#### John L. North *and wife,*vs. T. Drayton, *administrator*Glen Drayton.

*J1 mortgage of negroes was proved, executed by defendant's. in~ testate in*1796, *reciting that it was given to secure the payment of a bond for*£715. 18s. 9c?. *The intestate was afterwards appointed the executor of the obligee; and in*1810, *the de-*_ *fendant, in a bill fled in this court for.an injunction, swore that he believed the bond to be lost Held that the existence and loss of the bond were sufficiently proved.*

*The obligor being the executor of the obligee, and the defendant ■his administrator, raised a trust in defendant m favor of those ■entitled to the proceeds of the bond, under the will of the obligee; and this, as well as ‘the defendant's recognition of the debt by his bill of*1810, *with the circumstance that complainants had long been endeavoring to procure evidence to establish their claim, rebutted the presumption of payment arising from lapse of*time. :

*If the proceeds of the sale of the mortgaged negroes should not*- *be sufficient to satisfy complainants claim, defendant was*order*ed to account for their hire, from the time they had been in his possession.*

It appeared in this case, that in January 1783, Glen Drayton, with *defendant*as his security, executed a bond to Mrs- E. Elliott, the mother-in-law of Glen Drayton; principal £6,700 currency, payable on the 28th January, 1784. On 9th January, 1790, Glen Drayton, as complainants alledged, executed a second bond to Mrs. E. Elliott, condition £715 8s.-' 9d. payable ; ; but no bond was produced.

Complainants relied on an original mortgage wiiich they produced, dated 11th January, 1790, and recorded 14th January, 1790, in the secretary of state’s office, reciting such a bond as that above described. Complainants also relied on *35the inventory of G. Drayton’s estate, made by the administrator in 1797, in which he notes some of the negroes in this mort»' gage, “ as under mortgage.” Likewise on a bill for an injunction, filed 9th April, 1810, by the present defendant, against the late Judge Drayton, as assignee in trust of Mrs. E. Elliott, to stay the collection of the judgment on the bond of 1783. In this bill, the present defendant swore that he believed the bond of 1790 tobe for the same cause and consideration as the bond of 1783. He also stated that the bond had never been in the possession of Ju,dge' Drayton, the trustee of Mrs. Elliott, nor did he know any thing of it. That it must therefore be lost or mislaid.

In 1792, (November 30,) Mrs. E. Elliott made her willy appointed Glen Drayton, and Mrs. G. Drayton her executors, and divided and bequeathed to Judge Drayton, (after sundry dispositions of her property,) all the residue of her estate, real and personal, in trust for the children of Glen Drayton; of whom the complainant, Mrs. North, was the sole surviving child and representative. ■ On 29th May, 1783, Mrs. G. Drayton qualified. Neither the bond of 1783, northe bond and mortgage of 1890 was. mentioned either in the will of Mrs. E. Elliott, nor in the appraisement of her estate. John Drayton accepted the trust, and acted under it till a final settlement with complainants, in 18 . In 1894, April 19, G. Drayton executed to' Judge Drayton, an as-, signment of a legacy to him from Governor Glen, in trust as a security for defendant, against the bond of. 1783. In June, 1796, Glen Drayton died: defendant administered in January, 1797.

He rendered an inventory of the estate, but no accounts., G. Drayton died utterly insolvent, as appeared from a list of 60 .judgments against him. It appeared that defendant had become his security for a very large amount, from 1779, to 1788; and that Glen Drayton was indebted to his father’s estate, (of which defendant was surviving executor,) in the sum of *£*984, at the time of his death.

In December, 1806, complainants were married. Mrs, North was of age at that time. Mr. North removed to Pen» *36dleton in 180S. He applied to different persons for informatios'i, soon after his marriage, as to the estate of Glen Drayton, and continued his enquiries from time to time.

The mortgage was drawn by the late Judge Drayton; , the schedule to the marriage settlement of the complainants, was also in his hand-writing; he signed it as a trustee. The mortgage and bond were not noticed in it. In 1818, complainants filed a bill against said Judge Drayton, for an account and settlement of Mrs. Elliott’s estate.

