#### *Martin vs. Price.****

Xjapse of time *held*to bar a *cestui que trusts*claim to real property in *the*possession of the trustee.

The statute of distributions has no application to the legal estate in trust property. Where, therefore, an estate in fee simple is vested in a trustee, his estate descends, on his death, to his *heir*at common law. *Per*Johnston, Ch.

*Before*Dubtkin, Ch. *at Chambers, Charleston,*

*October,*1845.

On the 26th of August, 1825, Robert Martin sued out a writ of foreign attachment against Samuel H. Lothrop, a wharfinger and warehouse man, then absent from the State, and afterwards, on the 20th of July, 1827, recovered and duly entered judgment on the same, for $6,522 49. On the 12th September, 1825, Lothrop, being in New York, executed an assignment of his property to his brother-in-law, William Price, Jr., in trust for payment, in the first place, of certain preferred creditors, and then of his creditors generally. William Price, Jr., the assignee, was also the principal *preferred creditor,*and accepted and acted under the trusts of the assignment. ' Robert Martin was *not*a preferred creditor, and the lien of his attachment was dissolved by Wm. Price, Jr. the preferred creditor, becoming bail for Lothrop. Included in the assigned property, was a certain town lot and store houses, adjoining “Lothrop’s Wharf,” and known upon the old plat of Gillon’s lands, as Nos. 8 and 9, and on the more recent plat of Edward K White, Surveyor, by the letters A. B. C. D. *One undivided moiety,*however, of this lot, had been, in 1809, mortgaged by Lothrop to the Bank of South Carolina, and passed to his assignee, subject to that incumbrance. On the 30th *413June, 1826, the master in equity, by virtue of a decree of foreclosure, in behalf of the Bank of South Carolina, sold and subsequently conveyed to Wm. Price, Jr. the *undivided moiety*which had been mortgaged, who thenceforward held the same as his own property. The *other undivided moiety*remained in his possession as assignee of Lothrop, until his death in 1831, intestate, wdien the legal title descended to his heirs or heir at law. William Price, Jr. left surviving him, his widow Eliza Price, and five minor children, the eldest being a daughter, (now Mrs. Too-mer) at that time about thirteen years old.

They are all parties defendants to this bill. James Adger was duly appointed administrator of the estate of Price, and as such, undertook to administer the personalty belonging to the assigned estate of Lothrop. The Teal estate descended as above stated.

During his lifetime, William Price, Jr. had mortgaged to the Bank of South Carolina the *undivided moiety*of the town lot *which he had purchased*at the sale of the master aforesaid, and on the 2d July, 1832, by virtue of a- decree of foreclosure against his administrator and heirs at law, James W. Gray, Esq., Commissioner in Equity, sold and conveyed *that*undivided moiety to Mrs. Eliza Price, who retained possession of the *whole lot*until the conveyance to James Lamb, Esq.

The bill in this case was filed on the-6th day of March, 1845, by Robert Martin, the judgment creditor of Lothrop, against James Adger, administrator, Eliza Price, the widow, and the heirs at law of William Price, Jr., the assignee of Lothrop, for an account and administration of the assigned assets and estate of Lothrop. He claims the said undivided moiety of the town lot and the rents and profits thereof, as a part of the assigned estate and subject to his debt, and prays that the same may be sold for the payment thereof, or that the sale of the same to Mr. Lamb be confirmed, and his bond given for the purchase money to Mrs. Price, may be applied for that purpose. The bill alleges that all knowledge of this moiety lot, and of its being a part of Lothrop’s assigned estate, had been *concealed*from the complainant by the assignee Price, in his lifetime, and by his widow and heirs since his death, who *“*without regard to their duties as trustees, used the said undivided moiety as their own.”- That he was ignorant of his rights, and did not discover the same, and the *unfair advantage*taken of him by the defendants, until after the 29th September, 1842, at which time the title to said lot became the *414subject of litigation in this court, between James Lamb, the purchaser, (who is also a party defendant in this cause) and the said Eliza Price. The bill is sworn to in the usual form.

