#### Falls & others*, v*. Torrance.

From Iredell.

*A*purchase by an administrator enures solely to the benefit of the next of kin, and the slave purchased remains in the hands of the administrator after the sale upon the same trust as before. One marrying an administratrix is trustee of the intestate’s property in the same manner as his wife was, especially if he have notice that it was the property of the intestate. The claim of the next of kin to distribution is not affected by the statute of limitations, being the case of a trust to which the statute has no application. In such case time is not a *bur,*but a circumstance from which a presumption may arise that the demand has been settled by payment or otherwise. A great lapse of time affords a strong presumption, but such presumption may.be repelled by facts explanatory of the delay.

And though the Court will not encourage claims brought forward after a great efflux of time, but will presume against them, yet where the delay is satisfactorily explained and the presumption of satisfaction sufficiently removed, the equity of the claimant remains unaffected and the Court will decree for him, notwithstanding the great lapse of time.

*413In regard to time, equity acts by analogy to statute law or to common law, and time has the same effect as at law in the analogous case.— Where the statute applies, *time*is a positive bar, may be pleaded, or is the ground of demurrer, and the right can only .be saved by the same exceptions as at law have that effect.

*It seems,*that equities of redemption and constructive trusts, are cases in which equity acts by analogy to the statute, and time should be a bar in itself according to the recent decisions in England. But when the rule as to time was adopted in this State, in such cases, equity was supposed to act in analogy to the common law Hence, the time adopted was twenty years, and hence also, it was considered as only affording a presumption of fact, and not as a positive bar. Though this notion was incorrect, and properly seven years is the period and should be a bar, in analogy to our statute of li.mitations, yet the notion has been so long adopted — is supported by such a train of decisions, and so much property depends upon it, that it is now too late to disturb it.

In cases of direct or pure trusts, time has no influence. The estate of the trustee is that which supports the trust, and without which it could not exist, and his possession operates for the benefit of the *cestui que trust.*The trustee cannot, by any act of his, make his estate and possession adverse to the *cestui que trust.*The trust owes its existence to agreement, and it requires the consent of the parties to destroy it. Therefore, if the trustee be guilty of wrongful conduct, he does not cease thereby to be a trustee, and of the same kind of trust as before such conduct — But it is at the election of the *cestui que trust*to consider the trust at arj end (if he please) and treat the trustee as a wrong doer.

This cause having been retained, on a former motion to dismiss *Cvide ante, Vol.*2, *p.*490) now came on to be heard, when it appeared to be a Bill filed in 1817, setting forth, that one *Gilbraith Falls*died intestate, in June, 1780, and that in 1781, administration on his estate was granted to his widow, who in 1784 intermarried with *Hugh Torrance*: that Complainants were the children of *Gilbraith*Falls, and at the time of his death were infants; that some of them, the daughters, married in infancy, and were yet married women j that among other property which belonged to their deceased father, was a nego woman *Flora,*who came into the possession of *Hugh Torrance*upon his intermarriage with *Mrs. Falls;*and that *Flora*had become the mother of several children : that *414
      *Torrance*and Ills wife never made any settlement of their accounts as administrator and administratrix of *Falls,*and in 1815 or 1816, they died, and letters of adminis-{rafi(m on the estate of *Hugh Torrance,*were granted to his son *James Torrance,*the Defendant, who by virtue thereof, took into his possession *Flora*and her children.

The Bill further stated, that fora number of years, Complainants were ignorant of the situation of their father’s estate, and further, that *Hugh Torrance*made repeated declarations that he did not intend to hold, nor did he claim *Flora*and her children as his property, but that they should be distributed among the children of *Gilbraith Falls,*whereby Complainants became less anxious to press for an immediate decision.

The prayer of the Bill was, *that James Torrance might*deliver up *Flora*and her children, and account for the value of their labour.

