#### *Rankin v. Bradford and Others.

March, 1829.

(Absent Brookjk, P.†)

Bequest of Slaves in Trust for Maintenance of Testator’s Daughter and Her Husband during Their Lives- Remainder to Children — Case at Bar.- -E. G. bequeathed *644 slaves to 0. C. and 3?. T. trustees, in trust to apply ttie profits to maintenance of testator’s daughter, J. B. and her husband, S. K. B. and their children, during lives of daughter and husband, and of survivor, remainder to the children of the daughter by that husband: both trustees declined the trust: no trustee was substituted: the ex’or delivered the slaves to Mrs. B. her husband being then in Europe, where he died: B. then married V. who, in 1798, sold R. all the trust slaves, for his wife’s life, R. having notice of the trust: R. removed them from Fredericksburg to Augusta, held some there, gave away some, sold others: the second husband, V. died in 1806. Upon bill in chancery, by Mrs. V. and her children, by B. against R. praying discovery of names &c. of the slaves and their increase, restoration of them and account of profits, and (on a charge that R. would remove the property out of the state) an injunction to restrain him from doing so; and R. not pleading to the jurisdiction: Dficrccd

Same — Right of Second Husband to Slaves. — 1st. R, had no right to hold the slaves, even during Mrs. V.’s life, as they were a trust subj ect, and the profits applicable to maintenance of her and her children; though quajre how far her interest passed by her second husband’s sale to R.

Same — Discovery—Jurisdiction of Court of Equity.— 2ndly. The court of chancery had jurisdiction of the case; because the charges in the bill of the necessity of a discovery, and of the design to remove the slaves out of reach, saved the bill from being demurrabie, and if that charge were only colourable, R. should have pleaded to the jurisdiction; and (chiefly) because the slaves were a trust subject, represented by no trustee who could sue at law, and which equity alone could apply to the purposes of the trust.

Same — Statute of Limitations‡ — Application Where Party Buys with Notice of Trust. — 3rdly. R. could not protect himself under statute of limitations; because he bought with notice of the trust, and so was charged with it; and because his removal of the slaves to a distant county, thus keeping owners in ignorance where they were, was an obstruction to the assertion of their rights by action, precluding him from-pleading the statute, within § 14,1 Rev. Code, ch. 128, p. 491.

Edward Carter, by his last will and testament, proved and recorded in June 1792, made the following- bequest : “I give and bequeath to my son Charles Carter and Mr. Francis Thornton, four slaves, one male and three females, not under the age of ten nor over the age of -thirty years, in trust for the purpose of applying the profits of the said slaves *to the maintenance of my daughter Jane Bradford and her husband Major Samuel K. Bradford and their children, during the lives of my said daughter and Major Bradford, and the longest liver of them, and after their deaths to be equally divided among the children of my said daughter Jane by the said Bradford.” Charles Carter, the executor of the will, and one of the trustees, in 1793, had the four slaves selected from his testator’s . estate ; and, he and Thornton both declining to act as trustees, he delivered them to Mrs. Bradford, her husband being then in Europe, whence he never returned. He died there. The trust slaves remained in Mrs. Bradford’s possession during her widowhood,' which continued four or five years : she married John Verminet, and thus the property passed into his possession. Verminet, in November 1798, sold to Richard Rankin, for ^190. all the trust slaves (then six in number) for the life of his wife ; and she joined him in the bill of sale. After this, Verminet went to New Orleans, and there died about 1805 or 6. Rankin gave some of the slaves to his sons-in-law, J. A. Frayser and W. G-. Dudley and he and they sold the absolute property of some of them to Thomas Deverick and Thomas Johnson.

In 1819, Mrs. Verminet and her children by Bradford, brought this suit in the superiour court of chancery of Staunton, against Rankin, Frayser, Dudley, Deverick and Johnson. They set forth in their bill the facts as-above stated, with this difference, that the bill alleges that the trust slaves were delivered by the executor of Mr. Carter, to Major Bradford, .whereas they were in truth delivered to Mrs. Bradford : and they stated, that at the time of Verminet’s sale to Rankin, Mrs. Verminet was under the disability of coverture, and her children under that of infancy, and so remained for many years, afterwards ; that Rankin was apprised of the trust and every other circumstance affecting the property ; that he removed the slaves-from the neighbourhood of Fredericksburg to the county of Augusta, and thus concealed the locality of the subject from the real owners *of it; that Deverick and Johnson also purchased of Rankin, the slaves held by them, with notice of the true state of the title, and that Rankin’s sons-in-law were mere volunteers. They prayed a discovery of the names, ages and residence of the slaves ; and, suggesting that Rankin and his sons-in-law would probably remove the property out of reach, they asked an order to-restrain them from doing so. And they demanded the slaves and their increase, and an account of profits.

