Columbia,

Nov. 1849.

#### *J. H. King et al.*v. *Benj. P. Aughtry and wife et al.*

A trustee cannot claim tire benefit of the statute of limitations as against the personal representative of his deceased *cestui que trust*until such representative has been appointed; therefore creditors seeking to subject the trust estate to the payment of their debts, and who are entitled to make their claims through such representative, cannot be barred where the bar of the statute is not effectual as against him.

An assigned execution *field*good, although the assignees were, at the time they purchased it and took an assignment of it, the executors of one of the defendants in the execution, and had assets in their hands sufficient to satisfy it, after it came to their hands.

*Before*Johnston, Ch. *at*Newberry, July, 1849.

Johnston, Ch. The bill is to have satisfaction of certain executions hold by the plaintiffs, King, Pope and Harrington, out of four negroes, (or their proceeds,) which, it is contended, are bound (as the property of the Rev. Benj. S. Ogletree, the execution debtor; and the fundamental question in the case is, whether the negroes are in fact his property, or belong to the defendants, his children by a former marriage.

As far back as 1828 or 1830, Mr. Ogletree lived in Georgia, where he was employed as a Methodist minister. His circumstances were straitened; and his wife, the mother of the children, returned to Newberry, where her relatives lived, and settled upon premises belonging to her brother-in-law, the late Wm. Turpin, jr. Some short time afterwards, Mr. Ogletree (as it had probably been arranged) followed her and settled with her where she lived. They are described as being quite destitute at this time. Mrs. Ogletree had, however, become entitled, by inheritance, to a portion of land in Spartanburg. By means furnished by her friends, aided perhaps by the proceeds of this land, two of the negroes in question were purchased, to wit: Oney and Dorcas; the latter of whom has since become the mother of the other two, Nathan and Louisa.

*150Oney was purchased by Dr. Thos. J. Brazilman, Mrs. , Ogletree’s brother, from one Robert Lumpkin, who, by deed bearing date the 6th of March, 1830, conveyed her to him, (Brazilman) *“for the special use of his sister Mary Louisa G.*Ogletree, now of the District of Newberry, State aforesaid; and *to be subject to no other use or*purpose, *than for her immediate and special use,*whatever, *during her natural life ;*with the same use of the increase of the said negro, for the time aforesaid; and, *after the death of the aforesaid Mary Louisa G. Ogletree, to the heirs of her body*— to them, and them only,” &c.

On the 15th of March, 1831, one George Wilson sold and conveyed Dorcas to Dr. Burwell Chick; and it is declared in the conveyance that “said Chick hath purchased for the benefit of Wm. Turpin, jr.” And Mr. Turpin, by endorsement upon this instrument, executed the succeeding day, (16th March, 1831,) “ transferred all his right, title, interest and claim, to the within named negro woman Dorcas, with her future increase, *in trust,*to Benjamin S. *Ogletree,for the only use and benefit of his wife, Louisa Graff*Ogletree, *and the heirs of her body after her death.”*

Mr. Ogletree was thenceforward in possession of the ne-groes.

His wife died in 1834, leaving as her only issue four children, who are defendants in this suit; to wit: Mary, (now wife of the defendant Benj. P. Aughtry,) Caroline, (now wife of the defendant Wm. P. Beard,) Ann, still unmarried, and John, still an infant, and answering by Mr. Robt. G. Gillam, his guardian *ad litem.*These children were all infants at their mother’s death, and resided with their father.

The father married again and became possessed of a considerable property, consisting partly of negroes ; *and removed*to other land, which he cultivated with the new and the old stock of negroes in common. He, however, never claimed the former as his own, but always, even while he was poor, and before he acquired the second set, held them out as the separate property of his first wife and her children. And after he became possessed of the second set by marriage, while working both sets together, under overseers, he made a distinction in their discipline; conforming it to the wishes of his second wife, as to the negroes she had brought him; but exercising more of his own discretion in relation to the negroes in question in this suit, which he stated belonged to his first wife’s children, and offering this as the reason of the distinction in discipline which he directed the overseers to adopt. This was the uniform tenor of his conversation respecting these negroes. He constantly held them out as not belonging to himself, but to his wife and to her children.