The Answer of the Defendant admitted, that *Hugh Torrance*died, as stated in the JBiJl, possessed of *Flora,*and also of her children *;*and stated that in November 1781, the personal estate of *Gilbraith Falls*was exposed to public sale,* that in the month of March, 1784, another sale was made by the administrator, at which, not only almost all the property sold at the sale of 1781 was again sold j but also sundry árticles which had come to the hands of the administrator since 1781 ; that this second sale was made on account of the depreciation of the currency of the country in the years 1781, 1782 and 1783 j that owing to the entire depreciation of the *continental money*before the year 1784, the value of the estate was greatly reduced, and *Hugh Torrance*applied to the purchasers at the first sale, (who were mostly the next of kin, or near relations of *Gilbraith*Falls) to surrender their purchases and permit the property to be again sold, and many of them did so. That as to the negro *Flora,*she was the child of *Binah,*who belonged to the estate of *G-Falls ;*that *Binah*was purshased at the sale in 1781 by Mrs. *Torrance,*then the widow of *G, Falls,*at the price *415of ¿270 hard money, which was a fair price, that *Flora*was born *after*this purchase of *Binah,*but whether before or after the sale in 1784, Defendant was ignorant$ that *Binah*was sold at the second sale in 1784, and purchased by *Hugh Torrance,*and *Flora,*if then born, must have been an infant, and was probably sold with her mother *;*and Defendants insisted, that if *Flora*was bom before the second sale, she was born the property of *Hugh Torrance,*inasmuch as her mother *Binah,*belonged to him under the purchase of the widow at the first sale, and his subsequent intermarriage with her j and that *Hugh Torrance*was not bound in Law or Equity to expose *Flora*to sale for the benefit of the estate of *G. Falls.*

Defendants also stated that a settlement of the accounts of the estatte of *G. Falls*had taken place, and Complainants had given receipts for their distributive shares more than 18 years ago, and some as far back as 1785 ; and insisted that as the Bill charged no fraud, and pointed out no specific errors, Complainants ought not, after this lapse of time, to open the account, and they prayed all the benefit which Equity would give from lapse of time.

As to the coverture of some of the Complainants, Defendants insisted it was true of a few only, and their husbands were competent to take care of their rights, and had every opportunity of learning the situation of the girl *Flora*: and as to declarations made by *Hugh Torrance,*that he held *Mora*and her children in trust for Complainants, Defendants answered, that they did not admit, nor had they reason to believe such to be the fact, but rather the contrary.

*Seawell*& *Badger,*for Complainants,

*Gaston,*for Defendants.

*For Defendants.*— Hugh *Torrance,*from whose administrator these negroes are demanded, was not the administrator of *Gilbraith Falls.*His wife was, but *her*representatives are not before the Court. This is not therefore a case in which the execution of a trust is de*416manded from an original, actual, express trustee, but one, in which a trust is to be raised by implication, a *,. ,*constructive trust to be established by reason or the cir-cums(ances under which possession was obtained. *Mrs. Torrance*held *Flora,*before marriage, as her own. Being originally a trustee, Plaintilfs bad a right to consi-ner *her*as always a trustee; and if this claim had been brought against *her*or *her*representatives, it might be regarded as liable to the rule, that *no*time operates as a bar *proprio jure,*(17" *Ves.*96 to 100.')

Nor is this a case in which it is admitted that the trust remains open, entirely unexecuted, but one in which an execution of it has been made; but it is contended to have been erroneous, and is sought to be corrected. The Defendants swear, that the estate has been settled, and the time elapsed furnishes a perfect conviction of it. It is not therefore a case like *Byden*v. *Jones*(1 *Hawks*50S) of “ an open, unexecuted trust, in which it is not pretended that the price has ever been accounted for.”

If these Complainants once had a right to demand these negroes specifically, have they *now*this right as, against the representatives of *Hugh Torrance?*

There are four classes of cases in Equity on the subject of time.

1. A title may exist at law, and the effectual assertion of it there, be so obstructed, as to drive the claimant into. Equity. In such case, the assertion of the claim in Equity must be made within the time prescribed for bringing an action at law. The change of forum shall not *prejudice*the Defendant. Here the Court of Equity acts *in obedience*to the statute of limitations. (2 *Scho. 8y Lef.*630, 633).

2. A title may exist in Equity, where none exists at Law, and where relief in a different mode is given in Equity. In such case, if the equitable title be not asserted within the time within which a legal title, of the same nature, ought to be sued on, to prevent the bar created by the statute, the Court of Equity, acting *by*
      *417
      *analogy*to the statute, will not relieve, (1 Scho. *<§• Lef.*429 — 2 *Scho. f Lef.*636-7 — 17 *Yes-*97-8.)