Rankin, in his answer, admitted that he had bought the slaves of Verminet, for the life ,of his wife ; and he exhibited the bill of sale. He admitted also, that at the time of his purchase, he had notice that the slaves-were held in right of the wife ; but in what manner she acquired the right, he said, he had no information. He admitted, that he had removed the slaves to Augusta, but denied that he had taken any pains to conceal them.

Deverick and Johnson, in their answers,, stated, that they purchased of Rankin the absolute property of the slaves held by them, without notice of any trust affecting them, or other defect in the title, and paid him full prices : and they relied on the statute of limitations.

As to Frayser and Dudley, the bill was taken for confessed.

The answers of Deverick and Johnson were fully supported by the proofs. The proofs also identified the slaves, and established all the material facts of the case, as above stated.

The chancellor dismissed the bill as to Deverick and Johnson ; but, being of opinion, that Rankin was not entitled to hold the possession of the trust slaves or any of them, and reserving the question how far Verminet could convey a good right to such portion of the profits of. the subject as were by Mr. *65Carter’s will properly applicable to the support of Mrs. Verminet, he decreed, that Rankin, Frayser and Dudley, should deliver all the trust slaves then held by them respectively, to the marshal of the court, to be hired out by *him &c. And that these defendants should render accounts of the values of the slaves by them respectively sold, and also of the profits, as well of those which had been sold, as of those which remained in their possession. From this decree, Rankin appealed.

Stanard, for the appellant.

The case presented by the record is not properly relievable in equity. The bill, indeed, prays a discovery of the names, ages and residence, of the slaves in question, and an order to restrain the defendants from carrying the slaves away : but, as it appears from the sequel, that no such discovery was in fact wanted, and as a demand of bail in an action of detinue, would have answered every purpose of the restraining order, it is apparent, that the prayer of the bill in these particulars, was only designed to give colour for the jurisdiction ox the court. If the appellees have a rightful claim to the property, that claim is founded on a legal title. The legal estate must be in some one. It either abides in the executors of Mr. Carter ; or, if by disavowing and declining the trust, as they did from the beginning, they divested themselves of the legal estate in the subject, that was done only by their transfer of the possession, and with it the legal estate, to Mrs. Verminet, during the life of her first husband Bradford ; and the possession being thus vested in Bradford, jure mariti, time perfected the right in him, and he had a complete legal title, which yet remains in him or his representatives. And if Bradford held the subject cloathed with the trust created by Mr. Carter’s will, still he held the legal estate in it. The holder of the legal estate (whoever it was) had complete remedy at law by action of detinue.

But Rankin claimed and held adversely to the legal estate, wheresoever it abided ; and the statute of limitations affords him a complete protection against the claim of the appellees. There is no direct proof, that he knew these slaves were a trust subject, or had any notice of the rights of the cestuis que trust, so as to charge him with the trust, Bind thus to deprive him of the protection of the statute. Nor can such notice be fairly inferred from the fact, that he purchased Mrs. Verminet’s life estate in the property ; for it is a very common case for a married woman to have a life estate in slaves, not subject to any trust ; as, for instance, slaves held as her thirds of a former husband’s estate.

Johnson, for appellees.

The property in question is a trust subject : the executors of Mr. Carter did not, and could not, by renouncing the trust, extinguish it : and there is nothing to take this trust, more than any other trust, from the cognisance of a court of equity. If there was any remedy for the cestuis que trust at law, it was an inadequate one ; for the property is now not only to be restored to them, but tobe settled and disposed of to their use, according to the intention of the donor; and this a court of law could not do. But there was no remedy at law. When the executor of Mr. Carter assented to the legacy of the slaves in question, and delivered them to Mrs. Bradford, he divested himself of the legal title, as executor : when the trustees renounced the trust, they abandoned their legal title. The regular course would have been to apply to the court to substitute a trustee. As it was, the legal estate was and is wholly unrepresented. Mrs. Bradford, during the life of her first husband, during her widowhood, and after her marriage with Verminet, held the mere possession ; the trust still subsisting, though a proper trustee was wanting. And if it can be supposed, that by the delivery of the property to Mrs. Verminet, during the life of her first husband Bradford, the legal estafe vested in him, so as to.pass at his dealh to his representatives, it does not appear, that there was ever any personal representative of his estate, and it is almost certain, from .the circumstances disclosed, that there was none.

