#### W. C. Smith and others *vs.*B. F. Hunt, Executor of B. F. Hunt, and others.

*Trusts and Trustees*— Implied *Trust*— Lapse *of*Time— *Common Fund.*

H. being attorney on record in a judgment, of which he owned one-half, purchased, at sheriff’s sale, a tract of land, sold under the execution on the judgment, and without paying the purchase money, received from the sheriff a deed of conveyance for the *land:*— Held, that H. must be presumed to have purchased as trustee, and that he held the land as equitable tenant in common with the other owners of the judgment.

Lapse of time, more than twenty years, *held,*under the circumstances, not to rebut the presumption that H. had purchased as trustee.

The land having been sold by the master and the proceeds being in Court, *held,*that the other owners of the judgment, who had another demand against H., growing out of a similar transaction, had the right, as against other creditors of H., to look to the proceeds of the sale as a common fund for payment of both of their demands.

BEFORE DARGAN, OH., AT CHARLESTON, FEBRUARY, 1858.

This case came before the Court on exceptions to the master’s report.' The report is as follows :

Under a special order made by Chancellor Dargan in this cause, at the last term of the Court, I am directed to examine and “ report as to whether the complainants are entitled to any portion of the Crow Island, or the proceeds of sale, either as equitable part owners, creditors or otherwise, and if so, to what amount, and that I make a special report of the same, with leave to report any special matter relating thereto.”

In pursuance of this order,I have investigated the matters thereby submitted to me, and proceed to submit the conclusions at which I have arrived.

The land in question must formerly have been the property of Nathan Huggins, a resident of Georgetown district. *270It appears to have been levied upon as his property by the sheriff of that district, under an execution issued upon a judgment in a suit instituted in the name of William S. Smith and Peter Cuttino, as administrators of George Smith, surviving copartners of George and Savage Smith, against C. Huggins, executor of Nathan Huggins.

It was by a deed bearing date the second day of December, 1833, conveyed by John Harrelson, sheriff of Georgetown district, to Benjamin Faneul Hunt, for the sum of $3,200, as stated in the deed. The sheriff’s conveyance recites as the authority for the sale, a *“ Fieri Facias,*issued out of the Court of Common Pleas held for the District of Georgetown, tested the second day of February, in the year of our Lord one thousand eight hundred and thirty-two, at the suit of W. S. Smith and Peter Cuttino, administrators of George Smith, who survived Savage Smith and Cuttino, partners in trade, under the firm of Smith & Cuttino, commanding that of the goods and chattels, lands and tenements of Nathan Huggins in the hands of Charles Huggins, his executor, to levy the sum of three thousand and two hundred and sixty-five dollars debt and damages, and costs, &c.” This deed is filled up in the handwriting of Mr. Hunt, the purchaser, and contains in the printed form the usual acknowledgment of the receipt of the purchase money, and is endorsed as recorded in the office of the Register of Mesne Conveyance, 3d December, 1833. It is also endorsed with the signature and seal of the purchaser in blank, witnessed by Thomas F. Purse. By a transcript from the record, it appears that the purchaser, Mr. Hunt, was the plaintiff’s attorney in the suit, under which the execution was issued.

The complainants first insist, that this purchase was made by Mr. Hunt for him and themselves, as the persons entitled to the joint copartnership estate; that no money was paid, but that it was to be held on joint account, and that therefore they are entitled to. one-half of the proceeds of the sale, *271recently made by me under the order ofthis Court, reserving the equities of the parties.

No testimony of any agreement or arrangement to that effect has been produced before me, but the relations of the parties, and the proceedings in the cause then pending in this Court, for the settlement of the mutual claims between Mr. Hunt and the heirs of Savage-Smith, are relied on to establish this. The purchase for joint benefit.is denied in the answer of B. F. Hunt, executor of his father, (who had made the purchase,) and he insists that the purchase was made for himself .exclusively, and whatever may be conjectured as to the probable intentions of the parties at the time, there is not, it seems to me, sufficient ground now to presume a distinct contract or agreement on the part of Mr. Hunt in the sense now contended for, and I am, therefore, not able to assent to such conclusion.