James Adger, the administrator, answered, admitting a balance of cash in his hands, belonging to the assigned estate, of $1371, (the greater portion of which has been in his hands since 1835,) and disclaiming all knowledge of the lot in question being the assigned estate of Lothrop.

The complainant, at the hearing, claimed and urged that Mr. Adger is chargeable with interest on the amount in his hands, unless he could discharge himself by shewing that he had notified the creditors of Lothrop to come in and receive the same, or at least, that he had kept the fund separate and distinct, and had not suffered it to be mixed and used with his own in his business.

Mrs. Price answered, setting out the title of her brother, Samuel H. Lothrop, to said lot; admitting the assignment of Lothrop to her husband, and that he took possession of the property, and acted under the assignment till his death, in 1831, without making any conveyance of the *undivided moiety*which still remained in his possession. She also admitted that it *was not conveyed*to him by the master’s deed of 1827. Denying that she ever acted or claimed to act under the assignment of S. H. Lothrop, but, on the contrary, refused to have any thing to do with it. She further claimed, that she had long since bought and paid for the lot, and held the same as a *bona fide*purchaser, under a sale and conveyance in fee, from James W. Gray, Esq. Commissioner in Equity, bearing date July, 1832, and pleads possession and the *statute of*limitation, in bar to complainant’s claim; aud she set up the decree of the Court of Appeals, in the cause between herself and James Lamb, as confirmatory of her title. Her answer neither admits or denies the allegation of complainant, that he was ignorant that any part of the assigned estate was undisposed of, but denies *all concealment,*either by William Price, Jr. in his lifetime, or by herself, and alleges the charge to be without any foundation ; and in conclusion, says complainant’s claim is old and stale, and not entitled to the relief of this court.

James Lamb and the heirs at law of William Price, answered formally, submitting their rights to the judgment of the court. On reference to James W. Gray, Esq. one of the masters, he reported, “all the proceedings in the case of Eliza Price, com*415plainant, and James Lamb, defendant, in her bill filed in this court, Sep. 29, 1842, as the evidence agreed upon by the Solicitors of all the parties to be admitted in this case.”

Upon this evidence, which was very voluminous, the cause was heard.

This evidence shows that James Lamb, Esq. having agreed to purchase said lot from Mrs. Price, afterwards refused to accept the title tendered; under advice of counsel, that Mrs. Price had a right to convey *no more than one undivided moiety.*She never *•pretended*to produce *or have*any paper title, but relied upon her adverse possession as a good and sufficient title, and thereupon filed her bill to compel a specific performance against James Lamb. That cause was heard on circuit, before Chancellor Johnson, at Charleston, February, 1843, who dismissed the bill with costs, upon the express ground, that Mrs. Piice could not claim the benefit of adverse possession and the statute of limita-tious, although the statutory time of possession had expired, because her possession was, under- her husband, a trust for the creditors of Lothrop, who were the parties beneficially interested.

From this decree, an appeal was taken, and on the 3d of February, 1844, the Appeal Cofirt pronounced the following decree.

Dunkin', Ch. The defendant agreed to purchase from ^the heirs of William Price, the premises designated as Price’s Wharf, for $47,000. Some difficulty arose as to the title to a small portion of the premises, estimated to be worth $3,000. It was agreed that the bond of the purchaser, for this sum, should be withheld, until the complainant should make and tender a good title to this portion of the premises. The contract was made in •November, 1841. The defendant took possession of this portion, under a lease from the complainant, and of the residue under his purchase.

The complainant insisted in her bill, that she had since tendered a good title for this portion of the premises, and she relied on her adverse possession for 'more, than ten years prior to the period of tendering the conveyance. *The Chancellor who heard the*cause, *was of*opinion, *that under the circumstances, the possession of the complainant could not be regarded as adverse, .and this court inclines to the same opinion.*But on looking into the proceedings to which the master refers in his report on jthe title, the court is, by no means, satisfied that the complain*416ant had not a *good marketable paper title.*They have been unable, however, to procure a statement of the proceedings under which the complainant purchased the property at the master’s sales, or a copy of the master’s conveyance to her under those sales.

