#### Harriet Freeman *et al. v.*Willie Perry *et al.*

Where the property of a female was conveyed to trustees upon trust to permit her intended husband to receive thc-profits during Ms life, and then in trust for the wife and the issue of. the marriage; a purchaser of a slave, part of the trust estate, under an execution against the husband, with notice of the articles, who held possession adversely to the trustees, more than three years during the life of the husband, and who, to a bill filed by the wife and children within three years after his death, pleaded the statute-of limitations, was held—

By Daxiel, J. to be a trustee for the plaintiffs, although he acquired no-tMng by the salé, as the plaintiffs were not guilty of any laches, and had a specific right to the slave.

By Hendeusos-, O. J. to stand in the place of the husband, and being a privy in estate to be affected with the trust declared in the settlement.

Upon the marriage of the plaintiff *Harriet*with *William, D. Freeman,*he entered into articles, whereby he agreed to convey to *Jones Cooke*and *Marmaduke Jef-freys,*defendants, all her property in trust that they should “ suffer and permit the said *W. D. F.*to have the *“*use and enjoy the profits accruing from said property, *4i*during his natural life, and upon the death of the said *“ W. D. F.*that the aforesaid property shall be, and *“*enure to the use and benefit of the plaintiff and her child *“*or children and their heirs- forever, as tenants in com- “ mon,” with remainders over, in default of issue. By a deed of the same date with the articles, to which the plaintiff *Harriet,*then an infant, and her intended husband, *TV. D. F.*were parties, all her estate was conveyed to the defendants *Cooke*and *Jeffreys,*in trust to permit *“*the said *W. D. F.*to have, use and enjoy all and sin- *244
      *“*guiar, the profits arising from the said land and ne- *“*groes hereby conveyed, during his natural life, and “ upon his death, that the same shall be, and enure to « the benefit of the said *Harriet,*and such child or chil- “ dren of the body of the said *Harriet,*as may be then *“*alive, and their heirs forever, as tenants in common,” with remainders over, as in the articles. The marriage took place, and the other plaintiffs are the issue of it. The settled property went into the possession of the husband, who shortly thereafter became insolvent, and executions issued against him, under which several of the negroes conveyed in the marriage settlement to the defendants *Cooke*and *Jeffreys,*were purchased by the defendant *Perry,*he having, at the time of his purchase, express notice of the articles, which were read by the trustees, and they upon his purchase, demanded the slaves of him. *W. D. Freeman*died more than three years after the possession of the defendant *Perry*commenced, leaving the plaintiffs, his wife and children, surviving him. This bill was filed within less than three years after the death of *Freeman,*the plaintiff Harriet, having been under age at the lime of her marriage, and the other plaintiffs being at the commencement of this suit, infants of tender years.

The bill sought to have the negroes conyeyed to the plaintiffs, and an account of their hires, and in case of failure therein, to subject the defendants *Cooke*and *Jef-freys,*for a breach of trust.

The defendant *Perry,*relied upon the act of limitations and the act of 1820, *(Rev. c. 1055,) to*quiet the title of persons in possession of slaves; and it was agreed, that the questions made upon his answer, should be determined before any others were *discussed.*

*W. II. Haywood,*for the plaintiffs.

*JDeverenx*and *Winston,*for the trustees,

contended, 1st. That the plaintiffs were in this court protected by reason of their several disabilities, and if the defendant *Perry,*had acquired a title which would bar the action #f the trustees, he was, by the rules of this court, cop-*245verted into a trustee for the plaintiffs ; and they cited *Bond*v. *Hopkins,*(l *S.*& *L.*429.) *Kane*v. *Bloodgood, (7 John. C. It.*121.) *Mien*v. *Super,*(2 *Vern.*368,)

*Per*Dah-iee, J. sale of trust es. b^pj“cu‘ where the trust ItdmHs^o-fx-tensive with the Sethe trustee holds for the le-ívüli^emainder6 toothers.

2d. That the purchase by the defendant *Perry,*under the execution against *Freeman,*made the former a privy in estate because of the act of 1812, *(Rev. c.*830,) authorizing the sale of equitable interest in real and personal estate.

*Gasion*and *Badger,*for the defendant *Perry,*

argued, 1st. That wherever the legal estate of the trustee was gone, the equitable interest of the *cestui que trust*being dependent upon it, failed also; and for this, they cited *Wychev. East India Co.*(3 *P. IF.*309.) *Cholmondeley*v. *Clinton,*(2 *J.*& *W.*1.)

