#### *A. J. Joyce and wife vs. Temperance Gunnels, George M. Gunnels, and others.*

If a plea is coupled with an answer to any part of the bill covered by the plea, and which, by the plea, the defendant consequently declines to answer, the plea will, upon argument, be overruled. The reason is, that pleas are to be put in *ante litem*contestatem; because they are pleas only, why the defendant should not answer, and therefore, if he does answer tt> any thing to which he may plead, he overrules his plea; for the plea is only, why he should not answer, and if he answers, he waives the objection, and of course his plea.

Defendant, an administrator, answered fully to every part of the bill, and in the answer, objected that the bill was prematurely filed. The objection being in the nature of a dilatory plea, *held,*that it was overruled by thé answer.

Tenant for life of a slave made a gift of the slave, and he was sold by the donee for a full price. Tenant for life died, and more than four years after her death, the remainder-man filed his bill against the donee, claiming the value of the slave. *Held,*that the bill was barred by the statute of limitations.

*260To cases of express or declared trusts, the statute of limitations is inapplicable, but implied trusts constitute no exception to the operation of the statute.

Express trusts are those which are raised and created by the act of the parties, and implied trusts are those raised or created by act or construction of law. Express trusts are declared either by word or writing; and these declarations appear either by direct and manifest proof, or by proof of circumstances creating a -violent and necessary presumption, that such declarations were made, either by word or writing, though the plain and direct proof thereof be not extant.

A tenant for life is an implied, and not an express, trustee.

The court will not enjoin a tenant for life from removing slaves, unless there is proof of danger. Without such proof, the remainder-man is only entitled to an inventory.

A bill by a remainder-man against a tenant for life, for an inventory, is always at the costs of the complainant. ,

*Before*Johkson, Ch. *at Greenville,*

*June,*1845.

*The Chancellor.*The late George Martin, by his last will and testament, devised and bequeathed to his widow, Charity Martin, amongst other things, the tract of land on which he then lived, and eighteen slaves by name, during her natural life, and at her death, to be equally divided between all the surviving children of his daughter, Temperance Gunnels, then the wife, and now the widow, of the late William C. Gunnels.

In a subsequent clause of the will, the testator gave to his said daughter, Temperance Gunnels, fourteen other negroes, by name, during her natural life, and at her death, them and their increase to be equally divided between her surviving children, and appointed William Dunklin, and his widow, Charity Martin, his executor and executrix, both of whom have since died. Temperance Gunnels has had seven children ; Eliza, the wife of defendant, William Leak ; Maria, the wife of complainant, Joyce ; the defendants, George M. Gunnels, Caroline, William, Ann and Harriet; the two last of whom, Ann and Harriet, died in the life time of Charity, the. testator’s widow, intestate and without issue, as I suppose, although it is not so stated in the pleadings. Wm. C. Gunnels died in 1844, and administration of his estate has been granted to the defendant, George M. Gunnels.

The bill states that after the death of Charity, the widow of the testator, all the negroes bequeathed to her for life, and limited over in remainder to the surviving children of Temperance *261Gunnels, have been distributed amongst the persons entitled, except a-man called Parker, who, the complainant charges, went into the possession of William Leak, one of the defendants, in the life time of Wm. C. Gunnels ; and it had as well be stated here, that the defendan t, Leak, admits that Parker did come into his possession, and that he has sold him; but states that he sold him as the agent of Wm. C. Gunnels in his life time, and exhibits his receipt for one thousand dollars, as the price paid for him, which is not controverted. TheLbill further states that *not long*since, the defendant, Temperance Gunnels, without any authority, made a partition and division of the slaves, and their issue and increase, bequeathed to her for life, and limited over in remainder to her surviving children, and allotted and assigned to each of her surviving children a portion of the said slaves; and that all of them have accepted and' received the portions so allotted to them, except the complainants, who refused to do so, believing, as the bill states, that the said partition was extremely partial and unjust. The said Temperance Gunnels retaining possession of the portions of Caroline and William, who are minors, and reside with her. That the defendant, Geo. M. Gunnels, has some time since sold Chesly, one of negroes, to certain traders in negroes, who have carried him without the limits of the State, and that the complainants fear and believe that others of the said negroes will be removed from the State, unless the defendants are restrained by the order of the court.