In an ordinary case, it might be sufficient to *affirm the decree of the*Chancellor, *dismissing the complainants bill.*But both parties are anxious to complete the contract, if it can be carried into effect safely. The court has, therefore, determined to retain the case, and in the meantime, direct the master to amend his report, by setting forth specially the proceedings under which he made sale of the premises, together with a copy of his conveyance to the complainant, Mrs. Price, with leave to report any additional special matter; and it is so ordered and decreed.

Johnson and Harper, CC. concurred.

Johnston, Ch. absent at the hearing.

Afterwards the master having made his amended and supplemental report, in conformity with the decree, on the 1st of February, 1845, the Appeal Court made the following decree :

Dunkin, Ch. It appears from the master’s supplemental report, that by his deed of 7th July, 1832, he conveyed certain premises to the complainant, concluding his description as follows: *“ Together with all*Warehouses, t^¡Storehouses, *and other outbuildings, erected or built on the said several lots or parcels of land known by the name of Nichols' Wharf, afterwards Keith’s Wharf, and lately by the name of Lothrop’s Wharf.”*

There can be no doubt from the testimony, especially that of Mr. Kerr and Mr. Adger, that the half lot (about the title *to*which alone any doubt exists) constituted a part of Lothrop’s wharf, and afterwards of Price’s wharf. It has already been decided, that the fee vested in Price, the intestate, either as purchaser, under the master’s sales in 1827, or as assignee of Lothrop.

In the proceedings under which the complainant purchased, the administrator of William Price, and all his heirs at law, were parties. From the date of the conveyance, she and the defendant, as her vendee, have held the exclusive possession of the entire premises, for more than twelve years. We think the description of the deed is sufficient to indicate the character of the possession, as well as its extent.

In the same proceedings of which these constituted a parr, an *417order was made for the creditors of Lothrop to prove their demands, and the residue of the assigned estate, specified in the order, was directed to be sold, and the proceeds paid to the administrator of Wm. Price, for the purpose of being applied to the uses of the assignment.

Under the testimony now submitted to the Court, we are of opinion that the title tendered by the complainant was sufficient under the terms of the agreement, recited in the pleadings.

It is ordered and decreed, that, on receiving the title to the moiety of the lot, which has been heretofore tendered, the defendant execute and deliver to the complainant his bond, as stipulated in the agreement dated 1st Januáry, 1842. Costs to be paid by the parties.

Johnston and Harper, CC., concurring.

The deed of 1822, to Mrs. Price from James W. Gray, Esq. to which this appeal decree refers, is set forth at large in the evidence, but upon the face of said deed it appeared the words extracted and quoted do not apply to or form any part of the conveyance of the *lot in*question, but that one undivided moiety *only*of said lot was specially conveyed and described in a subsequent and separate clause and part of the deed in the words following, viz; “ All that undivided moiety or half part of all that town lot situated in Charleston, measuring and containing in front southwardly on a street leading from East Bay-street, to the head of the said Lothrop’s, late Price’s wharf, about fifty feet, and the same number of feet on the back line, and in depth about seventy-five feet, more or less, butting and bounding to the south on the street or passage aforesaid; to the north on lands now or late of Theodore Gaillard ; to the east on part *of wharf,*and to the west on buildings of Lefevre.”

The other undivided moiety, *which is now in*question, was not conveyed. Various proceedings in Chancery in reference to the estates of Lothrop and Price were set forth in the evidence, either in part or whole. But none of them contain any *reference*to this part of the assigned estate of Lothrop.