The complainants, however, insist in the alternative, if the former view should not be sustained, that as the purchase money was not paid, half of which th'ey would have been entitled to receive, they are clearly entitled to the same amount with interest from the time of the purchase, to be paid out of the proceeds of sale now in my hands, and after examining the matter, I have come to that conclusion.

In examining the claim made on this ground, as well as a further claim to be considered hereafter, it is necessary to advert somewhat to the proceedings prior to the conveyance by the sheriff.

Several years before this, C. T. Brown and wife had filed their bill in this Court against the administrators of the surviving copartner, George Smith, and the complainants, as the distributees of the deceased copartner, Savage Smith, praying a partition of the copartnership estate, and setting up besides large claims (on grounds not now necessary to be considered) against the copartnership estate. In this cause a partition of certain lands and negroes was made specifically between the distributees of the two copartners, and the debts and *272choses in action due to the copartnership, as appears by the receipt of the commissioner, Mr. Heriot, dated February 7th, 1352, were taken out of the hands of the administrator, and transferred to the commissioner. In the list of debts thus transferred, my attention has been called to one from Nathan Huggins, which, it is affirmed, was the subject of the suit under which the sale was subsequently made. These debts were, by a report in the cause afterwards made by Mr. Heriot, recommended to be placed in the hands of an attorney for collection. After the partition in 1825, C. T. Brown and wife sold and assigned all their interest 'in the copartnership estate to Mr. Benjamin F. Hunt, deceased, and he took up the proceedings which had been-previously commenced in the name of Brown and wife, and afterwards, February 1st, 1833, filed a bill entitled a bill of supplement and revivor, in substitution for bill filed in 1822, setting up the claims which had been originally set up by C. T. Brown and wife, claiming a large amount over and above a moiety against the copartnership estate; praying an account of all these claims; and praying, besides, that a suit which had been commenced against him, on a bond given by him for a purchase from the commissioner, of a portion of the copart-nership estate, should be enjoined, alleging that the bond was only given to enable the commissioner to close his sales; and that when the account should be taken, it would appear that he was entitled to a much larger amount from the copartnership estate.

It was shortly after this that the sale of the sheriff was made, as the conveyance bears date December, 1833. The account claimed by Mr. Hunt in his supplemental bill, would clearly, I think, have embraced any such purchase or debt from him. He could not ask an .account against the other persons entitled to the joint estate without bringing into it all that he had himself received from the same source, and these' proceedings have been regularly continued to the present cause, in which an order was made, at the last term, reviving *273all the former proceedings and decretal orders not already carried out.

It is admitted by the answer of the executor, that the purchase money expressed in the deed, was never paid by the testator, on the ground, as it is alleged, of existing claims, which, if established in his favor, would have superseded the necessity of such payment; and it is further admitted that the testator always acknowledged his obligation for the said purchase money, and that it is now payable out of the proceeds of sale.

But it has been contended before me, upon the defences orr behalf of the creditors of Mr. Hunt, that this claim is barred by lapse of time and the statute of limitations; that it was so before the death of the purchaser, and that a claim thus extinguished, cannot be subsequently revived as against creditors by the admission of an executor. Whether an, executor is, in all cases, bound to set up the bar of the statute-against a claim which he knows not to have been paid, but. to have been constantly acknowledged by his testator, and. whether a creditor can set up such bar against such acknowledgments, might admit, perhaps, of some doubt. But I do not rest my conclusion upon this. I think the plaintiff’s claim cannot be defeated by the statute, for two reasons: first,, because proceedings have been constantly pending in this-Court for the settlement of claims within which it is em.braced; and, secondly, because the purchaser was himself the attorney of the commissioner or receiver having charge of *ifoe-*copartnership estate. If another person had been the purchaser, Mr. Hunt, as the attorney for the plaintiffs on the record, or for the commissioner to whom the assets had- been transferred, would have been entitled to receive the purchase money from the sheriff; but being himself the purchaser, he may be considered to have received it in that character; and therefore could not have set up the statute of limitations,, a.t least while proceedings embracing such an accountability were pending. If the purchase money had been paid to.the *274commissioner by Mr. Hunt, or, if upon non-payment, the land had been re-sold, and the proceeds so paid into Court, I think there can be no doubt that the complainants would have been entitled to one moiety of the amount that Mr. Hunt had contracted to pay, and it does not appear that this right should be defeated because the sale has only been lately made.