• The prayer of the bill is that an injunction do issue to restrain the defendants, Temperance Gunnels, George M. Gunnels and William Leak, from removing any of the said negroes out of the State, and that they be required to enter into bond and security for the forthcoming of the said negroes, at the termination of the life estate of the said Temperance Gunnels. That the defendants, Wm. Leak or Geo. M. Gunnels, as the administrator of Wm. C. Gunnels, should account for the value of the negro, Parker, and pay to the complainants their portion thereof. That the defendants, Temperance Gunnels and Geo. M. Gunnels, may be decreed to enter into bond and security for the forthcoming of the negro Chesly, at the falling in of the life estate of the said Temperance Gunnels, or account for his value.

The defendants, Temperance" Gunnels, George M. Gunnels and Wm. Leak, have answered severally, and they all admit the material allegations of the bill, except the charge of design or the danger of removing the negroes in their several possessions out *262of the jurisdiction of the court, which they unequivocally deny; and they admit that the defendant, Leak, sold the negro Parker, as the agent of Wm. C. Gunnels, to whom Charity Martin had given him up for $1000, which he paid to him in his life time ; and the defendant, George M. Gunnels, admits that, as the administrator of the said Wm. C. Gunnels, he is bound to account for his value if the court shall so award; but he insists that the complainants’ demand as to their distributive share of the said negro is barred by the statute of limitations. In connection with this defence, he states that the testator’s widow, Charity Martin, who had a life estate in him under the will, died in 1840. That partition of the personal estate bequeathed to her for life, and limited over to the children of the defendant, Temperance Gunnels, was made on the 10th December, 1840. That his intestate, Wm. C. Gunnels, died on the 17th or 18th day of December, 1844, and that administration of his estate was granted to him in January or February, 1845. The defendant, George M. Gunnels, also states that the negro Chesly] was given to him by his father in 1839, and that at his request, he sold him to one Hunter, who carried him to Mississippi ; and he admits that he will be accountable to the complainants for their proportion of his value, in the event of the complainant, Mrs. Joyce, surviving her mother, to whom the property was given for life.

In relation to the partition of the negroes bequeathed to Temperance Gunnels for life, they state that in February or March, 1845, reserving eight or nine of them for her own use, she procured the others to be appraised by disinterested persons, and then divided them herself into five lots, as nearly equal as practicable, arranging them as well as she could with reference to family connections, and assigned a lot to each of her children ; and that complainants having refused to accept the lot assigned •to them, she has since hired them out, with the intention of paying them the hire — and she proposed that where the lots were of unequal value, the distributees should make them so by proper contributions. That Caroline and William, two of the children, were minors at the time of the division, but that Caroline has since come of age, and taken the control and management of the lot of negroes assigned to her ; and that the lot assigned to William, who is still a minor, is employed on the plantation of his mother, the defendant, Temperance Gunnels.

There is no doubt that the court has the authority to restrain one who has a life estate in a chattel, from removing it out of *263tbe jurisdiction of the court, at the instance of one who is entitled to it in remainder, and to compel him to give security that he will not — b.ut so stringent a measure is never resorted to, but upon a reasonable distrust -or apprehension that the person in possession intends , to remove it, which must be shewn to the court by proof, in the same manner as other material facts are proved — and not upon the mere apprehension or fear of the party complaining. The defendants here positively deny in their answers, any intention on their part, to remove themselves, or send the negroes out of the State; and there has been no attempt to contradict this by evidence. The only fact attempted to be proved was, that the defendant, George M. Gunnels, contemplated removing those in his possession, from his plantation in Lau-rens district, to a plantation in Greenville, an adjoining district, where they will be as much under the power and authority of the court as in Laurens. The defendant, Temperance Gunnels, and all the children that are married, are settled on their several plantations, and are in good circumstances; those that are not, being minors, and reside with their mother; and, in the language of one of the witnesses, they are all respectable and entirely trust worthy. I do not, therefore, think, that in strictness, it is a case even for an injunction,'as that would imply a suspicion of their integrity, which I do not feel, and which is not warranted by the evidence. And if that was all sought by the bill, I should not hesitate to dismiss it. The partition and distribution of the slaves made by Mrs. Gunnels, are the only circumstances which throw the least shadow of suspicion on the intention of the defendants. If the object was to relieve herself from the trouble and vexation of governing them, or to provide temporarily for her children, there was nothing wrong or suspicious in it, however arbitrary or unequal the partition may have been. She was entitled to the property for life, and had the right to dispose of that interest as she pleased. If, on the other hand, the defendants regarded it as a final and absolute division of the property, which can hardly be supposed, (and we have no evidence on the subject) it is enough that they should know, that according to the provisions of the will, those children only who survive Mrs. Gunnels, will be entitled to share in the distribution ; and neither the minor children, who were incapable of consenting to it, nor the complainants who dissented, are bound by it; and if any one of" them should die in the life time of Mrs. Gunnels, that would derange any agreement that *264might have been made between or entered into between the other defendants, and render the whole void. The slaves ought not, therefore, to be removed out of the jurisdiction, and as an injunction will not subject the defendants to any inconvenience, I shall order it. The bill also prays a discovery as to the slaves apportioned to them, and now in the possession of the defendants severally, and in their answers they have set out their number, and described their names only. That is not excepted to, but as a long time may elapse before the life interest falls in, I shall order that the defendants do severally file schedules of all the slaves in their possession, with such further descriptions as may aid in identifying them hereafter.

