¶1The Court (Morsell, J., absent,) was divided in opinion upon the question, whether Mr. Miller’s possession was adverse to the plaintiff’s title.
¶2thought it was. The defendant claimed to the extent of his title under the absolute deed, without notice, which title was clearly adverse to that of the plaintiff.
¶3Thruston, J., contrd, was of opinion that the plaintiff could not have maintained an action against the defendant during the life of Mrs. Manly, because the defendant received the possession with her assent, and, therefore, the defendant’s possession must be considered as her possession; and a trustee cannot recover the possession from his cestui que trust.
¶4The jury could not agree, and the cause was continued, and came on again for trial at the present term, when Mr. Taylor, for the defendant, prayed the Court to instruct the jury, that if they should be satisfied by the evidence, that the defendant had been in adverse possession of the slave for five years before the commencement of the suit, the plaintiff cannot recover in this action.
¶5Which instruction the Court (Thruston, J., contra,) gave; and further instructed the jury that such possession by Mr. Miller, claiming contrary to the deed of trust, and under his deed from John Manly, was, if proved in law, an adverse possession.