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tion of his ownership, for the period which, under the law, would bar an action for its recovery by the real owner, the former has acquired a good title a title superior to that of the latter, whose neglect to avail himself of his legal rights has lost him his title” (10a).
§ 44. Tacking adverse holdings. If A has converted property and held for the statutory period and then sells it to B, the latter is protected because, as A had acquired title before the sale, he conveyed a good title to B. When, however, A has held the property for a part only of the statutory period and sells to B who holds for the remainder of the period, so that neither one has been in possession for the entire period, although the successive possessions of the two together exceed it, a more difficult question arises. As B has made a new conversion by buying the property, it is contended that a new cause of action has arisen and the statute begins to run afresh. Accordingly, where the plaintiff was owner of a lease which his son, without the plaintiff's knowledge or consent, deposited with one Bates to secure a loan, this occurring more than the statutory period before the plaintiff brought his action, and later and within the period Bates became bankrupt, and his trustee sold the lease to the defendant; it was held that the plaintiff might maintain an action for detinue and conversion against the defendant (11).
There is little authority on the question, but this view seems to be the one rather more generally taken. It is
(10a) Campbell v. Holt, 115 U. S. 620.
argued, however, on the other hand, that the statute passes title, not by its terms but by its effect, and it ought to have the same effect if the true owner has been out of possession the statutory period whether one or more have been in possession (12). The latter view is ordinarily taken where real property has been in the hands of successive adverse holders for the statutory period. See Title to Real Estate $$ 144-60. in Volume VI of this work.
$ 45. Increase of property in adverse possession. In Bryan v. Weems (13) certain slaves were conveyed to trustees in trust for a woman for her life and after her death for her children equally. She had possession during her life and after her death her husband continued the possession. By his will he disposed of the slaves and their increase. Certain of the children brought a suit against the trustee and the representatives of the husband and the legatee for an accounting and a division. It was held that, as the husband had had adverse possession after his wife's death for the statutory period, the statute of limitations was a bar to the suit and that the ownership of the increase of the female slaves followed that of their mothers, although the offspring themselves might not have been in adverse possession for the full period. The defense of the statute relates back to the first taking and carries with it all intermediate profits. The increase follows the mother as an incident unless as
(12) There are some dicta in support of this view. See Bohannon v. Chapman, 17 Ala. 696, and 3 Harvard Law Review, 323.
(13) 29 Ala. 423.
to such increase some act be done before the bar against the recovery of the mother is perfected which prevents the application of this rule. The rule applies to cattle and any property subject to increase.
SECTION 3. BY GIFT OF CHATTEL,
§ 46. Delivery of gift generally necessary. Irons v. Smallpiece (14) was an action of trover for two colts. The plaintiff's father had given them by parol to the plaintiff, but the colts were never delivered to plaintiff and remained in his father's possession until the latter's death, after which his executrix, the defendant, refused to give them to the plaintiff. It was held for the defendant. A gift of a chattel is not good without delivery.
In Cochrane v. Moore (15) the court made an elaborate examination of the question and came to the conclusion on the authorities that according to the old law no gift or grant of a chattel was effectual to pass it, whether by parol or by deed, and, whether with or without consideration, unless accompanied by delivery; that on that law two exceptions have been grafted, one in the case of a gift by deed and the other in the case of a contract of sale; but that, as regards gifts by parol, Irons v. Smallpiece (16) was correctly decided and is still the law.
§ 47. What amounts to a delivery. In Green v. Langdon (17) it was held that an endorsement by a mortgagee of payment on a mortgage, he intending to make a gift to
(14) 3 B. & Ald. 551.
the mortgagor, was a good gift of the debt to that extent to the mortgagor, because there could not be an actual delivery of part of the debt and all was done that could be done. And where a father procured a cattle brand to be recorded in the name of his child, and with it branded certain cattle, under circumstances that showed he intended to give them to the child, it was held that there was sufficient delivery to consummate the gift (18). Where the defendant said to the plaintiff, “I give you all my corn and all my hogs,” and then took an ear of corn out of a wallet and said, “Here, take of the corn I have given you,” and gave plaintiff the ear of corn, it was held to be a good gift of the corn but not of the hogs (19).
In Cooper v. Burr (20) A had been confined to her bed by illness for a number of years and had kept in her room a bureau and trunks containing gold and silver coin and jewelry. About six weeks before her decease, handing to the plaintiff, who lived with her and had taken care of her, the keys of the bureau and trunks, she said: “Mary, here are these keys. I give them to you. They are the keys of my trunks and bureau. Take them and keep them and take good care of them. All my property and everything I give to you.” It was held that the language of the donor, accompanied by the delivery of the keys, evidenced the intention of the donor, and placed the donee in possession of the means of assuming absolute control of the contents at her pleasure and constituted a valid gift of the coin and jewelry in the trunks and bu
(18) Hillebrant v. Brewer, 6 Tex. 45.
reau. In Hatch v. Atkinson (21) the court said: “Although delivery of the key of a warehouse or other place of deposit, where cumbrous articles are kept, may constitute a sufficient constructive or symbolical delivery of such articles, it is well settled that delivery of the key of a trunk, chest or box, in which valuable articles are kept, which are capable of being taken into the hand, and may be delivered by being passed from hand to hand, is not a valid delivery of such articles. The rule is that the delivery must be as perfect and complete as the nature of the articles will admit of." The last two cases, however, may well be distinguished. In Hatch v. Atkinson the trunk was placed, after the keys were given, in the donor's own closet, where it remained under his own dominion and control, while in Cooper v. Burr the donee had access to the trunks and bureaus and full power of control over them although they were in the donor's room. Hatch v. Atkinson is more strict than the generality of cases, and it would seem that the remarks quoted above from that case should be taken to apply only where the donee does not have access to and power of assuming dominion over the trunk (22). Where the donor gave the key to a cupboard to the donee with the statement that he gave her the contents thereof, and the donee opened the cupboard and hastily examined the contents and then locked the cupboard and kept the key, the same court that decided Hatch v. Atkinson held it to be a good delivery (23).
(21) 56 Me. 324.