Complainant proved by his acts and declarations, that he had never abandoned his claims on defendant. Defendant objected to this testimony, but it was allowed.

In the progress of the cause an objection was made for want of parties; the complaint, Mrs. North, being a cestui qua use, either her trustee or the executor or an administrator *de Bonis non of*Mrs. Elliott, should have been a party. This objection was over ruled.

Chancellor *Waties.*

The bill in this case was brought for three distict claims; but two of these being unsupported by any-evidence, the counsel for the complainants insist only on the remaining one. . This is founded oñ a mortgage of twenty-two negroes, executed by the defendant’s intestate, Glen Drayton, to Mrs. Elizabeth Elliott, dated 11th January, 1790, and recorded on the 14th of the same month. It'was given (as it states) to secure the payment- of a bond of Glen Drayton to Mrs. Elliott for the sum of £715 18s. *9d.*anti also to indemnify her for his share of the debts of her late husband Samuel Elliott. It appears that Glen Drayton had acquired some of these negroes by his marriage with the daughter of Mrs. Elliott, and the rest by a .purchase from her, as the executrix of Samuel Elliott. The bond referred to in the mortgage has not been produced, but in a bill filed by *the defendant*in *1810,*praying an injunction against a judgment obtained on a former bond, given by Glen'Brayton in 1773 to Mrs. Elliott, to which the defendant was security, he stated that this second bond had been lost; and in that bill he also alleged as the *ground*for relief, thu.t this second bond anu the mortgage had been given as *37*H*substitution for the first, but after an argument before chan-* cellor Rutledge the injunction was refused.

It is again insisted for the defendants that this second bond was a substitution only, and some memoranda of Glen Drayton have been offered, to shew that this was liis view of it; but these are very obscure and inconclusive, and are besides not admissible as evidence, because they are the declarations of the obligor in avoidance of his deed. There are however some circumstances which seem to favor such a presumption. Mrs. Elliott’s property was small, and so was that of the éstate of her-husband Samuel Elliott, from which Glen Drayton received only twelve negroes as the share of his wife, and these were encumbered with debts of the estate. It is not easy therefore to conceive how he could become a debtor to either for such large sums as his two bonds amounted to. But Mrs. Elliott may have bad monies at interest, which she loaned to him, or he may have used the funds of the estate; and there is one fact which goes very far to destroy the presumption that the second bond was a substitution for the first; which is, that Glen Dray-ton assigned, four years afterwards, a considerable legacy left him by his uncle, Governor Glen, to indemnify the defendant against the first bond. This makes it very improbable that he should have before given the second bond with the mortgage, for the same purpose, and shews by almost a necessary implication, that these must have been given for a distinct consideration. What this could have been is certainly a matter of doubt, and if the claim rested on the extrinsic evidence of a good consideration, there might be some difficulty in establishing it. But the complainants have a legal ground in their favor, on which they have right to insist; and I am more disposed to give them this ground, because all the equity now relied on for the defendant, was alleged in his former bill for an injunction against the first bond, and was not deemed of. sufficient weight to entitle him *to*relief; the fair inference from which is, that this mortgage was not then considered as a substitution, but as the evidence of an independent debt. And this is the legal presumpSion. The mortgage appears to be unsatisfied, and it recites *38that a bond was given by Glen Drayton to Mrs. *Elliott, for the*payment of £715. 18s.'9Ü. which it was intended to secure, as well as to idemnify her against the share of the debts of her husband’s estate. This recital is evidence that he owed her that sum of money, and the law presumes that the consideration for it was a good one.

In *Annandale,*vs. Harris, 2. *P. W.*434, “the recital in & deed that the covenantor had given a bond, is a sufficient evidence of there having been such; it is a confession by the obligor himself, and stronger than a verbal confession, it being under his hand and seal.” So in *Skipwith,*vs. Shirley, 11 *Ves.*65, it was decreed that a sum of money should be raised under á deed of appointment, on the recital of it in two other deeds.