Then, as to the statute of limitations. If Rankin purchased with notice of the trust, he became himself a trustee, and cannot avail himself of the statute. Now, he must be ^charged with notice of the trust: he purchased only a qualified interest in the subject, the life estate of *a.*feme covert, and required her to join her husband in the bill of sale, or rather required her husband to procure her to join in it; and it is not to be imagined, that he did not inquire into, and inform himself of, every circumstance affecting the title. Indeed, the very fact of a purchase of a qualified interest in such property, infers notice of the nature of the right, and the source from which it was derived to the vendor. Again ; the trustees named in Mr. Carter’s will having declined to act, and no trustee having been substituted in their stead, the legal estate was unrepresented : in which regard, the case is analogous to that of a decedent’s estate remaining long unrepresented by any executor or administrator, which has been held to avoid the operation of the statute of limitations. Bastly, Rankin purchased this trust property, when all the beneficiaries were in a state of disability, (Mrs. Verminet under coverture, and all her children infants) ; and removed it to a distant pari of the country, and thus kept them in ignorance of the locality of the property, without a knowledge of which they could not assert their claim to it : and the case falls within that saving of the statute of limitations, which prevents persons, who by any indirect ways or means, defeat or obstruct actions ihat lie against them, from pleading the statute in bar of such actions. 1 Rev. Code, c. 128, § 14, p. 491.

*

The court did not assign the reason on which it founded this resolution. It was that (it is presumed) which was suggested in Mr. Slanard’s argument of the point. — Note in Original Edition.

†

He did not sit, because he was related to the appellees.

*64Equity Practice. — The principal case is cited in Sheppards v. Turpin, 3 Gratt. 395; Handly v. Snodgrass, 9 Leigh 493; Armstrong v. Pitts, 13 Gratt. 243.

‡

 Stalute of Limitations — Trust Subjects — Purchase with Notice. — In Lamar v. Hale, 79 Va. 164, it is said: “The trust follows the property into the hands of a purchaser with notice of the trust, and on statutory bar of limitation applies thereto. *Rankin v. Bradford,*1 *leigh*171; Hunter v. Spotswood, 1 Wash. 145; Redwood v. Riddick, 4 Munf. 222; Turner v. Campbell, 3 Gratt. 77; Rowe v. Bentley, 29 Gratt. 762: 2 Perry on Trusts, §§ 859, 864, 865: Hill on Trustees, 264, note 3; Angel on Limitations, §§ 183, 189; 2 Pomeroy’s Eq„ § 1052.” See monographic «ote on “Limitation of Actions” appended to Herrington v. Harkins, 1 Rob. 591.

CARR, J.

It seems to me, that the case is decidedly against the appellant.

Several objections to the decree, were taken in the argument. It was first contended, that this was not a fit case for equity. The bill being for a stock of negroes, which in the lapse of twenty years had increased very much, and were much scattered, the plaintiffs averred, that they could not without the aid of a discovery, ascertain the names, sexes and residence, of the slaves, so as to pursue their legal remedy. They also stated, that the defendants were *about carrying them beyond the jurisdiction of the *66court. If this had been supposed *by*the defendants colourable merely, they should have pleaded to the jurisdiction of the court. This court has sustained the jurisdiction in several cases of this sort. These allegations certainly saved the bill from a demurrer.

There seems to me, however, a much surer ground for the jurisdiction of equity. The bequest of these slaves, created a trust for the support and maintenance of a feme covert and her infant children ; a trust, not to be discharged by a single act of the trustees, but requiring their care and attention, during the lives of the husband and wife and the survivor. During all this time, the trustees were to apply the profits of the slaves to the support and maintenance of the testator’s daughter, her husband and children ; and then the slaves with their increase were to be divided among the children. To mark his anxiety to keep these negroes not only, beyond the controul of the husband but the wife also, the legal title, and the whole management of them, are given to the trustees ; and they are to apply the proceeds of their labour, at their discretion, to the support of the cestuis que trust. This appears to me a case peculiarly proper for the protection and superintendence of equity.