I therefore report as my conclusion, that the complainants are entitled to one-half of the purchase money expressed in the conveyance, with interest from the date of the deed, to be paid out of the proceeds of sale now in my hands.

Besides this, however, the complainants contend that they are entitled to have the residue of the proceeds of Crow Island applied in liquidation of the amount which has been heretofore decreed to them, on account of the purchase by Mr. Hunt of a piece of land called Clegg’s Point, which was included in the copartnership or joint estate. The character ■of this demand will be understood by reference to the decree <of Chancellor Dunkin, made June, 1850, by which it is recog>nized. 3 Rich. Eq., 522.

It appears (Chancellor Dunkin’s decree, 1850) that the plantation known as Clegg’s Point, had been mortgaged to secure a debt due to the copartnership estate, that the first purchaser not having complied, it was re-sold by the commissioner under the order of this Court, for the benefit of the ■parties entitled to the copartnership estate, and purchased by Mr. Hunt for the sum of $8,010, and a claim for a portion of this amount being subsequently established in favor of third parties., Mr. Hunt was declared liable for the difference between such claim and the amount of his bid, to one-half of which the complainants were decreed to be entitled to be ■paid .by Mr. Hunt.

The complainants insist that the funds recently received from the proceeds of Crow Island are to be considered as precisely of the same character; in fact, that the money to ;be made in the execution against Nathan Huggins and the *275proceeds of sale of Clegg’s Point, are portions of one common fund, to one moiety of which they are entitledand that if they have not received it out of one portion, they are entitled to receive it out of the other; and I think this position correct. If both amounts had been paid into Court as part of the copartnership assets, they would have composed one fund divisible in moieties between the complainants and Mr. Hunt, or his estate; if only one, however, had been so paid in, then neither party would have been allowed to take out any portion until he had been charged with what he had already received out of the same or an equivalent fund, and a debt of this sort for a purchase, must be regarded as equivalent to a receipt, so that the fund now in the Court, from the sale of Crow Island, must be paid in such manner as to equalize the share of those entitled in moieties.

I therefore report, lastly, that the residue of the proceeds of sale of Crow Island now in my hands, after providing for the claim previously made, or so much as may be necessary, should be applied in liquidation of the amount decreed to be due to the complainants as their moiety of the amount due on the purchase of Clegg’s Point by Mr. Hunt.

The complainants excepted to so much of the report of master Tupper, in this cause, in the matter of the rights of the parties to the proceeds of Crow Island, as concludes that the purchase made by Banjamin F. Hunt, deceased, of the tract of land called Crow Island, is not to be treated as made for the joint benefit of himself and the complainants, so as to render them equitable tenants in common, according to their interests in the copartnership estate, and entitled to the proceeds in that proportion.

. The defendant, Benjamin F. Hunt, executor of B. F. Hunt, and a creditor, excepts to the report as follows:

1. Because Crow Island never was copartnership property, and a copartnership interest in the debt of Huggins, in pay*276ment of which it was sold, could not affect the property itself in the hands of a purchaser.

*2.*Because, when Col. Hunt purchased Crow Island, he became responsible to the sheriff for one-half of the purchase money, and was accountable therefor, as a personal debt, while Crow Island itself, by conveyance from the sheriff, became his own absolute property, and subject as such to all judgments then existing against him; whereas-the master, in his report, would displace such legal liens in favor of parties who could only charge Col. Hunt with one-half of what he owed to the sheriff, as one item of an unsettled account.