Mrs. Brazilman, the mother of his first wife, died; and his *151children became entitled to shares in her estate, which was sold for partition. Upon petitions, setting forth that they were, interested in her estate, and had no guardians to take charge of their shares, he was appointed their guardian, in May, 1839. Neither in the petitions nor in his returns, as guardian, is any allusion made to these negroes, as belonging to his wards; the only reference being to the funds derived from Mrs. Bra-zilman’s estate; and this is the only instance, where an opportunity naturally arose for doing so, that he omitted to re-cognise the rights of his children in the negroes.

He became indebted. His creditors sued him and obtained judgment. On the 1st of March, 1841, he borrowed $1,200 from the executors of Pratt, for which he gave them his note, with George B. (Jaimes and Dan. B. Chapman as sureties. These executors obtained judgment on this note against himself and his sureties, the 18th of April, 1843; and on the same day lodged execution for the debt and interest and costs. At the same term the plaintiff, Dr. King, obtained a *sum. pro.*decree against him for $31 21, with interest from the 21st of the preceding January, and costs; upon which execution was lodged the 29th of April, 1843.

His creditors levied on his property. There were two levies, both made in 1843. The sheriff’s deputy says that when he made the first levy, Mr. Ogletree pointed out the ne-groes owned by himself, and said that in one of the cabins, which he indicated, were negroes belonging to his children. The former were levied on, and the latter left untouched. All his other property was levied on ; and on sale day, December, 1843, he was sold out, leaving him still indebted, and (irrespective of these four slaves) insolvent. Neither the execution of Dr. King nor that of Pratt’s executors was reached.

Clarke and Hancock, two of his creditors, were dissatisfied that these slaves had not been levied on; and at their instance an additional levy (which was the second levy spoken of) was made on them. Miss Ann Ogletree, who was just of age, was at her father’s the night this was done, and remonstrated against the proceeding, claiming the property as belonging to her and her brother and sisters; and in this statement her father concurred, and refused to give bond for the delivery of the slaves levied on. They were therefore taken off by the sheriff’s officer, and detained and advertised for sale the 1st Monday in January, 1844. But as the sale was forbidden, and no creditor would indemnify the sheriff for proceeding, he gave them up to the children on that day.

On the 3d of January, 1844, Beard and wife, Aughtry and wife, and Ann Ogletree filed their bill against the infant John Ogletree, for the partition of the slaves thus redelivered to them, and obtained a decree directing a sale for partition, under which Mr. Jones, the commissioner of this Court, sold *152them the sale day following, (February, 1844,) for $1,097. The larger portion of this sum he has, as the bill alleges, *'*collected and paid out to the parties, But there remains due on the bond of Miss Ogletree, who purchased Nathan and Louisa, a balance of between one and two hundred dollars.

By the failure of the creditors to indemnify the sheriff, and his redelivery of the slaves to the children of Mr. Ogletree, it resulted that no means remained of satisfying the execution of Dr. King and Mr. Pratt’s executors. The former was returned with *nulla bona,*and the sureties to the latter were left to pay it. Under these circumstances, Calmes, one of these sureties, obtained the executors’ leave to control their execution by sending it Into the district where Chapman, the other surety, lived, for the purpose of raising one-half of the money out of him. The execution was sent accordingly, and Chapman paid the half of the debt and costs, as required. It appears that Chapman was good for the balance, had he been pressed. He has since removed out of the State.

Calmes, who was bound for the residue of the execution, died without having settled it. The plaintiffs, Thos. H. Pope, and Dr. William H. Harrington, are his executors; having been appointed and qualified in 1844.

Under these circumstances they came to an arrangement with the executors of Pratt, and procured an assignment of the residue of the execution to be made to them, in their individual names, the 6th of January, 1845. For this assignment they gave their notes, with the principal legatees of their testator as sureties, which was taken and accepted as payment; and the execution assigned to them accordingly.

This bill was then filed, in which the plaintiffs set forth that they have no means of obtaining satisfaction of the executions, without resorting to the four slaves in question ; which they contend are the property of Mr. Ogletree, their debtor. Yet, expressing an unwillingness to disturb the sale which has been made of them, and a willingness to accept the proceeds of it, in lieu of the slaves so sold, and to confirm the purchasers’ titles, upon having said proceeds declared liable to the executions, they pray that the defendants, the children of Mr. Ogletree, and their husbands, be decreed to apply so much of the said proceeds as they have received, and the commissioner to apply so much of the residue of said proceeds as yet remains within his control — so far as may be necessary — to satisfy the said executions of the *plaintiffs;*and for general relief.

