator, died several years ago intestate, and the defendants Richard and William Brittain are his administrators. The plaintiff Williams is the administrator de bonis non of Hodges Harrell. This bill was filed in 1848. The plaintiffs allege that the slave Lucy and her increase were in fact the property of Hodges Harrell and ought to have been divided by his administrator among all of his children and his widow, and that the administrator committed a mistake when, in 1839, he allowed the widow and her children to take the slaves as their exclusive property, and they pray that a division may now be made. They insist that their equity is not barred by the long adverse possession, because it commenced and has ever since been held under a mistake, "which they are advised will now be rectified in this Court, especially as they were not informed of their rights until a very short time before they filed their bill, they being in humble circumstances, uninformed, and not having before consulted counsel."
They insist, in the second place, that if their equity to have the slaves divided is barred as against the widow and her children it was the result of gross negligence, if not fraud, on the part of the administrator of Hodges Harrell, and that they have an equity to hold his administrators liable for the slaves to the extent of their interests as distributees of said Harrell.
The defendants demur, and the case was removed to this Court.
The first question raised is, Can the objection that the equity of the plaintiffs to have a division of the slaves is barred by the long adverse possession be taken by a demurrer? There is no doubt of it. The possession in this case not only constituted a bar to the action, but (125) confers a title by force of the statute. Hovenden v. Annesley, 1 Scho. Lef., 637. There is as little doubt upon the other question. The fact that the adverse possession has commenced and continued under a mistake as to the rights of the parties is not an avoidance of its legal effect. There is no saving clause for those who are ignorant, uninformed, in humble circumstances, and who neglect to consult counsel. "Leges vigilantibus non dormientibus factae sunt."
We are also of opinion that the plaintiffs have no equity against the representatives of the administrator by which to charge them with the value of the slaves. Under a mistake as to the rights of his intestate he allowed the slaves to go into the possession of the widow and her children. Under a like mistake as to their rights the plaintiffs allow this possession to be held so long that rights are lost. Upon what principle should the loss be shifted from them and put on the administrator? They did not remonstrate against his acts or assert any title in themselves. He acted under a mistake which was common to them all. If any one, or all of them, had been in his place they would have acted precisely as he did. What right have they, then, to charge him with "gross negligence, if not fraud"? Was he bound to know more about their rights than they did themselves? Are they not just as obnoxious to the charge of gross negligence, in sleeping on their rights for near ten years, as he? His act did not deprive them of their rights; it was their own neglect which produced that effect. The fact is there was an honest mistake all around; not one of the parties had ever heard of "the rule in Shelley's case." This, so far as the plaintiffs are concerned, was their misfortune, and the loss of their rights is to be ascribed to their ignorance and neglect in not applying to counsel in time to (126) prevent the effect of the long adverse possession.
PER CURIAM. Bill dismissed with costs.