The defendant, George M. Gunnels, admits his liability as the administrator of his father, Wm. G. Gunnels, for the value of the slave Parker, unless he is protected by the statute of limitations. There is no question, that Charity Martin, whether regarded as the executrix of the will of her testator, or as entitled to the slaves bequeathed to her for life, of whom Parker was one, held as trustee under the will for those entitled in remainder ; or, in other words, it was an express trust, and it will not be pretended that the statute of limitations would operate as a bar against the rights of the *cestui que trusts*under such circumstances. But it is said that the possession of William G. Gunnels, if a trust at all, was an implied and not an express or direct trust, and having terminated it by the sale of Parker, in the life-time of Mrs. Martin, the statute began to run from the time of her death, and four years having elapsed before the filing of the bill, the complainants are barred. On referring to authorities, and particularly to our own cases, it will be found that it has been often said, that the statute will operate in cases of implied trusts, but it is obvious that the distinction between those that arise out of the supposed intention of the parties and those that arise by operation of law, was overlooked. The case in hand will serve as an illustration of the first. Wm. C. Gunnels paid nothing to Mrs. Martin for Parker. He knew that she had only a life-interest, and that the remainder was limited over to his own children — I say he knew it, for his wife was largely provided for by the same will, and he could not have been ignorant of it; and although there is no direct evidence of it, there is no strained implication, in supposing that there was an ' understanding or agreement that he should hold for his own use for her life, and for the use of his children after her death — 2 *265Tory’s *Eq.*438 — §9, 1195-6. It is then a trust raised by the act of the parties, and although implied, it has all the properties and qualities of an express or direct trust. The statute cannot therefore operate to bar the complainants. Trusts arising out of the operation of law are governed by different rules, which it is,unnecessary to consider here.

The defendant, George M. Gunnels, admits also his liability to account for the value of the slave Chesly at the falling in of the life-estate of his mother, and I shall further decree that he give security to do so.

*It is ordered and*decreed, That the defendants do, within three months after notice of this decree, severally file in the office of the commissioner of this court, a schedule of the negroes bequeathed by the testator to the defendant, Temperance Gunnels, for life, with a limitation over to her children, now in their several possessions, describing them by their names and family connections and ages, as far as may be practicable ; and the said defendants, and each and every of them, are hereby ordered and enjoined not to send or remove all or any one or more of the said negroes from or without the limits of this State, until distribution of them shall be made in pursuance of the provisions of the testator’s will.

*It is also ordered and*decreed, That the defendant, George M. Gunnels, do pay to the complainants, out of the estate of his intestate, Wm: C. Gunnels, two hundred dollars, being the one-fifth part of the price at which Parker was sold, with interest thereon from the 10th December, 1840, the time at which the other negroes of the class to which he belonged were divided; and that he enter into bond with sufficient security in the penalty of one thousand dollars, to account with the complainants for any interest they may have at the death of Mrs. Gunnels in the negro Chesly at the price at which he sold him, unless he shall have the said negro present and forthcoming, to be distributed with the others of the class to which he belongs; and that the parties each pay their own costs.

The defendants appealed, and now moved this court to reverse the decree of the Chancellor, on the following grounds:

1st. Because the injunction ordered was granted without any adequate cause of complaint, contrary to equity, and mainly upon a misconception of the Chancellor, that.the negro Chesly was embraced in the division made in 1845 by Mrs. Gunnels and sold *266thereafter, when it is expressly stated in Dr. Gunnels’ answer that his father, in his life-time, in 1839, gave him Chesiy, and that he sold him by the request of his father in 1841.

2nd. Because the complainants’ claim to an account for their share of the negro Parker was barred by the statute of limitations, and if not so barred, they have adequate remedy at law.