3. Because the equitable lien that is now claimed by the complainant, and sustained by the report, was never pretended to until a comparatively recent period, while they had permitted Col. Hunt to hold the property as his own unencumbered estate for more than ten years, during which entire period he held adversely as to any such presumed lien.

4. In the decree as to Clegg’s Point, the liability of Col. Hunt was expressly decided to be merely personal; and there is no reason for subjecting the Crow Island purchase to a different rule of construction.

5. This defendant, as executor and creditor, concurs in all the exceptions filed by other parties to the said report, so far as they are consistent with his answer and the above exceptions.

The defendant, Milberry S. Martin, excepted to the report, on the grounds and for the reasons following :

It is submitted that the master is in error in supposing the complainant to have any lien or priority on the funds derived from the late sales of Crow Island. Because—

1. The complainant had no equity arising out of the proceedings referred to by the master, for those proceedings originated 1st February, 1833, and had relation to the state of accounts between the parties at that time; whereas, the sale to Mr. Hunt, of Crow Island, took place in December *277thereafter, and was wholly independent of the state of the account existing at a former period.

2. The sale and deed of conveyance to Mr. Hunt, by the sheriff, invested Mr. Hunt with an absolute title, in his own right, without any trust; whereas, the master’s ruling has,in effect, declared a trust, of which there is not the least evidence in fact.

3. Mr. Hunt not complying with the sale, the sheriff should have re-sold, and otherwise proceeded under the Vendue Act of 1785. Not having done so, the complainants should have pursued the sheriff; none of these proceedings having taken place, they lost all claim to the land, and consequently to the funds arising from the sale.

4. Mr. Hunt held an adverse possession for over twenty years between his purchase and the master’s sale; this period was enough to render any equitable demand a stale claim, and would have barred a legal claim to the land twice over.

5. That the claim, if any, having been barred by the statute, and by lapse of time, whilst testator lived, the'executor could not revive it by any admission on his part.

6. That the decree, in the matter of Clegg’s Point, made by Chancellor Dunkin, June, 1850, was a mere general lien, and did not entitle complainants to any priority of payment out of the proceeds of Crow Island.

7. That, according to said decree, the Clegg’s Point transaction constituted no part of the original matters of controversy in issue between the parties, and consequently is not affected by any of the equities incident to them.

8. In all other respects, the former grounds will apply to the Clegg’s Point transaction.

Dargan, Ch. The report of master Tupper, as to the proceeds of Crow Island, in this cause, with the exceptions to the same, having been submitted for some conclusion, by the Court; without opportunity for argument or consideration, it is, with a vierv to the ultimate decision of the questions *278involved, ordered, that the exceptions severally be overruled, and the report be confirmed.

The complainants, and the defendants, Mrs. Martin and B. F. Hunt, executor, appealed on the grounds taken in their several exceptions.

*Mitchell,*for complainants.

*Northrop, Simons, Campbell, Whaley,*contra.

The opinion of the Court was delivered by

O’Neall, C. J.

The greatest difficulty experienced in this ancient and vexed case, has arisen more from the accumulation of documents and the obscurity of facts, than from any intrinsic difficulty in the questions at issue.