It is contended that this claimof the complainants is barred by length of time. I can see nothing to support this ground. There has been no such laches or lapse of time as will effect their claim. The obligor was the executor of Mrs. Elliott, and the defendant is his administrator. This raises a direct trust in both, and the bonds and mortgage must be presumed to have been in their possession, or in that of John Drayton, the trustee of Mi’s Elliott; but no presumption can arise that the bond has been satisfied, for the defendant admits in the same bill that it had not been paid; and in the inventory which he returned of the estate of Glen Drayton, he describes the negroes named in the deed of mortgage, as “negroes under mortgage.” This ¿leed did not come in the possession of the complainant, Mr. North, for some time after his marriage, and it has been proved that he has since been persevering in his endeavors to procure testimony to support them. He has failed to do so with respect to two of them, but I am of opinion that the remaining one has been sufficiently established.

It is therefore .ordered and decreed, that the commissioner do take an account of the principal and interest due on the bond recited in the mortgage from Glen Drayton to Mrs. E. Elliott, and that the negroes named in the said mortgage, with their issue, now in the possession of the defendant, he sold by the commissioner to satisfy the amount which may be found *39due on ¿lie said bond; and if the proceeds of such .sale should not be sufficient to discharge fully the said amount, it is further ordered, that the commissioner do take an account of the'annual hire and labor of the said negroes since they have been in the possession of the defendant, and the amount thereof, of so much as may be requisite to make up the deficiency in the •said sale, be paid by the defendant to the ¿ommissioner, who' shall pay over the same, together with the proceeds of the said ■sale, to the complainants; provided that if there should be any -legally subsisting liens on the said negroes, which may have a legal priority to the said mortgage, the parties claiming them shall be allowed to prove the same within three months after public notice for that purpose be given by the commissioner, subject however to any legal objections which the complainants inay have on account of length of time or limitations; and such lien, if so proved, shall be first paid-out of the said fund. And it is further ordered, that the costs also be paid out of the same.

From this decree the defendant appealed, on the grounds,

1st. Because the parties before the court were not sufficient:

2nd. Because the right to sue, having been vested in the legatee in trust from 17.93, when Mrs. Elliott died, to 1819, when, the bill was filed., it was such laches, that defendant is entitled to the benefit of it against -the complainants; although a part of the time Mrs. North was a minor, more than 20 years having elapsed between said two dates, without suit or -even demand:

3rd. Because there was no proof that any bond ever ex» isted,- nor was there any account given of it if it had ever existed; nor was there sufficient evidence under all the circumstances, to justify the belief that there ever was such a subsisting debt:

. -4th. Becaus-e if the evidence sufficed to show that such debt ever existed, yet the testimony justified the belief: 1st. that it was a substitute for the bond of 1783; 2nd. that if it were not, yet the lapse of time and circumstances justified the opiii > ion that it was paid, satisfied or otherwise settled.

*405 th. Because the judge has ordered that the defendant should account before the commissioner for the annual hire and labor of the negroes under mortgage, since they have been in' his possession: Whereas it is contended by defendant, that the mortgagee is not entitled to an account of the mesne profits as a preferred creditor, hut only a general creditor of the estate;'" that the mesne profits belonged to the common fund of assets-, distributable among the creditors according to the legal order for payment; but if the mortgagee be entitled to any account, it can only be from the filing of the bill:

Gth. Because under the doubts and difficulties which prevailed in this case as to the supposed bond of 1790, the regular course would have been to send the question to be tried under an issue at law.