3rd. Because the complainants’ bill was prematurely filed against Dr. Gunnels as administrator of his father, so far as respects their claim to an account for their share of the price of Parker, the intestate having’ died in December, 1844 — administration granted in January or February, 1845 — and the bill filed 7th May, 1845. •

4th. Because the decree requires all the defendants, severally, to file in the office of the commissioner a schedule of the né-groes bequeathed by the testator to the defendant, Temperance Gunnels, for life, with remainder to her surviving children, now-in their several possessions, describing them by their names and family connections and ages, as far as may be practicable; when the defendant, Mrs. Gunnels, alone was called on in the bill for an inventory of said slaves and to discover in whose possession they were: both of which she has done, and the other defendants have also set forth in their answers the number and names and family connection of the said slaves, now in their respective possessions.

5th. Because the decree is in other respects contrary to law and equity.

*Sullivan,*for the motion.

*Young,*contra.

*Curia, per*Dunkin, Ch.

It is proposed first to consider the claim of the complainants, in relation to the slave Parker. He was one of the eighteen negroes bequeathed to Mrs. Martin for life, with remainder to the surviving children of Mrs. Gunnels. During the life time of Mrs. Martin, she had given up Parker to W. C. Gunnels, and he was sold by the defendant, Leak, as the agent of W. C. Gunnels, for $1000. The defendant, George ,M. Gunnels, is the administrator of W. 0. Gunnels, and he, with the other parties to these proceedings, are his distributees.

The complainants insist that the administrator of Wm. 0. Gunnels must account to them for their share of the sale of Parker, under the will of George Martin.

Wfii? O, Gunnels died in December, 1844, and the bill was *267filed on the 7th May, 1845. • The defendant, in his answer, objects that the bill was prematurely filed, and prays the same ben-fit of the defence as if it were specially pleaded.

Nothing is better settled than that “ if a plea is coupled with an answer to any part of the bill covered by the plea, and which by the plea, the defendant consequently declines to answer, the plea will, upon argument, be overruled. The reason of this doctrine is, that pleas are to be put in *ante, litem*contestatem; because they are pleas only, why the defendant should not answer, and therefore, if he does answer to any thing to which he may plead, he overrules his plea, for the plea is only why he should not answer ; and if he answers, he waives the objection, and of course his plea.” Mitf. 299; Story, § 688.

The defendant has answered fully to every part of the bill. If his dilatory plea had been formally spread on the record, it would have *been*overruled by the answer. His condition is not improved by the fact, that what should have been the subject matter of a distinct plea, has been incorporated into the answer*

But the defendant also relies on the statute of limitations. Mrs. Charity Martin, the life tenant, died in 1840, and the com-1 plainants’ rights, whatever, they were, then accrued. On the 10th December of that year, partition was made among the children of Mrs. Gunnels, of all the negroes held by Mrs. Martin for life, except Parker, who had been previously sold by direction of W. C. Gunnels. The death of W. C. Gunnels occurred on the 17th or 18th December, 1844. It is urged on the part-of the complainants, that the plea of the statute is inapplicable, because Mrs. Martin was a trustee, and W. C. Gunnels sold Parker with a knowledge of the trust, and is affected with it. The principle is well established by the authorities, and indeed was not questioned at the argument, that to cases of express or declared trusts, the statute is inapplicable ; but that implied trusts constitute no exception. See *Fisher vs.*Tucker, 1 McC. Ch. 176; *Miller vs. Mitchell,*Bail. Eq. 437. In *Cook vs. Fountain,*3 Swanst. 585, Lord Nottingham remarks that “ express trusts are those which are raised and created by the act of the parties, and implied trusts are those raised or created by act or construction of law; express trusts are declared either by word or writing ; and these declarations appear either by direct and manifest proof, or violent and necessary presumption. These last are commonly called presumptive trusts ; and that is, when the court, upon consideration of all the circumstances, presumes there was a declaration, either by word or writing, though the *268plain and direct proof thereof be not extant.” “ There is,” says he, *“*one good, general, and infallible rule, that goes to both these kinds of trusts. It is such a general rule as never deceives *;*a general rule to which there is no exception; and that is this : the law never implies, the court never presumes a trust, but in case of absolute necessity. The reason of this rule is sacred ; for, if the chancery do once take liberty to construe a trust by implication of law, or to presume a trust unnecessarily, a way is opened to the Lord Chancellor to construe or presume any man in England o'ut of his estate; and so, at last, every case in court will become *casus pro amico*