I have seldom had more strongly impressed upon me a conviction of the justice of any claim, than I have of the justice of the defendants’ claim to this property. That the *153friends of their mother bought it for the sole benefit of herself and her children, and that they attempted, in the best man-v ner known to them, to settle it for those purposes, cannot admit of a doubt. That it was never claimed by Mr. Ogletree, nor held out by him as his own, for the deception of his creditors, is clear. And, if I be compelled to decree it away from the children, for whom the benevolent donors intended it, and to creditors who cannot reasonably be supposed to have trusted to it, when they extended their confidence, it will be with a degree of regret inexpressibly painful.

2 Strob. Eq. 189,190.

After attentive perusals of the instruments of conveyance, which I have repeated again and again, with a view to discover some construction conformable to the justice of the case, and sustainable by the rules of law, I am compelled to admit that I can find none which secures the property, as fully as I think it ought to be secured, to the defendants.

I think it too .clear to admit of much doubt, that the attempted limitation to the children is ineffectual in law. By the rule in Shelley’s case, however contrary to the particular intention of the draftsmen of these conveyances, the whole title to the property vested in Mrs. Ogletree. I need not repeat the view I exhibited in the case of *Hull and Hull.*A conveyance to one, and the heirs of his body ; or to one, and after his death, to the heirs of his body; or to one for life, and after his death to the heirs of his body, vests the whole title in the first taker. And this is a rule of property, and not of construction; a rule which overrules the intention; and must be obeyed, irrespective of intention. The rule is intended to prevent the granting out inheritable estates, and yet annexing to them the qualities of estates not inheritable- — to prevent those who succeed to them, and who, from the inherent qualities of the estates themselves, must take whatever interests they do take in them *as heirs*— (that is to say through the grantee,) —from claiming as purchasers, and holding immediately under the grantor. Nothing, therefore, can prevent persons described as heirs, or heirs of the body, from taking *as heirs,*unless there is something in the context to show that they could not have been intended to take by inheritance; as, for instance, if they are set out as a new stock, or otherwise individualized, so as necessarily to deprive them of the qualities of heirs, and designate them as purchasers.

Nothing of this kind occurs in the deed for Dorcas, which covers three of the slaves.

In the deed for Oney, there is, indeed, a division between the life interest of Mrs. Ogletree and the remainder attempted to be created. But the remainder is to *heirs*of her body, and they must take *as heirs*— that is by inheritance, and not by purchase — for the rule is that whoever can take by inheritance, is thereby excluded from taking by purchase, and must *154take by inheritance alone. The words of this deed, therefore, giving this negro to Mrs. Ogletree during her natural life, and after her death to the heirs of her body, vest the entire interest in Mrs. Ogletree. It is supposed, however, that the super-added words *“to them and them only,”*are sufficient *to*obviate this effect. If these words refer to the mother as well as to her issue, they are simply nugatory; because, very clearly, no other *cestui que trusts*couLd possibly take, even if they were omitted. If, however, the words refer only to the heirs of the body, who are intended to take after Mrs. Ogle-tree’s death, they can have no effect to change the construction of the deed. Their obvious and only meaning is, not to *designate what heirs*of the body shall take, but to declare that heirs of the body, and none but heirs of the body, shall take *■*and this only gives emphasis to the rule that they shall take by inheritance.

Bail. Eq. 360.

But admitting, as I am compelled to admit, that the rule in Shelley’s case unites the remainder to the life interest in this case, and vests the whole in Mrs. Ogletree; I am, nevertheless, of opinion that the words of the instruments before me are sufficient to make it a separate property in her. Oney is to be held for her special use — her *immediate and special*use, and *none other;*and Dorcas, for her *only use and benefit.*It appears to me unnecessary to ransack cases for the construction of words so plain. The words *sole and separate use and behoof*could not import an intention to create a separate estate more clearly. In the case of Dorcas, the distinctness of the wife’s interest is rendered inore conspicuous and .indisputable, by the fact that the husband was constituted lief trustee.

If this property was the separate property of Mrs. Ogletree, it became, disíributáble, at her death, between her husband and 'children; and the third part, to which the husband became entitled, must be subject to his creditors. But to the distribution for this purpose, Mrs. Ogletree’s personal representative would be a necessary party.

The plaintiffs will be entitled to a decree to this extent, and upon these terms, unless some of the subordinate de-fences set up should prevail. Let us, therefore, proceed to consider these minor points.