*Grimlce, Frioleau*and *Hunt,*for *appellants.*

The proper parties are not before the court. The complainant, Mrs. North; claims a legacy from her grand-mother; but she is not the representative of her grand-mother. If there was an assent on the part of the executor of Mrs. Elliott, to the legacy to John Drayton in trust, (which may be presumed) the representatives of John Drayton, the trustee, should have been parties. If there was no assent, the representative of Mrs. Elliott, should have sued. The complainants might have administered *de bonis non,*and ought to have done so. Such a bill cannot he supported, unless in a case of collusion between the executor and the person in possession of the fund. 3 *Pr. Wms.*349; 2 *Ath.*513; 3 *Br. Ch. Ca.*25; id. 624; 1 *Vern.*51. If however, the proper parties are before the court, the complainants must prove the existence and contents of the bond. Bare recitals in a deed are not conclusive; they are never sufficient without the evidence of further circumstances. 6 *Mod.*12 *Vin.*233; 11 *Ves.*65; *Phil. Ev.*202. In the case of *Annandale*and *Harrist*the bond was in court. The recital is not sufficient evidence of the contents of the bond. It states to be sure a sum of money due on the bond, but it may have been qualified by conditions.The language of the mortgage affords a presumption that it may ’nave been a bond to indemnify Mrs. Elliott, against Gleyi *41Drayton’s share of the debts of her husband’s estate. Several circumstances strengthen this presumption. The circumstances of Mrs. Elliott, were very moderate; which renders it highly improbable that she could have advanced adequate considerations for debts so considerable as thebonds of 1783, and 1790.

The bond is not mentioned in the inventory of the estate of Mrs. Elliott. John Drayton the trustee, was a subscribing witness to the mortgage, and must have known of its existance, yet never took any steps enforcing it for the benefit of his ces-tui que use; conduct which would have been fraudulent, if it had been a subsisting money debt. He drew the schedule of complainants marriage settlement, in which no mention is made of this claim, as part of Mrs N’s. estate. The complainants settled with and released John Drayton, without noticing this claim.

The bill of defendant filed in 1810 is relied on as the evidence of the loss of the bond. But his statement in that cause ought to be taken in connection with his answer in this. He stated in general terms, according to his belief, that the bond was lost; but it plainly appears that he had no knowledge on the subject, and only supposed it to be lost because it was not in his possession. But if the statements of that bill are used against defendant, the whole bill must be taken together; and if so, it proves conclusively that the bond of 1790 was given as a substitute for that of 1783. If the admissions of a party are used against him, his declarations in his own favor, made at the same time, are admissible. All the circumstances which have been adverted, to support this statement. 4 *Bin.*339; 1 *Phil. Ev.*426; 1 *Ves. jun.*128; 2 *Atk*72; 3 *Bl. Com.*368; 10 *Co.*93.

But if the existence, contents, and loss of the bond are sufficiently proved, and it was a bona fide debt, there is nothing to rebut the presumption of payment arising from the lapse oftime„ The circumstances relied on for this purpose are the character of the defendant and his intestate as trustee; his recognition of the claim by the bill of 1810, and the memorandum of the inventory; and the complainant’s ignor'an^ of their rights.

*42The defendant is made a trustee by implication, because his intestate was .the executor of Mrs. Elliott, and he took this property with notice of the trust. But if there was an assent to the legacy, as is presumed, the bond and mortgage were vested in the trustee, John Drayton. He might have enforced them; and against him the presumption from lapse of time would arise. The statute of limitations will run against a trustee, in favor of any one but his ces tui qui trust. It lias been so held in cases in which the ces tui qui trustwereinfants. 3 *Pr. Wms.*309. In the case of *Todd,*vs. *Todd,*the presumption was allowed to arise in favor of executors, after a lapse of thirty years, though there were minorities all the time.

The memorandum respecting the negroes in the inventory, only proves that the defendant knew of the existence of the mortgage; it was his duty to notice it; and certainly *it is not*a recognition of the bond or an admission that it was for a bona fide debt. If the statements of the bill of 1810 be all taken together, it aids the proof of the demand having been satisfied. The parties have shewn no ignorance of their rights. They have been always as competent to sue as they are now, and it does not appear that they have any more information on the subject of their1 claim than they had when they commenced their enquiries.