3. Where there is no bar from the statute, either in Law or Equity, lapse of time alone, unexplained^ raises *■a presumption of satisfaction,*both in Law and Equit3': *e. g.*twenty years on a bond, raises presumption of payment *;*so on a legacy, *Jones*v. *TurberviUc,*(2 *Ves.,jun.*13) *Ibid-*280. As to the general grounds of such presumption, see 12 *Yes.*265-6, approved by the Supreme Court of U. S. in 6 *Wheat.*504, quoted 10 *Wheat.*177, 3 *Mk.*105.

4. But where there is no bar, and no presumption of payment, a Court of Equity sometimes refuses relief on grounds *oí public policy.*’2 *Scho. ¿j*Lef'.*630, 639 — 4 *Bro. Ch. Ga.*257 — 2 *Ves.jun.*90, 92-3-4, *Ibid.*584.

' The last three of these rules or classes, embrace the present case. The possession of *Mrs. Torrance*and her husband was notoriously adverse, and there was no *new*cause of action founded on any acknowledgment of his. The presumption of *satisfaction,*on the facts, is irresistible j some of the parties were present at the sale, no claim is made for thirty-six years, the accounts settled with auditors in 1793, and the property personal.

Again, it would be intolerable, after such acquiescence, to take from one family, and give to another, a *whole family*of slaves, raised from a child, *born*after the mother was bought, upon so vague an excuse for delay as is here offered. Who of Complainants were infants, when did disabilities cease, when were new ones created? These are matters, which if relied on as furnishing exemptions, should be *shewn*distinctly. Besides, by analogy to the law, exemption of *one*will not prevent a bar as against *all,*and certainly cannot relieve *all.*The Plaintiffs must bring themselves within the time, or some established exception, or shew some deliberate act reviving the old, or creating a new claim. *Gaston*then examined, and commented on the testimony offered to support the allegation of Plaintiffs, that *Torrance,*by his *418declarations lulled them into security, and insisted that ** was a course pregnant with danger, to rely on vague accounts given of what he had been heard to say, *“*that j)e jnfe,J{jet| ]eave the property” to the Complainants j “ that lie did not care about the property he obtained by his wife,” &c.

Tayeok, C. J. —

Upon reading the evidence in *this*case, the general conclusion I have reached is, that *Flora*and her descendants, were, after his death, part of the personal estate of *Gilbreath Falls,*and as such, subject to distribution amongst the next of kin, not having been otherwise disposed of by the administrators, in the regular exercise of their prescribed legal duties. It is not shewn at what period of time, *Flora*was born, whether before or after the first sale j but from her not being named in the first account of sales returned, from her apparent age at the second sale, from the reas on then assigned by the administratrix for not selling her, and from other circumstances appearing in the case, I feel warranted in the conclusion, that she was born between the two sales. But admitting that she was born before the first sale, and that Binah, her mother, and herself, were purchased by the widow, administratrix, that sale, as it respected *Flora,*was a nullity, and can enure only to the benefit of the distributees. Their right to the property was not divested by it.

The same consequence follows, if she was born after the first sale, and before the second. In either case, she should, have been disposed of with the rest of the personals, and the administratrix omitting to make such disposition, must, in Equity, be considered as retaining the possession under the original trust. When the second sale took place, it is admitted by the Answer, that *Hugh 'Torrance*was married to the widow, and that he assessed himself of *Flora,*who was then bound by the trust, of which *Torrance*had notice, as further appears in the Answer, for he applied to the purchasers at the first sale. *419to surrender their purchases for the purpose of a resale. He is therefore bound in Equity, with respect to *Flora*and her children, to the execution of the trust.

From this short view of the case, it results, that the Complainants are entitled to a decree, unless relief is barred by the lapse of time. It is true, that a Court of Equity is unwilling to countenance stale demands; and is averse to an interference in behalf of persons who have slept upon their rights, even in cases where there is no bar interposed by the statute of limitations. They will ip such cases, adopt the presumption founded on the efflux of time, that the controversy has been settled by payment, or otherwise. Time is, in such cases, a circumstance affording a strong *prima fade*presumption, but liable to be repelled by other circumstances, explanatory of the delay.

