#### *Doe on the demise of*JOHN R. TAYLOR v. JOSEPH H. GOOCH.

Where there is a trust, created by the agreement of parties, the possession of the *cestui que trust*is not adverse to that of the trustee, and cannot, no-matter how long it has been continued, divest the title of the trustee.

One who purchased a trust-estate, under execution, before the Act of 1812, • only got the possession of the defendant in the execution, and the equitable right to be substituted to the rights of the creditor, whose debt he had paid.

ActioN of ejectmeNt, tried before Manly, Judge,, at the Spring Term, 1857, of Warren Superior Court.

The plaintiff showed an occupation of more than thirty years, and then put in evidence a deed from Lewis, and Henry Potter, to Solomon Walker, dated 17th of August, 1790, and also the will of Solomon Walker, proved at the September term, 1791, of the county court, devising the land to his son, John Walker, and showed possession by Solomon and John Walker, under their respective titles, for more than seven years, claiming the land as their own. He also proved, that John Walker, who married in 1796, left four children, of whom Elizabeth was the eldest. She intermarried with Hezekiah Hobgood, on the 26th of January, 1817, and died leaving three children, of whom Mary, the female lessor of the plaintiff, was one. She intermarried with John R. Taylor, on 7th of January, 1842. Plaintiff put in proof John Washington’s appointment as guardian of Elizaheth Hob-good in 1815.

The proofs, on the part of the defendant, were, possession of the land by William Pannill from 1803 to 1806, when it was sold, under a judgment and execution, to John Washington, *437aiid possession by the said Washington until his death in 1826, a devise of the said land from Washington to his wife, and a possession by her until she sold it to the defendant; and that these several parties, -during the periods covered as aforesaid by their titles, had possession of the premises, claiming them as their o^ti property.

Hezekiah Hobgood, after the death of his wife in 1843, left the State, and had not been heard of since.

Upon the trial the case turned upon the questions of fact, whether Mary Hobgood, now Mary Taylor, was of full age when she married on 7th of January, 1842, and if so, whether her right of entry was such as to cause the bar of the statute of limitations to operate against her. The plaintiff’s counsel contending that, according to the proofs, she was under age at her marriage.

2nd. It was contended for the plaintiff that, as Washington was guardian of Elizabeth Hobgood, the law would *construe*his. possession (whatever may have been his intention and purpose) as a holding in behalf of, and for the benefit of his ward.

On the 23rd of May, 1802, William Pannill and John Walker entered into a written obligation, under seal, in which it was recited that the said John Walker had sold the land, -in question, to Wm. Pannill, for a certain price, reserving possession till the 25th of Dec., 1803, and it was agreed that Pannill was to deliver in payment a bond which he held on Walker, likewise á bond on Thomas Potter, and another bond ■on Kobert Potter, and was to pay the remainder of the price .as soon as a good and lawful deed was made to the said Pan-nill, and possession surrendered to him.

Wm. Pannill filed a bill in Equity, in the district of which -Granville-county was a part, against the heirs-at-law of John Walker, who was then dead- — setting forth this obligation— .alleging the delivery of the bonds, and praying a conveyance ■on the payment of the remainder of the purchase-money, according to the terms of the written contract between them.

The bill was answered by the heirs-at-law, through their *438guardian, *ad btem,*and subsequently, by Thomas Potter, the administrator of John "W alter, and from the answer of the latter, it appearing that all the purchase-money had been paid, and the allegations of the bill being admitted by the other defendants, a decree was made in the said Court of Equity, ordering the said heirs-at-law, as they mifht come of age, to make title to the premises to the said ¥m. Pannill, in fee simple.

The introduction of this record of the Court of Equity was objected to as immaterial, but was admitted by the Court, for the purpose of showing the nature of Pannill’s and "Washington’s possession. To this the plaintiff excepted.

The Court left it to the jury to'say, 1st, whether Mary Taylor was of full age when she intermarried with the male lessor of the plaintiff; and 2ndly, whether during the whole period of the coverture between Hezekiah and Elizabeth Hobgood, there had been an adverse possession in "Washington and wife, under color of title ?

And he instructed them, if there had been an adverse possession of the land, 'under color of title, at the intermarriage of Hezekiah and Elizabeth Hobgood and since, the husband would acquire no right, by the curtesy, after his wife’s death, and, therefore, in that case, if Mary Taylor was of age at the time of the intermarriage, she would be barred by the statute of limitations; otherwise, the jury were instructed to find for the plaintiff. Plaintiff excepted to these instructions.

Yerdict for the defendant. Judgment and appeal by the plaintiff.

*Wmston, Sen.,*for the plaintiff.

*B. F. Moore*and *Jenl&ins, {Att. Gm’l.)*for defendant.

Pearson, J.

The effect of the contract of sale by Walker to Pannill, was to make "Walker a trustee to secure the purchase-money, and then in trust for Pannill. By the death of "Walker, the legal title descended upon his heirs-at-law, upon the same trusts. By the payment of the purchase-money to *439the administrator of Walker, the first trust was discharged, and the heirs held the legal title simply in trust for Pannill, all wich is declared in the decree, which, with the pleadings, makes a part of the case. By it.the heirs are directed to make title to Pannill upon their arrival at full age, unless cause be shown against it, *&g.*The heirs have never made a conveyance, and the question is whether Pannill,. or those claiming to stand in his place, have, in any way, devested the title out of them ? The relation between the heirs of Walker and Pan-nill was that of trustee and *eest/wi que*trust, by *agreement of the parties.*So, Pannill’s possession, for no length of time, could devest the title of *Ms*trustee, for the simple reason that it could not be adverse. This is settled in *Taylor*v. *Dawson,*3 Jones’ Eq. Rep. 86. Washington became the purchaser of Pannill’s interest in 1806, at execution sale, went into possession, and continued in possession until his death, in 1826. We will put out of the case the fact that, in 1815, Washington was appointed guardian of Elizabeth, one of the heirs, who afterwards married ITobgood, for if his becoming guardian does not prejudice his claim, it certainly does not aid him in an attempt to defeat his ward’s estate, and usurp her title.

Washington purchased before the act of 1812. The trust estate of Pannill was not then subject to be sold under execution, and the utmost right which he could set up under his purchase, was to have the possession of Pannill, which we admit he could have recovered in ejectment from Pannill, the defendant in the execution, and in equity he was entitled to be substituted to the rights of the creditor, whose debt he had paid, and thereby succeeded to the equity of Pannill to the extent of holding it as a security for the money which he had paid.' So we see that Washington’s interest was an emi-nation, or an equity growing out of the equity of Pannill, and as the latter could not, by any length of possession, devest the title of his trustee, of course Washington could not do so.

This disposes of the case, even if we make the supposition . that, after the death of Washington, the possession of -the de-*440visee and ber alienee were adverse. Eor as "Washington’s possession was not adverse, Hobgood, upon his marriage, and the birth of a child, and the death of his wife, became tenant by the curtesy of the legal estate, and her heir had no right of entry until his death. He was certainly alive in 1843. Mary Hobgood, now Mary Taylor, the less^’, married in 1842; she was, consequently, under coverture when her right of entry accrued, and is still so..

From the view we have taken of the case, it is unnecessary to decide an interesting question of evidence, which was presented on the trial.

Pes Curiam. Judgment reversed, and a *venire de novo.*