All the circumstances go to strengthen the presumption.. The doubts respecting the existence and character of the bond, favor the conclusion that Mrs. Elliott may have cancelled it herself; as well as the fact of its not being included in the inventory of her estate. So does the conduct of the trustee, John Drayton, who must have known of its existence if it was a subsisting debt, and who took no measures to collect it. Were further cited, 2 N. & Mc. 164, 166; 3 Br. Ch. Ca. 639, 644; 3 Johns. Ch. Ca. 135, 144; 1 Sch. & Lef. 413; 1 Johns. C. C. 594, 616; 3 Johns. C. C. 216; 10 Ves. 93.

■ But at all events, the defendant ought not to bo made liable for hire and profits. They were' in the possession of his intestate and came into his possession as administrator; he is bound to account for the hire, but to the general creditors/ *43The profits of the slaves belonged to the estate and not to the mortgagee.

*Eoid*& *Petigru,*for appellees.

There can be no doubt but that Glen Drayton was a trustee for the benefit of the complainants. An executor is a trustee for those who claim under the will. The legal title to the negroes, after breach in the condition ot the bond, was in Mrs. Elliott and her executor. He who. takes trust property, with notice of the trust, is himself a trustee. *Wamberzie, vs. Kennedy, 4 Eq. Re.*747; 2 *Bridg. Dig.*677; 15 *Ves.*350. But ces tui qui use may always sue his trustee in this court. 2 *Bridg.*651; 3 *Ves.*560; 3 *Atk.*124.

Have, we shewn sufficient evidence of the existance, contents and loss *of the deed?*The recital *of the*mortgage deed is sufficient to prove the existance and contents, independently of defendant’s statement in his bill of 1810. A recital oí a t^eed in another deed, has been considered sufficient in chancery to set up a lost deed. 11 *Ves.*64; 17 *Ves.*134. In *Annctn-*dale. vs. *Karris,*the lord chancellor says “ the recital in the deed, that the covenanter had given such a bond, is sufficient evidence of there having been such; it is a confession by the obligor himself, and stronger than- a verbal confession, being under seal.” So the recital of a lease in a deed of release is good against the releasor and all claiming under him. 1 *Salk.*286. A recital in a deed executed by one of the plaintiffs, evidence against all the plaintiffs; 17 *Johns.*335. A writing signed by plaintiffs, ádmitting the execution of a bond and warrant of attorney to them and stating the conditions, sufficient proof for defendants of such a bond, without producing it. 14 *Johns.*404.

There is as little doubt with respect to the contents of the bond. The mortgage describes it precisely and unambiguously as intended to secure the payment of money, as well as to indemify Mrs. Elliott. The supposition that it was not intended to secure the payment of money is utterly inconsistent and irreconcilable with the terras of the mortgage.

*44As to the Iossj Mrs. Elliott died soon after its execution in 1790; when it was payable does not appear. Her will, dated 30th November, 1692, recites that she was then ill, and the will ■was proved by the executor, Glen Drayton, 6th February, 1793. The bond and mortgage came into his hands; he died in 1796, and the defendant is his administrator. In 1810, defendant swears positively that the bond is lost. Can stronger proof of loss be required?

But the bond is to be presumed satisfied. Is it to be presumed satisfied because it is not found? In *Sluysken,*vs. *Hunter,*1 *Meriv.*40, a deed found among the donors papers can-celled, was set up on the presumption that it had not been paid by him. The deed was executed in 1777 and interest was paid to 1795. In 1799 the deed was acknowledged as subsisting, and a negotiation ensued respecting it, which was interrupted. In 1802 the grantor died, and in 1813 the bill was filed. It was asked in that case with confidence, how did the deed come into Hunter’s hands but by some arrangement. His hon- or decided that if no compensation was made, it was improperly cancelled; and there could have been no compensation execept between 1801 and Hunter’s death. As there was no proof of such, the deed was set up.