There has been in this case a very considerable lapse of time, which considered alone, would be much more than sufficient to bar many .claims to which no act of limitations applies, and which at first view forms a great objection to the relief sought. But I cannot but think, that the peculiar circumstances of the case, are of strength sufficient to destroy any presumption arising from the delay, and to enable the Court to do justice, without infringing any of its rules, or holding out encouragement to the spirit of wanton and dormant litigation. The property remains the same,- with only the addition of an increase from the parent stock; it is completely identified, and has undergone no other change of possession than that from *Hugh Torrance*to his administrator. The state of the property seems to have been known to some of the witnesses, and most probably to the neighbourhood, so that no purchaser will be vexed by a disputed title. The Complainants could only assert their right by a legal, controversy with the man who had married their mother, and who, it may be reasonably inferred, from the character given of him by the witnesses, bad treated them with parental affection. But if these ties were too feeble to restrain them, those of interest may be deemed sufficient., *420for jie }iac] eaicl in repeated conversations with the witnesses, that the property he acquired by his marriage should devolve upon the children of *Gilbraith Falls,*who ¡)a{| made it j and it is not at all probable that those Children were ignorant of such declarations. Under the influence of these combined motives^ the distributees may be supposed to have abstained from the assertion of their rights, without taking' into view the legal disabilities under which some of them continued. Against these circumstances, I cannot presume that their demands have been settled, or that they have unreasonably slept upon their rights ; but am of opinion that the equity of the case is in their favour.

Henderson,' Judge. —

As regards time, Equity acts either in analogy to the statute law or common law, when to the former, the statute of limitations is introduced with all its rigors, time is a positive bar, it may be pleaded, it is cause for demurrer, nothing prevents its operation, but what will have the same effect at law *$*when it begins to run it continues so, notwithstanding supervenient disabilities, if all the Complainants are not within its saving, all are without them.

