delivered the opinion of the court.

The defendants in error brought an action of detinue in the •circuit court of Octibbeha county, to recover a certain slave in the possession of the plaintiff in error, and which slave is claimed by the wife of defendant in error as her separate property, under ;the statute of 1839.

It appears by the testimony, that the sheriff of said county, having certain executions against the defendants in error, emanating upon judgments founded on promissory notes executed by the husband and wife during the coverture, levied the same *29upon the slave in question, and sold him at public sale on the 6th of January, 1845, and that he was purchased by the plaintiff in error.

The proof in the record clearly establishes the wife’s title to the slave, which was not defeated by the sale of the sheriff.

The defence of the statute of limitations set up to bar the action, has in similar questions been adjudicated by this court, and decided against the defendant below. It is now a settled question. But it could not avail, for another reason, in this action. The levy as to the wife was void, and could not, therefore, operate to divest the title of the wife.

In the present action, we are of opinion, that no hire could be recovered. The act of 1839 vests the legal title in the wife, but the use in the husband. She, therefore, has the title to the slave and the husband the title to the hire. Distinct and separate rights of the husband and wife cannot be recovered in the same action ; but in this instance it was brought to recover the title of the wife; to this extent it can only be maintained.

Besides, we are of opinion that the purchaser has a claim to the hire superior to that of the husband.

The judgment is erroneous in blending the hire and value of the slave, and in being exclusively for damages, instead of for the property, if to be had, and if not, then for the value.

Judgment reversed, new trial granted, cause remanded.