Here no compensation could have been made except between the date of the bond in 1809 and Mrs. Elliott’s death. The bond is very ancient, but the period within which satisfaction can be presumed, is very narrow; at the most, between January 1790 and November 1794. During that period, Glen Drayton received Mrs. Elliott’s money which he never accounted for, and was utterly desperate in his circumstances. By defendant’s own shewing, he had pressing creditors; but this was a creditor to befriend instead of pressing — to give more instead of receiving. Since her death there has *been no*one to receive; the debtor has been the payee. There is not the least evidence that the bond was ever in John Drayton’s hands.

The inventory made at the death of Glen Drayton shews ft to have b.een a subsisting debt. The conduct of the defendant for twenty years has been consistent with this admission. He *45has never sold these negroes to pay the general creditors of Glen Drayton, as itwas his duty to do, if this was not a subsisting debt; but retained them in his possession as covered by the mortgage. And this agrees with the statement of his bill of 1710.

Length of time can never bar a trust, as between trustee and cestui qui trust. *Norton,*vs. *Turville,*2 *Pr. Wms.*145; *Hovenden,*vs. *Annesley,*1 *Sch.*& *Lef.*630; *Arden,*vs. *Arden,*1 *Johns. Ch. Re.*316; *Haig,*vs. *Clifton,*4 *Eq. Re.*341; *Decouche,*vs. *Savetier,*3 *Johns. Ch. Re.*215.

Defendant cannot rely on a defence inconsistent with satisfaction, and presumption of satisfaction, at the same time. See *Reevse,*vs. *Brymer,*6 *Ves.*516. There the defendant relied on the evidence that the creditor had forgiven the debt, and., also on length of time as presumption of satisfaction; but proof of the release failing, the debt was enforced. The admission of 1810 was not qualified with any pretence that the demand had been satisfied.

The supposition that the bond of 1790 was a substitute for that of 1783, is a mere conjecture, unsupported by any evidence whatever. The defendant in his bill of 1810, only speaks of it as matter of belief; and it is strongly opposed by the circumstance that the bond of 1783 was not given up nor cancelled.

On the subject of hire and profits, cited, 1 *Bridg. Dig. Tit. account;*3 *Pr. Wms.*; 3 *Atk.*124.

*Chancellor Waties*

*delivered the opinion of the Court.*

We are of opinion that the decree of the circuit court in this case should be affirmed. The bond claimed by the complainants has been sufficiently established, and must be satisfied out of the mortgaged negroes in the possession of the defendant; and •in providing for this, it is just that the defendant should account for the profit of the negroes, if the proceeds of the sale of them should not be sufficient for the purpose. Although his original possession of them as the administrator of Glen Dray-ton was a lawful one, yet he had a full knowledge at the time they were mortgaged for the security of this debt; for he described them in the inventory of the estate as “negroes under mort*46gage,” and no oilier mortgage has been shewn. The trustee of the complainants was indeed also apprized of this mortgage, and his neglect to sue for the payment of the bond for which it was the security, would no doubt have barred their right under it, if there had been no subsequent recognition of the claim by the defendant. But in the bill which he brought in 1810, he has expressly admitted its existence, and insisted that it ought to have the legal effect of discharging'him from the former bond of Glen Drayton in which he was bound as surety. This destroys all presumption of its having been satisfied be'fore that period, and the lapse of time since has not been sufficient to bring it within the rule of satisfaction. It appears also that the defendant has held the mortgaged negroes’ for his own benefit, without giving notice to the complainants that he so held them, which makes him personally liable to them as a trastee for this claim, and as such he is bound to account for «he hire of the negroes. It seems just too, under these circumstances, that the bond should continue to bear interest until it is paid, as the delay in the payment has been occasioned by the acts of the defendant, and not by any laches or forbearance of the complainants. It is therefore ordered and adjudged that the decree of the circuit court be affirmed, and further, that the commissioner do allow interest on the bond of Glen Drayton up to the time when the said decree shall be executed.

Chancellors *Desausmr-e,*G-aillard, *Thompson*and James., concurred.