2d. That the interest of *Freeman*was not one which was within the act of 1812. *(Bogertv. Percy, 17 John. R.*351.)

Daniee Judge,

after stating the facts, proceeded: Such a trust as *Freeman*had in the property was not subject to be sold under an execution, by virtue of the act of 1812. That act operates, as a legislative conveyance of the legal estate to him who purchases the use ; for it declares that the purchaser shall hold and enjoy the property by force and virtue of the execution, freed and discharged from the legal title of the trustee ; Who was before the sale possessed in trust, for the defendant in the execution, The legislature meant to subject those trusts to sale under execution, of which the *cestui que trust*might, in a court of equity, have enforced a conveyance of the legal estate from the trustee to himself. The act embraces only such trust estates as are co-exteusive with the legal estate held' by the trustee; so that the legislative divestment of the legal estate, from the trustee, should not operate to the injury of third persons, or any ulterior remainders in trust.

If *Freeman’s*life interest, in these slaves, could have been sold by execution, under the act of 1812; the legal estate would have been, by operation of the sale, and the conveyance of the sheriff, transferred, from the trus*246tees to the purchaser. There would have been left no legal estate in the trustees, to have upheld and fed the uses and trusts., contained in the ulterior limitations and remainders mentioned in the deed of settlement. These equitable remainders must have all been destroyed, for the want of a legal estate in fee, in the trustees, to have fed and supported them. The legislature did not mean that the act should work such an extensive mischief; it meant that it should operate upon plain express trusts, which trusts were co-extensive with the legal estate in the trustee. It never intended that an execution should interfere with complex trusts, or where there was a series of successive trusts, arising in a deed or will, all fed from the same legal estate. The sale of the slaves made by the sheriff' was void; *Freeman’s*trust estate, being only a life estate. There were by the deed of settlement, ulterior limitations of trusts, fed by the legal estate in the trustees ; therefore the execution did not reach any of the trusts, notwithstanding, the trustees, the sheriff and *Ferry,*all believed that the trust interest of *Freeman*was by law, subject to be sold ; and under that belief the sheriff did sell, and *Perry*with full notice of the plaintiff's title under the settlement, purchased the slaves at the sale, and took a conveyance of them from the sheriff. The trustees forbid the sale and demanded the slaves of the defendant; and he refused to deliver them, but they never brought any action at law to effect a recovery. The trustees were barred by the act of limitations, and had they brought an action of detinue for the slaves, against *Ferry,*after three years from the time of his purchase, they would have failed in it. The defendant *Ferry,*now contends that the plaintiffs have a remedy against the trustees for breach of trust in neglecting to sue him, and recovering the slaves, before bis estate in the same, was rqmned into a good title by the act of limitations.

I grant that the trustess are liable to the plaintiff, but have they not a right to elect to consider *Perry*as being a trustee for them under the circumstances of the case, and follow the property in his hands? The plaintiff *247
      *Harriet*was a *feme covert,*until a less time than three years before the filing of this bill; ami the other plaintiffs are infants. Suppose the trustees were insolvent, must the loss fall on the plaintiffs, and *Perry*be permitted to hold the property, although he had express notice of the contents of the deed of settlement? If the trustees had have made a conveyance to *Perry*of the slaves, with notice to him of the trusts, a court of equity would have held him a trustee to perform all the trusts in the deed. Will the manner in which ho has obtained the possession of the slaves destroy the plaintiff’s rights, although the legal title of the trustees is destroyed by the acts of 1715 aiid 1820, and by operations of tiie same, their legal tiie is transferred to him? The sheriff sold the interest which *Freeman*had in the *slaves;*and although it was not subject to execution, yet the sheriff intended to pass that estate by the sale, and *Perry*intended to take the same, not by the way of a trespass or *tort,*but by a contract of purchase, having full notice at the time of the trusts.