Where it acts in analogy to the common law, time is «o bar of itself, but it furnishes evidence of a fact which is a bar, payment or satisfaction, or possibly abandonment ,* the lapse of time itself, is hot therefore pleaded as a bar, but the fact which may be inferred from it is, but it is an inference of fact, not of law, as under the statute,* it is offered as evidence, and like all other evidence, may be *rebutted;*there is something like an exception, when the lapse of twenty years, without other circumstance is relied on, from this alone, a presumption of payment is inferred $ it is one of those cases mentioned by *Lord Erskine,*the mind forms no belief about it for want of data, yet it is an inference of fact, and the belief if it deserves that name, may be repelled by evidence, either dehors or intrinsic, and a bill in such case, *421cannot be demurred to, for want of stating those circumstances by which it is repelled, for they are matters of . • evidence only, and the Bill should contain the facts and not the evidence, the first class of cases embraces those suits in Equity where the matter of them may also be the subject of one of those actions at law, enumerated iu the statute, and in England at this day also, all suits in Equity, where the subject of them is *analogous*to the subject matter of any of such actions. An instance of cases of the first kind, is a Bill for an account for the same thing, as would support an action of account at law, six years is a bar in such case, and may be pleaded as such; an equity of redemption, or an implied or rather a constructive trust, is an instance of the second kind, twenty years adverse possession in such cases is a statute bar, and may be pleaded as such. The equity of redemption and the constructive trusts, being analogous to legal estates, an entry into w'hich is barred by an adverse possession for twenty years, a Bill to redeem, after twenty years, such possession, without stating on its face that which would take the case out of the statute at law, is bad on demurrer; so all the late cases on the subject, and particularly the cases of *Beckford et al.*v. *Wade,*17 *Ves.*98, and *Walpole’s heirs*v. *Clinton.*When we adopted our rule as to time, as regards equities of redemption and construction trusts, indeed as to all cases except in such where the subject of the bill might also be the subject of one of those actions enumerated in the act, the rule was understood to be framed in analogy to the common law; it was thought both here and there, that the statute had nothing to do with it, time was therefore considered as a mere matter of evidence, a presumption of fact; it therefore did not vary with the change of time by the statute, from twenty to seven years, as it would have done if it had been thought to have been formed in analogy to the statute in England — it was easy to make the change in the decisions, for the time remained the same, to-wit, twenty years. We have adopted the com*422mon law rule throughout. Twenty years of itself forms a presumption of payment, or satisfaclion, as it docs at law; but is here, as there, a mere inference of fact— £jme ¡g t[ie evidence, and the inference may be repelled here, as it is there. It cannot, I think, be denied, but that, upon principle, the late English decisions are right, and of course, that ours are wrong; but after an uniform train of decisions for more than a century, the principle has something like legislative sanction, we cannot make a change, too much property depends on it. We must therefore declare the rule to be, that less than twenty years will not bar an equity of redemption, or an implied trust; and that should a longer period elapse, it is but matter of evidence, and that the presumption arising, from it may be repelled ; but that twenty years of itself, without proofs either way, dehors or intrinsic, raises a presumption of payment, abandonment or satisfaction, imperative on Courts and Juries, as to equities of redemption of personal property, and implied trusts relating to the same, particularly as to slaves. I believe, hut I am not positive, that the same rule has always prevailed. We can get nothing on the subject from English decisions, personal property not being the subject of mortgage. It is there called *pledging,*in regard to which they have very different rules from those applied to mortgages. Pure trusts are not subject to the operation of *time;*for the possession of the trustee, is the possession of the *cestui que trust.*It is that which supports and fortifies his estate, and which, in fact, cannot exist without it. An analogy to the law time forms no bar; for the cause of action does not accrue, unless (he trustee thinks proper to consider that it lias — for it is not in the power of such a trustee to put off his character at pleasure. It was by agreement that it was created, and it requires the consent of both parties to put an end to it; but the *cestui que trust*may, if he thinks proper, consider the trust as at an end upon any misconduct of the trustee ; but the trustee cannot, by his act or declaration, shake off his character. *4231 am therefore disposed to doubt the correctness of some late opinions, that in such cases time begins to run from the time the trustee disavows his character, and that is made known to the *cestui que*trust, for I am persuaded, that he can no more, by his own act, put off his character, than a tenant can, during his time, put off his, and convert his occupation into an adverse possession. During the period allowed by law for the settlement of the estate, the administrator may be considered as holding the property on an express trust, and afterwards, perhaps, as to negro property, it would be doiug him no injustice, to view him in the same character; for, by law, he cannot purchase them himself, nor can they be rightfully sold by him, but by an order of the Court, and then only for the payment of debts, where the perishable property is insufficient for that purpose, or for the purpose of making division among those entitled. But this case does not require that this question should be decided ; for the case is, I think, against him, upon the ground of his standing as a trustee by implication or construction, a situation more favourable for him.

It appears that at the second sale, for I pay no regard to the first, as far as purchases were made by the admin-istratrix, that the girl *Flora*was not sold, she being claimed by *Mrs. Torrance,*upon some frivolous ground— that afterwards, when the settlement or statement was made by the commissioners *Huggins*and *Davidson,*(upon which settlement, *Torrance’s*distribution among each of the distributees, was madeandatdifferentperiods of time) she was not brought into account, and had she been sold for the payment of debts, it is to be presumed it would have been then alleged by him, for the statement was made long after the death of *Falls,*and his marriage with the widow; all these facts shew very clearly, I think, that she remains yet to be accounted for. It is a case where the next of kin do not barely show that he was once liable, and call on him to account, in which case, lapse of time would of itself, afford presumption of satis*424faction, but by these proofs, render it next to impossible that he should have accounted. I lay no great stress upon *Torrance’s*declarations, that *Falls’*children should enjoy the fruits of their father’s labours, further than to rebut the idea of abandoriment, for it grew out of some conversation in the family, relative to the claim (I presume) for those negroes, for it does not appear that they claimed any thing more; but it weighs nothing with me, as to *Torrance’s*recognition of their right; for I think it was nothing more than a mere gratuitous promise which the law does not recognize, but refers the obligation entirely to the will of the person who made it. An account therefore will be taken of the hire of the negroes and the expence of raising them, allowing all monies or other things expended for their support. The account may be taken by any one the parties may agree on to do it, otherwise by the Master of this Court.