#### *Redwood v. Riddick and Wife.

Argued Thursday, March 3d, 1814.

l. Executors — Purchase of Slaves on Behalf of Estate — Conversion to individual Use — Liability.—If a widow executrix purchase slaves for the estate of her . husband, by his direction, with money left by him for that purpose ; but afterwards hold them as her own, and apply their profits to her own use ; she is to be considered a trustee for the benefit of his estate, and responsible, in equity but not at law, to bis l6i?2.tees.

2. Same — Same—Same—Same.—And, if she marry again, her second husband, holding and using the slaves and their profits, is in like manner responsible.

3. Trustee — Statute of Limitations.* — A trustee cannot take advantage of the act of limitations, against the claim of the cestuy que trust, or of persons claiming under him.

See Spotswood v. Dandridge and others, 4 H. & M. 139.

This was a suit in the Superior Court of Chancery for the Williamsburg District, between Miles Riddick and Mary his wife, plaintiffs,; and William Redwood, defendant.

Erom the bill, answer, exhibits and depositions, it appeared, that" the plaintiff Mary was the only child of Richard Taylor and Diana his wife; that he had had a former wife, Martha, daughter of a certain James Tyree ; that, on his intermarriage with the said Martha, her daughter had given him, among other things, three slaves, which remained in his possession while that marriage subsisted, and until a short time before his death, when they were taken in execution to satisfy a debt due from the said Tyree, but were replevied ; that execution issued, upon the replevin bond, against the estate of the said Richard Taylor, who soon after died, in the year 1787 ; having previously requested that it might be levied on the slaves aforesaid, and desired his wife Diana to purchase them for his estate, with a sum of money which he left in his house ; that the said execution was levied on those slaves, which, thereupon, were purchased by the said Diana, in obedience to her husband’s direction, and with his money, on the second day of January 1788 ; the said Diana declaring publicly at the sale that she was bidding for the negroes for the estate, and that money was left in the house by her husband for that express purpose ; that, in consequence of this declaration of her’s, they sold for considerably” less than they would have done, and were struck off to her at the price of 421.12s. Od. ; that the slaves were delivered to and afterwards held by her until she married the defendant, their profits being applied to her own use.’

It farther appeared from Richard Taylor’s last will, that if the said slaves were to be considered as belonging to his estate, his widow and daughter were each to have a moiety thereof during the life of the widow ; and that, after the death of the widow, the whole belonged to the daughter. *By an amendment to the bill, Henley Taylor and William Bush (who, together with the widow qualified as executors) *91were made defendantsand,- by their answers, they declared their assent to the legacy, and willingness that this suit, should, be prosecuted by the plaintiffs. Their depositions too were taken in support of the claim without any order of conrt for that purpose ; but the circumstances proved by them were sufficiently established by another deposition.

The defendant Redwood, (who claimed the slaves as his property, by virtue of his intermarriage with the widow,) refused to deliver them after her death ; whereupon, the plaintiff Mary brought an action of detinue against him ; at the trial of which, a demurrer to the evidence was filed; and judgment was entered for the defendant. The plaintiffs then brought the present suit in. chancery. The defendant demurred to the bill, on the grounds that the plaintiff Mary, having elected the tribunal to which she chose to resort, and being there defeated,, could not afterwards resort to the Court of • Equity ; and that the subject matter of the suit was exclusively proper for the decision of a Court of Common Eaw. He also answered ; denying the equity of the bill; averring his belief that the slaves were purchased by Diana Taylor for her own use, and not for the estate of the testator ; and relying on the act of limitations as a bar to the claim of the plaintiffs.

The cause coming on to be heard, July 24th, 1810, the depositions of Henley Taylor and William Bush were objected to as incompetent ; but the objection was overruled ; the court being of opinion, “that the interest, if any, of these deponents., was so remote that they were not incompetent; and that the objection, at most, could only go to their credit, which did not appear impeachable whereupon, (the cause being heard,) the court was of opinion, that, in consequence of the minority of the female plaintiff, the act of limitations did not bar the claim ; and that the Court of Equity was the proper tribunal. It was therefore decreed that the defendant Redwood, deliver up the slaves to the plaintiffs, with the increase of the females ; that an account be taken, by a commissioner, *of the hires or profits of one half thereof from the death of Richard Taylor to the death of his widow, and of the hires or profits of them all from the last mentioned period to the time of taking said account. The commissioner made a report, in which he debited the defendant with the hires or profits of such of the slaves as were serviceable, and gave him credit for the ex-pence of maintaining such as were incapable of service ; stating a balance of 351 dollars and 92 cents in his favour. The chancellor confirmed the report, and decreed that balance to the *defendant;*from which decree he appealed.

Call, for the appellant.

The appellees, if entitled at all, had a complete remedy at law ; because the executors had assented to the legacy,(a) and such assent transfers the legal estate to the legatee.

2. It follows necessarily, that the judgment at law was a bar to this suit ;(b) since both suits related to the same subject, and were supported by the same witnesses. and documents. The judgment was a general one, — • upon the merits, — as admitted by themselves • in their bill.. An infant plaintiff is as much bound by a judgment, as an adult, is. (c),

3. The plaintiffs shew- ho title. There is no evidence, that the testator requested the purchase to be made, except the depositions of the executors, (1) which were not admissible ; because they were liable for costs ; (d),, and there was no order of court for taking their depositions. It does not appear that the widow ever meddled with the administration, till long after the sale of .the negroes. It appears, from an item in the administration account, that the money left in the testator’s house was only 281. 6s. 2d.; whereas the cost of the slaves was upwards of, 401. (2)

*4. The act of limitations is a complete bar. The executors were competent to bring the suit; and therefore the statute ran, notwithstanding the infancy of the plaintiffs.(e)

George K. Taylor contra.