I admit that a disseisor, abator, or intruder, or any person, who holds the estate in the *post,*although they have notice of a trust arising out of the estate, will not he considered by a court of equity as trustees. It is said by the counsel for *Perry,*that their client holds these slaves neither by privity of estate, privity of contract or by fraud. Furthermore, that the trustees, *Cooke*and *Jeffreys,*are barred of their legal title by the act of limitation, and that the defendant is answerable for tiie slaves neither at law to them, nor in equity to the plaintiffs. The sheriff when he levied on the slaves, did not intend to commit a *tort.*He levied under the belief, that the equitable estate of *Freeman*could be sold by virtue of the act of 1812. *Perry*purchased .under the same belief, and that the sale would by operation of law, transfer to him both the legal and equitable estate during tiie life of *Freeman.*Shall *Perry*be now heard to say that there is no privity between him and tiie original trustees? That this court cannot, consistently with its own rules, declare him a trustee, although he had notice of the ill to-*248rior trust of the settlement? I think he cannot be permitted to set up such a defence, and although the origi-£t,as£ecs are barred by the act of limitation, and can-MOt regain the legal estate, yet in consideration of the manner in which *Perry*obtained the slaves, viz: by contract, he must be declared and considered by this court to hold them as a trustee for the plaintiffs. The rents and profits of the estate were liable in equity to the *creditors*of *Freeman;*he might have rented the land and hired the slaves, and received the money himself, or paid his debts with it. An assignment by Freeman, during his life, to raise money to pay his creditors, would have been protected in equity, particularly where the assignee had seen to the application of the purchase-money. The purchase-money in the present case, was applied to the debts of *Freeman,*and I think that this court, under such an equity, set up by *Ferry,*would have stopped the trustees in prosecuting a suit at law against him for the recovery of the slaves. But the court would have first seen that the *fund*was safe and subject *to be*Surrendered to the trustees on the death of Freeman.— (*Townsend*v. *Windham,*2 *Ves. at p.*10. *Codagan*v. *Kennet, Cowp. 432. Fearne on*Remainders, 408, 9, 10. *13th American edition.')*We cannot permit *Perry*to protect himself from the trust, of which he had notice, by hearing him now assert that either the sheriff, when he levied was a *tort feasor,*or that he himself committed a *tort*when he took the slaves *home;*and that now he is beyond *the*reach of this court. It may be *stated*as a rule in equity, that all persons coming into possession of trust property, with notice of the trust, shall be considered as trustees, and bound with respect to that special property, for the execution of the trust. *(Daniels*v. *Davidson, 16 Ves.*249. *Adair v. Shaw,*1 *S.*& *L.*262. 2 *Mad. c.*125.) I think that *Perry*should be considered as a trustee of the slayes mentioned in the bill, for the plaintiffs, and that he be decreed to deliver them and their issue to either of tiie parties, and account for their hires.

*249HENDERSON, Chief-Jus tice.

It is-not true that a new estate in the thing sold, is acquired by the purchaser under a *fieri fiadas ;*he succeeds to the interest or estate of the defendant, and to no other ; nor is the case different, where the defendant has made a fraudulent deed to another, *quoad*the creditor it is the debtors estate. *Perry*by the purchase acquired *Freeman’s*estate and no more, and he cannot now object that *Freeman’s*interest could not be sold under a *fi. fia.;*he is concluded from ailedging it; therefore, the claim of *Perry*in opposition to the trustees is a nulity, if *Freeman*could not support it. It is like the case of a tenant for life conveying in *fee;*the vendee notwithstanding his deed in fee, and his claim in fee, is still tenant for life, and the reversioner may draw upon him as his tenant, and compel him to perform the obligations of tenant for life, and although, if the conveyance be by fine or feofment, the reversioner may consider it as a forfeiture, and enter upon the cognizee or feofee, yet he may waive the forfeiture and demand the reserved services of the cog-nizee or feofee. Their confidential relations connot be assumed and put off, at pleasure. The joint act of the parties and the law created them, and they can be put an end to, only in the same way. The purchaser as to strangers succeeds to the estate of his vendor, their declarations to the contrary notwithstanding. If an action were now brought against *Perry*for refusing to deliver up the negroes at. the time of the sale, the statute of limitations would bar that action, for plainly it arose at the time of the refusal; but if the. trustees chose to waive it, and consider *Perry*as in *Freeman’s*place, and wait with him as long as they could wait with Freeman, that is during life, and then do as is now done by the *ces-tui que trust, (_Freeman*being dead,) call upon *Perry to*surrender the slaves, the statute is no bar, for there has been no adverse possession. The fact is, that by *Freeman’s*death there was no interest or estate in *Perry*to protect. Had lie taken the negroes tortiously, he would have acquired a tortious estate; but having acquired a limited *250one, that is during *Freeman’s*life and the pleasure of the trustess, it expired by *Freeman’s*death.

There is some* difficulty as to the jurisdiction, for the trustees have the legal estate, and should have sued *Ferry*immediately on *Freeman’s*death, but as they will not, or have not done so, and *Perry*as long as he holds is *quasi*trustee, I think this bill may on these grounds be sustained.

Per Curiam.' — Direct an account.