#### WILLIAM H. WHEELER *and wife against*WILLIAM PIPER.

Where a party is converted into a trustee on the ground of fraud, the statute of limitations will run against the claim of the *cestui que trust.*

Where a father took advantage of the dependent condition of his daughter, the day after her coming of age, to obtain a conveyance from her of a slave, although the Court would probably disallow the benefit of the statute of limitations while that dependent condition continued, yet upon the termination of that condition by her getting married, if three years elapsed before she and her husband brought suit, there is no ground for the Court’s preventing the statute from taking its course.

A plea in abatement is not required to be supported by an answer, except where the bill, by way of charge and in anticipation of the matter relied on in the plea, alleges some new matter to avoid its effect

*250Cause transmitted from the Court of Equity of Wake county.

Nathaniel Harries, of the county of Orange, on the —— day of September, 1834, by a deed of gift, properly executed, gave to his grand-daughter, Sarah D. Piper, since intermarried with the plaintiff William H. Wheeler, a negro slave, described as being in the possession of the defendant, the father of tjm said Sarah I). She was an infant when this slave was given to her, residing with her father in the county of Wake, where she continued to reside until she intermarried with the plaintiff Wheeler, in October, 1853. Sarah D. Piper became of age on 6th day of February, 1853, and on 7th of the same month she executed a deed, conveying the said slave to the defendant, in absolute property, which was duly proved and registered. This bill was filed on 9th of February, 1857.

The bill alleges that the defendant fraudulently availed himself of his daughter’s dependent condition, and his parental authority, to obtain from her, against her will, on the day after her arrival at full age, the deed conveying the slave in question; that he exacted from her a solemn promise, at the time of making this deed, not to disclose its existence to any one ; which promise, she strictly kept until the knowledge of it reached her husband from other sources. The plaintiff Wheeler states, that in the fall of 1856, he first learned from the defendant that he claimed the slave and her children, she having had two since the conveyance; that he then enquired into the nature of the defendant’s title and claim to the slaves, but he refused to disclose it, stating in reply to his interrogatories, concerning-the matter, that it was none of his business, as the slaves belonged to him.

The defendant, without answering, pleaded the statute of limitations in bar of the plaintiffs’ right of recovery.

The plea was set for argument, and the cause transmitted by consent to the Supreme Court.

*Miller*and *.JPMltips,*for plaintiffs.

Moore, for defendant.

*251PeaRsoN, J.

The relation of the parties, and the dependent condition of the feme plaintiff at the time she executed the deed to her father, gives her a right, upon well-settled principles of equity, to have the defendant converted into a trustee. But the deed passed the title, and Equity does not proceed upon the idea that it is void, but that the party procuring its execution, on the ground of fraud, either actual or constructive, shall be converted into a trustee. So this is a trust *against the agreement*of the parties, and he may avail himself of the statute of limitations. *Taylor*v. Dawson, ante, 86. ¥e are inclined to the opinion, that, as the same relation continued, and the feme plaintiff was dependent on her father up to the time of her marriage, on the same principle by which the defendant is converted into a trustee, Equity would restrain him, or rather,-not allow him the benefit of the statute of limitations during that time. Bat the marriage took place in October, 1853, and the bill is filed in February, 1857, more than three years.

Upon her marriage, the feme plaintiff was no longer dependent on the defendant. It then - became her duty to put her husband in possession of all the facts, and if, by failing to do so, she has lost her right, it is her own fault. It is true, she says, her father exacted from her a solemn promise not to tell any one of the execution of the deed. This cannot excuse her in the eye of the law. It ought to have had the effect of exciting her vigilance, so that as soon as she was free from his control and had another protector, her rights could have been vindicated.

It is said, up to the time of the marriage, her dependent condition prevents the bar of the statute, and after that she was under the disability of coverture, so that there was an accumulation of disabilities. This case is plainly distinguishable. Before her''marriage, there was no *legal disability;*her right of action had accrued; and although a court of Equity will *not count*that time against her, yet it does not fall under the principle of accumulation, where one legal disability follows another. Equity may aid her by not allowing *252her right to be barred in consequence of supposed laches while she was dependent. That is as far as it can go. It cannot declare that her right of action had not accrued prior to her marriage, or prevent the statute from taking its course as soon as the ground upon which it was induced to interfere, to wit, her state of dependence, no longer existed. The plaintiff Wheeler alleges, that in the fall of 1856, (the time is not stated, so that it does not appear whether the three years had then expired or not) the defendant, in answer to questions concerning the slaves, told him “ it was none of his business, as the slave belonged to him.” He also alleges, that some year or so after his marriage, he was told of the conveyance from Ilarriss to his wife. This ought to have excited his vigilance. It is his misfortune not to have commenced his suit in time.

Upon the argument, exception was taken to the plea, because it is not supported by an answer. This is only required where the bill, by¿the way of charge, and in anticipation of the matter relied on in the plea, alleges some matter to avoid its effects. Here, in reference to the time after the marriage, to, which we confine ourselves, no such matter is alleged, and there'is nothing, giving to the plaintiffs the benefit of all their allegations, which avoids the force of the plea. *Eaton*v. Eaton, 8 Ire. Eq. Rep. 102.

The plea is allowed; but the plaintiffs may, if so, advised*file a replication, and go, to a hearing on the question of its truth. Adams’ Equity, 342.

Bek Cubiam,, Decree accordingly.