1. Crow’s Island. It appears that this land was the property of Nathan Huggins (deceased). It was sold, as such, under a *fi. fa.,*issued upon a judgment recovered by William S. Smith and Peter Cuttino, administrators of George Smith, surviving copartner of George and Savage Smith, against Charles Huggins, executor of Nathan Huggins, deceased. This debt was part of the assets of George and Savage Smith, which was undivided,and placed in the hands of Mr. Heriot, as receiver. Col. Hunt was his attorney for the collection of the debt; and also his agent for the management of the undivided partnership assets. He, by purchase from Brown and wife, the only child of George Smith, deceased, had an interest of one-half in the debt; the other parties, the children of Savage Smith, had an interest in the other half. The land (Crow’s Island) was sold, and purchased by Col. Hunt, for a sum very nearly the whole amount of the debt; the deed was made to him the second day of December, 1833. There is no plea of the statute of limitations. The first question which arises, does lapse of time, twenty years, raise the presumption *“ omnia esse rite acta,”**279and therefore, that it cannot now be questioned, that the purchase of Col. Hunt was in his own interest, and not as trustee of himself and the other parties in common interest with himself? This presumption, it must be remembered, is a presumption of fact, and not an irrebuttible presumption. Nor is it like the statute of limitations, which is a statutory bar to the remedy, and, in general, cannot be thrown aside by an executor where the remedy is barred at the time of the death of the testator.

Keeping these distinctions in mind, let us turn to this case. How is Col. Hunt to be regarded independent of the lapse of time? He bought under an execution obtained by him as an attorney, and also as an agent for the receiver, in the collection of a debt which, in equity, belonged to him and the children of Savage Smith. Beyond all doubt, he was at the option of his copartners to be rated, either as a trustee, in the purchase, or accountable for the purchase money. The master’s report finds the fact that he paid the purchase money, by the use of the debt, but declines to charge him as trustee principally because no express trust was proved. That was not necessary. Equity implies such a trust, from two circumstances: the relation of confidence, which he occupied, as attorney, and also from the fact, that whatever was paid for the land was the debt, in which he and the children of Savage Smith-had an interest in moieties. These facts make him an implied trustee.

But, it is said, these are mere presumptions, and cannot now be set up after this great lapse of time. There are two answers to this. First, that the settlement between Col'. Hunt and the children of Savage Smith, of the partnership, has been the subject of “ hot litigation,” as is said, in *Smith and Hunt,*3 Rich. Eq., 465, since February, 1833, and that in a case so situated, the presumption cannot arise, and in connection with this it may be remarked, that this objection does not come from. Col. Hunt himself, who, it is probable, from statements made by his executor, and hereafter to be noticed, *280would never have resorted to lapse of time, as a defence, but it is interposed by. persons who claim to be creditors of Col. Hunt. They cannot set up an equity superior to the present claimants, who are not only creditors but who have furnished the very means of acquiring the property. But the second answer is, that the executor states *“*that Crow Island, formerly belonging to Nathan Huggins, against whom a judgment had been recovered, in favor of the said copartnership, for about $3,265, was put up for sale, and was purchased, as this defendant believes, by the said Benjamin F. Plunt, to whom a deed of conveyance was made and delivered: and this defendant believes it to be true, that the purchase money was not made, and that payment was refused *until a final settlement*of the accounts between the said Benjamin F. Hunt and the other parties concerned could be made, respecting which, there was much controversy up to the time of his decease.” This admission certainly ends all pretence of lapse of time, *as a*bar, if the executor’s admission can be allowed to have any weight in a case like this. He is both executor and creditor, and as to him and his rights it must have effect. So, too, I think it must govern the case as to all other parties. For it is not like the statute of limitations, which as a statutory bar, he might not be at liberty to waive. But lapse of time is a mere presumption in fact, which may be rebutted, and the executor’s admission is a statement-of fact, which completely destroys the presumption. I am, therefore, satisfied that the deceased Col. Hunt must be regarded as a trustee for himself and his copartners in the purchase of Crow Island, and that, of course, he and they are entitled to moieties of the proceeds.

2. So, too, as to Clegg’s Point. I concur in the view of the master, that the proceeds of sale in that respect are a common fund with the proceeds of Crow Island, and that the complainants are entitled to moieties of both, and that Col. Hunt, or his estate, is entitled to the other moieties. Of course, *281if Hunt has received any part, or parts, that must be deducted from his moieties, so that he shall receive that much less, and thus equality be produced. The circuit decree and the master’s report are modified according to these views, and the master is directed to pay out the fund accordingly.

Johnston and Wardlaw, JJ., concurred.

*Decree modified.*