In several cases it has been held, and may now be considered as settled, that the tenant for life stands in the nature of a trustee to the remainderman. It is only necessary to inquire whether this is a direct declared trust, or only a trust by implication of law. The simplest form of implied trust is put by Mr. Justice Story, as where property or money is delivered by A to B, for the use of C, or to be delivered to C. Although this might be regarded rather as a bailment for which an action at law would lie, yet, says he, it has been held on very high authority, that this is a trust, necessarily implied from the nature of the transaction, and which chancery will enforce in favor of the beneficiary, although no express agreement has been entered into *to*•that effect. 2 Story Eq. § 1041, 1196. The guardian of an infant is an express trustee, whose duties as such, are declared in the condition of his bond. But a man who enters on the lands of an infant, and receives the profits of his estate, is also a trustee, and accountable as such. But this latter is an implied trust, and when the infant, four years after he becomes of age, brings a bill for an account, the statute of limitations is as much-a bar to the suit, as it would be to an action at common lfiw ; and so it was ruled by the Lord Chancellor in *Lockey vs. Lock*ey, *Prec.*in Chanc. 518, one of the cases cited with approbation by Chancellor Waties in *Fisher vs. Tucker.*

An executor is a trustee. He holds on an express or declared trust, and as between him and the *cestui que trusty*the statute is inapplicable. Not so of a purchaser from an executor. He also is, to certain intents, a trustee, but this is an implied or constructive trust. This was the case of *Beckford vs. Wade, 17*Ves. 95. “ It is certainly true,” says Lord Eldon, “that no time bars a direct trust, as between *cestui que trust*and trustee ; but if it is meant to be asserted, that a court of equity allows a man to make out a case of constructive trust at any distance of time, *269I am not aware that there is any ground for a doctrine so fatal to the security of property, as that would be.” *Bonney vs. Ridgard,*1 Cox Cas. in Eq. 145, was also the case of a purchase from an executor, in which Lord Kenyon, master of the Rolls, held the purchaser to be a trustee, but that the demand was barred by the statute. The distinction between actual trusts, and trusts by implication, in reference to the operation of the statute of limitations, is explained by Lord Commissioner Ashhurst in *Townsend vs. Townsend,*1 Bro. C. C. 550. He says, “as to trusts being an exception t'o the statute of limitations, the rule holds only as between trustees and *cestui que trusts.*It is true that a trustee cannot set it up against his *cestui que trust,*but this is merely the case of a trustee by implication, and as such, affected by an equity; but that equity must be pursued within some reasonable time.”

The doctrine thus fully established, may be illustrated by the case under adjudication. The executor of George Martin is a direct trustee, to whom the statute affords no protection. But the tenant for life is a constructive or implied trustee. There is no “ direct and manifest proof of a mist declared either by words or in writing.” There are “ no circumstances creating a violent and necessary presumption” that such declaration was made, “ though the direct and plain proof thereof be not extant.” This is necessary to constitute an express trust. But he is like the purchaser from an .executor. He is affected by an equity. That equity must be pursued within a reasonable time, and the court adopts the statute of limitations as a convenient rule of restriction. W. G. Gunnels can be in no worse situation than the tenant for life, by whose permission he sold the negro. On the death of Mrs. Martin in 1840, the right accrued, and was barred by the statute, prior to the death of W. 0. Gunnels, in December, 1844.

The court concur entirely with the Chancellor, that this was not a case for injunction ; that the evidence showed no ground of reasonable distrust or apprehension on the part of the complainants, or any fact which would warrant a suspicion of the integrity of the defendants, persons proved to be, in the language of the decree, “all respectable and entirely trust-worthy.” The principle on which the court proceeds, is stated in *Smith vs.*Daniel, 2 McC. Ch. 150, and in the *recently*decided case of *Ramsay vs.*Joyce, McM. Eq. 253. Not being a matter of right, we think the injunction should not have been ordered. The enjoyment of the *270life estate should not be unnecessarily disturbed. Unless there is proof of danger, the remainderman is entitled only to an inventory of the property; 1 Story Eq. § 604 ; and in all such cases, as in bills to perpetuate testimony, of discovery merely, and the like, the proceeding must be at the costs of the complainants.

It is ordered and decreed, that so much of the decree of the circuit court as directs the administrator of W. C. Gunnels to account for the sale of the slave Parker, and so much' as awards an injunction against the defendants, be reversed. It is further ordered, that the costs of Mrs. Temperance Gunnels be paid by the complainants. In all other respects the decree is affirmed.

JohnstoN Ch. concurred.