The case of Hitchin v. Campbell,(f) shews, that where-ever a decision in a previous action for the same thing is relied upon as a bar, it must be shewn to have been upon the substantial, merits. Curry v. Burns only proves that, where one court has substantially had cognizance of the whole case, the other court is barred.

The plaintiffs in this case had no remedy, at law. The property was purchased by the widow in her own person. It was knocked down to her as the highest bidder. She had the legal right. The equitable right of the plaintiffs, arising from the trust for which she was responsible, could be asserted in equity only. At law, the particular money she purchased with could not be regarded. Her declaring, that she purchased for her husband’s estate, only created a trust, binding upon her in equity, but not affecting her title at law.

With respect to the plea of the act of limitations ; — the preceding suit at law employed considerable time, which ought, at any rate, to be taken out of the computation. But this being a trust, the plea can not avail at all ; for a trustee shall not take advantage of the act of limitations, (g)

Besides, no laches shall be imputed to an infant, (h) The executors had no right to bring the action ; for the widow held the property, subject to the trust in favour of her daughter, and had a right to hold it subject to that trust. The doctrine laid down *92in 3 P. Was. 309 is not law in this *country, being overruled, I conceive, by the case of Baird v. Bland & others, 3 Munf. p.

Call in reply.

The demurrer to the evidence in the suit at law was decided on the merits. If the decision was erroneous, the plaintiffs should have appealed, instead of coming into equity. A general judgment is always on the merits, unless the contrary appear.

The remedy was complete at law. If I give a man money to buy property for me, and he buys it, the property is mine. Qui facit per alium facit per se. If a testator directs money to be laid out for a child, the property purchased belongs to the child, as well at law, as in equity. If the court of common law had no jurisdiction, the suit in that court cannot prevent the act of limitations from being a bar ; for a suit irregularly' brought is no suit at all.(1) , (a)

The co-executórs could have brought suit in a court of equity against the widow, although she was executrix. At any rate, after her death, Redwood might have been sued. From that moment, if he held without title, he was a tortfeasor ; and therefore the act of limitations began to run, at that time, if not before. (2)

Friday, March 18th, 1814,

*

Trusts — statute *of*Limitations. — Cases of fraud, trust and mistake are not witbin the statute of limitations. Massie v. Heiskell, 80 Va. 804, citing the principal case.

The rule that the statute of limitations has no application to trusts, applies to all acting trustees, whether regularly appointed or not; and the trust follows the property into the hands of a purchaser with notice of the trust, and no statutory bar of limitation applies thereto. Lamar v. Hale, 79 Va. 164, citing the principal case. See further, mono-graphic *note*on “Limitation of Actions” appended to Herrington v. Harkins, 1 Rob. 591; monographic *note*on ■ "Trusts and Trustees” appended to Lee v. Randolph, 2 Hen. & M. 12.

(a)

 3 East 120; and Faris v. Ladd, in this court.

(b)

 Curry v. Burns, 3 Call 183.

(c)

 Atk. 626 ; 2 P. Wms. 519.

(1)

 Note. In this Mr. Call appears to have been mistaken. The testimony of William Lightfoot is to the same effect with that of the executors. — Note in Original Edition.

(d)

 Cogbill v. Cogbill 2 H. & M. 467.

(2)

 Note. The estate was credited, in the administration account of William Bush and Henley Taylor executors, “1788 December 29th. by cash left in the house by Richard Taylor & paid by Diana Taylor 281. 6s. 2d.”

Since from this it appears, that the 281. 6s. 2d. was paid by the widow to the other executors, after the purchase made by her of the slaves ; it appears probable, (as the plaintiffs supposed,) that this was the balance, remaining In her hands, of the money left by her husband in the house, and not (as the defendant alleged) all the money so left. — Note in Original •Edition. ■

(e)

 3 P. Wms. 309.

(f)

 2 Bl. Rep. 831 ; 3 Wils. 308, S. C.

(g)

 4 Bac. 273.

(h)

 1 P. Wms. 718.

(1)

 Note. See also Callis v. Waddy, 2 Munf. 511.

(a)

 Bronaugh v. Scott, MS.

(2)

 Note. The widow intermarried with the defendant on the 4th of February 1793, and died the 20th of October ensuing1. This suit was brought in 1804, or 1805 ; for the day when the hill was filed, or the subpoena issued, is not mentioned in the transcript of the record ; but Redwood’s answer was filed April 1st 1805. — Note in Original Edition.

the following was delivered by JUDGE} ROANE} as the ■opinion of this court.

There being sufficient evidence in this case, {independently of the depositions of the two executors,) that the former wife of the appellant purchased the negroes in controversy,with the funds, and on behalf, of the estate of Richard Taylor her former husband, so as to constitute her a trustee thereof, in behalf of those entitled to that estate, the court *has not deemed it necessary to' pass an opinion upon the legality or

competency of those depositions in reference to the objections made thereto in the argument.

The court is also of opinion, that, as the facts now disclosed exhibit this as a proper case for the jurisdiction of a court of equity, as contradistinguished from that of a court of law, the decision of the court of law, among the proceedings, in favour of-the appellant, on that ground, did not bar the appellees from resorting thereafter to the proper tribunal'.

With respect to the plea of the acteof limitations, the court is of opinion that, as the appellant married his former wife, being in equity a trustee of the said negroes for the benefit of her husband’s estate as aforesaid ; and as he remained in possession thereof, and was not amesnable to a recovery of the same by an action at common law, (a criterion which determines his possession to have been a trust,) that he is not at liberty, according to the principles of equity, to avail himself of the benefit of that act.

On these grounds, the decree is affirmed. ■