On the death of the testator, his executor selected the slaves. But the trustees, from the first, declined to have any concern with them, and they went into the hands of the feme covert, her husband being in BYurope. Can it be doubted, that equity would instantly have interfered, if any one as next friend either of the wife or children, had filed a bill, stating the refusal of the trustees to act, and praying the court to set up the trust, and preserve the subject, either by compelling "the trustees to act, or by substituting others? Can there be a subject more appropriate to equity, than to preserve to the feme covert and her infant children, the bounty of the testator, and cause it to flow in the channel he had marked out for it? And if equity would have interfered at first, if called on, is not the call equally imperative *now ? The trust fund continues ; the purposes for which the trust was raised continue. Nor, under the will, can the slaves be divided among the children, till the mother’s death. If the names and places of abode of all the slaves and their descendants could be discovered, so as to enable the plaintiffs, in the names of the trustees, to bring actions of detinue, and recover at law, the court of law could go no further. It could not execute the trust, or make one of the arrangements necessary to preserve the property, or appropriate the profits to the purposes intended by the testator. In equity, one suit embraces the whole subject; a decree for the recovery of the slaves; an account for the hires and profits ; and, finally, when these points are adjusted, the whole trust fund may be committed to new trustees, with such directions as may ensure the due execution of the testator’s intention, and with leave to the parties interested to apply to the court, in case any future negligence or abuse of the trust should render it necessary. There is no force in the objection to the jurisdiction.

It was next contended, that the statute of limitations was a bar to the recovery. I think not. Of this statute I have heretofore had occasion to declare my opinion. I consider it a wise and salutary law, tending to the security of titles, the discouragement of litigation, the repose of the community. I shall always be ready to give it a fair and full support: but to a case like this, I can never think that it does or ought to extend.

Courts of equity, not being within the words of the statute, apply it by analogy. In doing this, they must exercise a sound discretion. The defendant Rankin bought the slaves from Verminet, and bought them for the life of Mrs. Verminet only, as his bill of sale shews. He acknowledges too; in his answer, “ that he was informed, at the time of his purchase, that the slaves, were held by the said Verminet, in right of his wife these are his words. Buying, then, with full knowledge, that Verminet had only a partial, qualified interest in the property, and this in right of his *wife, he is chargeable with notice of that right, and bought subject to' it, whatever it might be. It is hardly possible to believe, that he did not inform himself of the actual state of the property : that were a course which no man of common sense would pursue in such a purchase. The conclusion is proper and necessary, that he did know the true state of Verminet’s interest. And on this ground, the law implies notice, and charges him with all the consequences. Can the statute apply to protect such a purchaser, and enable him to bar the very right ■ under which and subject to which he bought ? Can this be called adversary possession ? Does not the trust, which attached to the slaves the moment they were selected by the testator, follow them ? None will deny that it did, while Verminet held ; and can a purchaser from him with notice, occupy higher ground ? Nor is this one of those constructive trusts, to which the statute of limitations is applied: there, the party takes possession in his own right and as owner, and is afterwards turned into a trustee,. by matter of evidence and construction merely ; here, Rankin took possession in subordination to Mrs. Verminet’s right, and is as much bound by the trust, and as incapable of protection by<«the statute, as trustees the most directly and formally appointed.

The removal of the slaves also to a distant part *of:*the state, and the sale of some of them to persons residing at a still greater distance, rendered it difficult, to a woman and children especially, to discover the place of their abode, so as to sue for them sooner ; and thus the case of the appellees is brought within the saving of • the 14th section of the statute of' limitations.

The chancellor has dismissed the bill as to the purchasers from Rankin, and directed an account to be taken of the values of the slaves sold to them, and of their hires and profits ; intending, no doubt, to decree the full amount of their values and profits, at the final hearing. We think, that so much of this order, as directs the account to be taken of the profits of the slaves sold, after the sale of them to the ^purchasers, is wrong ; the true mode being to decree the amount for which the property was sold, and interest thereon, from the date of the sale, and profits only before the sales were made. The decree *67must be corrected in this particular ; but the appellant must pay the costs, the appellees being the parties substantially prevailing.

The court gives no opinion on the point which the chancellor reserved for future consideration.

The other judges concurred. The decree was corrected in the particular mentioned by judge Carr, and as to all things else affirmed.