The jurisdiction of the Court is objected to. But the process of partition and distribution, for the purposes just indicated, brings the plaintiffs’ bill within this jurisdiction, so far as it may be necessary to administer a remedy out of the specific property. In respect to the fund in court, the well considered case of *Bowden v. Schatzell*upholds the jurisdiction.

The statute of limitations is pleaded, but the plea cannot avail. Before the levy, the possession of Mr. Ogletree was *155consistent with the common interests of himself and his children. Whatthe children need is an exclusive possession ( in themselves; but certainly the possession of Mr. Ogletree cannot operate as a possession in the children, in exclusion of himself, the party having the actual custody. The levy transferred that possession to the sheriff; and the children never obtained an exclusive possession, until the sheriff delivered up the property to them. The statute then began to run. But this delivery was made the 2d or 3d of January, 1844; and the statutory period had not run out on the 28th of December, 1847, when the bill was filed.

Another objection is, that it was *laches*not to enforce payment from Chapman, who was able to pay. But, so far as Mr. Ogletree has an interest in this property, it is equally liable at law with Chapman’s property; and in equity it is more liable ; Mr. Ogletree being the principal debtor, and Chapman only his surety.

Another objection is, that there are remaining open other executions still older than those of the plaintiffs, to which this property will still be exposed, if the plaintiffs are allowed to come in by themselves and claim relief out of it. If the defendants had indicated, by plea, who these other creditors are, and established, by proof, not only that their executions are open, but still unsatisfied, the Court would have ordered them to be made parties. As it is, the Court perceives in the list of executions, one iytoasf^e£^Skirk & Hancock, which is older than the «diich appears to be partially open. But t&saStmre the cfs&lMtors whose execution was levied on the njjpnroes'in 1843, under which the slaves were re-delivered. *KuhWs*S^ftiMwBvhas not been satisfied, which it probable was by a by-sal® of Mr. Ogletree’s growing crop, the cre’fiiULsI^j^n'pj^rtheJess, bound by the statute of limitations ;\nd, I apprehemjy the defendants themselves do not desire to c941--t^p^4nrnEIow-ever, if the defendants desire it, after the bill snail have been amended as I shall direct, they may move for an order calling all execution creditors before the Commissioner to present and establish their demands.

The last objection is, that the executions of the plaintiffs have been paid off, and satisfied or extinguished in law.

It is proved that the execution of Dr. King has been paid; and it is ordered that the bill in respect to it be dismissed. The Doctor appears to have been surprized, when told that his name was made use of in the bill.

With respect to the execution now held by, the executors of Calmes, there is much difficulty. The gentlemen who now hold it, were, at the time they purchased it and took an assignment of it, the executors of one of the defendants in the execution, and had assets in their hands sufficient to *156satisfy it, after it came to their hands. Was the purchase of the execution a payment and satisfaction of it in law, in the hands of the original owners ? If so, the assignment was nugatory and carried nothing. In *Richborg*v. *TVest,*it was held, even at law, that a bail paying the money and directing the execution to be kept open, is entitled to enforce it against his principal.

1 Hill 309.

11 Eng. Con. Ch. Rep. 128.

Rice Eq. 283-4

Id. 286. 4 Russ. 277. Ch. Rep, 665°)

But the case of a surety is in this Court uniformly regarded with favor. In *Copis*v. Middleton, we have, indeed, the high authority of Lord Eldon for the doctrine, that if a surety pays the debt, it is extinguished as against his principal; and his demand, in respect of the payment, becomes a simple contract debt against the principal for the *money*paid— unless, says that great judge, there be a mortgage securing the debt, and which requires a re-conveyance. The contrivance, he says, was to procure an assignment of the mortgage to some friend for the surety’s benefit. But the case of *Hotham*v. *Stone,*reported in a note to the same case, was ruled the other way. In our own Courts, so far have sureties been helped, that in the case 1 Hill Ch. 344-5, cited by Chancellor DeSaussure, in *Pride*v. *Boyce,*a surety who paid the debt was remitted to the lien he had satisfied, and the satisfaction (which had been entered) was vacated.

The case, of *Copis*v. *Middleton,*is noticed by Chancel-ior Harper in *Pride*v. *Boyce,*and a seeming preference gNen to *James*v. *Davids,*which is contrary to it.

The general doctrine that a surety, upon paying the debt of his principal, is, in equity, entitled to an assignment of all the securities and remedies in the hands of the creditor, would seem to require that equity should set up this execution, even though according to the forms of law it be satisfied. And so I adjudge and decree in this case, though with much hesitation.

It is ordered that the plaintiffs have leave to make a party of the personal representative of Mrs. Ogletree. When this is done, they may apply for a final decree; unless the defendants shall, in writing, filed with the Commissioner, require that the execution creditors of Mr. Ogletree be called in, to present and establish their demands; in which case it is ordered, that the Commissioner do advertise for them to come in and do so, by a day to be fixed by him.

The question of costs reserved ; with an inclination, however, to divide them equally between the parties, plaintiffs and defendants.

The complainants appealed from the decree, and moved the Court of Appeals to modify the same, upon the following grounds.

1st. That his Honor erred in stating that Benjamin S. *157Ogletree constantly held out the slaves in question as not belonging to him, but to his wife and her children ; whereas, ( according to the evidence, he never so held them out untilv the time when he became insolvent, except on a few occasions; but, on the contrary, by his own uninterrupted possession of the slaves for many years after the death of his wife, without making any mention of them in his returns, as guardian of his children, he claimed them as his own property.

2d. That his Honor erred in decreeing that Mrs. L. G. Ogletree took a separate property in the slaves, under the deeds mentioned in the decree.

3d. That his Honor erred in giving to the defendants leave to move for an order to call in all the execution creditors of Benjamin S. Ogletree, to present and establish their demands.

4th. That his Honor ought to have ordered the defendants to pay to the complainants the amount remaining due on the execution which has been assigned by the executors of Pratt to the complainants.

The defendants appealed from so much of the decree as sustains the right of the complainants to distribution in the proceeds of the slaves described in the bill, and moved to reverse the same,

1st. Because his Honor erred in overruling the plea of the statute of limitations, inasmuch as it was established by the proof that one of the defendants, *to wit:*Miss Ann Ogletree, asserted her right (in behalf of herself and co-defendants) to the slaves in question, and at the time was in the actual possession of them, and which was acknowledged by the said Benjamin S. Ogletree more than four years before the filing of the bill.

2d. Because his Honor erred in deciding that Benjamin S. Ogletree was entitled to distribution of the separate property of his wife, (Louisa G. Ogletree) which had been conveyed to her separate use during life, and at her death, “ to the heirs of her body, and to them, and nobody elsewhen it was apparent, by the superadded words, “ to the heirs of her body, and to them and them only,” that her children were meant, and that they took the whole estate as purchasers.

3d. Because his Honor erred in deciding that the complainants, who were the executors of the defendant in the judgment, having paid the plaintiffs the amount due them, did not operate as a satisfaction; and that taking an assignment to themselves, in their own names, preserved the lien of the judgment and execution on said slaves.

*Caldwell, Pope,*complainants’ solicitors.

*Fair,*defendants’s solicitor.

*Curia, per*

Johnston, Ch.

In affirming the decree of the Circuit Court in this case, it may be proper to say that *158the question, whether the property covered by the two deeds , was the separate property of Mrs. Ogletree, is not necessarily involved. It is sufficient to observe that the title was in the two trustees; and that the interests of Mrs. Ogletree were merely equitable. Upon her death, the right to demand an execution of the trust, with a view to distribution between her husband and children, devolved upon her personal representative. The possession of a portion of the slaves by Mr. Ogletree was referrible to his character as trustee; and his possession of the others was as *cestui que*trust, by permission of the trustee, and must, therefore, be regarded as the possession of that trustee. Neither of these trustees can claim the benefit of the statute of limitations, as against the personal representative of Mrs. Ogletree, to whom alone they are responsible for the execution of the trust, until such representative is appointed. By the decree, the plaintiffs are entitled to bring in this administrator, when appointed, and make their claim through him; and, therefore, they cannot be barred where the bar of the statute is not effectual as against him.

This view, in which the interests of Mr. Ogletree, intended to be made subject to his debts, are regarded as equitable, renders it proper to enlarge the order for calling in his creditors, by extending it to all his creditors, whether holding liens or not. And it is ordered, accordingly, that the Commissioner do, by the usual publication, call them in by a day to be fixed by him, to render their demands, *upon oath,*and establish them by the necessary proof. Also, that the Commissioner do report the proportions to which the different creditors are entitled. Whether any preference is to be allowed among the creditors, in respect to liens or' otherwise, is a question now reserved. It may be made upon the reference, and brought up by way of exception to the Commissioners report.

In all other respects the decree is affirmed, and the appeal dismissed; and it is so ordered.

Dunkin and Dargan, CC. concurred.

*Decree affirmed.*