The preferred creditors of Lothrop were not before the Court, and they were in no wise referred to, because *they had all been long since paid in full.*

It was not claimed on the part of Mrs. Price, that she had discharged the trusts of her brother’s assignment, but the contrary ; she denied she ever was trustee; no evidence was offered, or before the Court, to show that- the trusts of the assignment had been *418executed, though it appeared that an order had been entered to call in the creditors of Lothrop, and to authorize the administrator of Price and the master in Equity, to sell and convey such of his assigned estate as had been brought to the view of the Court.

No report or decree consequent upon these orders was included in the evidence reported by the msister.

It appeared by the testimony of James Adger, Esq., who was the agent of Mrs. Price till 1836, “ that soon after Mrs. Price purchased the wharf in July, 1832, and which he bid in for her at the sale, he went on the wharf to do business, and that *Patrick McOwen told*him, *that one half of the large brick store next to Mr. McNellage*[on lot A. B. C. D.J *belonged to the estate of*S. H. Lothrop; and he thinks that in consequence of this information from McOwen, that he *returned the said 'property as belonging to Lothrop''s estate*for one or two years ; that McOwen was calculating that his wife had a right to part of that store. McOwen married Lothrop’s sister.” This moiety had been the property of Seth Lothrop, who was the father of S. H. Lothrop, Mrs. Price and Mrs. McOwen ; after his death, upon settlement of his estate it became, in 1816, the property of S. H. Lothrop.

On the part of the defendant it was urged at the hearing, that the decree between Price and Lamb was conclusive of Mrs. Price’s title; that complainant’s claim was old and stale, and that iter possession had been adverse tor more than ten years, and she was entitled to the benefit of the statute of limitations in bar.

The complainant insisted that she had no paper title, had never purchased or pretended to purchase or pay one cent for the undivided moiqty ; that he was not a party to the decree in Price vs. Lamb ; that said decree, upon a mere comparison with the title deed upon which it was founded, clearly appeared to be a misconception and erroneous, but offered to rest his cause upon it, and if his Honor,upon an inspection, should notbe satisfied of his error in that decree, to admit that he had no case deserving the favorable consideration of the Court.

He insisted that the statute of limitations could not run in favor of the defendant, and that her possession could notbe deemed adverse, because, upon the death of Wm. Price, Jr., the original trustee, the legal estate descended either at *common law*to the heir at law, his eldest son, or under our statute of distributions to his widow and children, who, in either case, became seized in trust for the creditors of Lothrop.

*419If the legal estate did descend to the heir at law, then, he was not only a minor, and could not be barred by the statute, but, from the date of Mrs. Price’s purchase of one moiety, the heir at law (the trustee) and herself were tenants in common of the whole, and her possession was in support of the common title, and not adverse to it. There was no proof or pretence of an *ouster,*and without it her possession could not be adverse to her co-tenant.

If, on the other hand, the legal estate descended under the statute of distributions, then Mrs. Price and her minor children took as trustees, and she being one of several trustees, the statute of limitations could not run in her favor against them, for a double reason — first, because they were her co-trustees and co-tenants; and secondly, they were all minors. But if such a thing were possible, still the statute of limitations could not avail her against her *cestui que trust.*This was a direct technical trust, which she had never executed or repudiated, but *had concealed,*and from which she had never been discharged ; and the concealment of the property, and the trust that attended it, was a fraud, which the statute would not aid. In fact, if she was not the trus-teee, the minor *heir at law*was, and she could not bar him, because of his minority, and being also her co-tenant in common. If she was a trustee, then her minor children were her co-trustees, and for that reason, and because they were minors,- the statute would not aid her to bar them. Ifshewasnota trustee, she could not bar the *cestui que trust,*without barring the trustee; if she was a trustee, the statute will not run in her favor, and especially as there was a fraudulent concealment only recently discovered.

*The Chancellor.*On the 12th September, 1825, the late Samuel H. Lothrop made an assignment of certain property, specified in a schedule, for the benefit of his. creditors. There were preferred creditors, considerable both in number'and amount; but after payment of these, the surplus was to be distributed among his other creditors, rateably, in proportion to the amount of their demands. Within this latter class the complainant falls. William Price, Jr., since deceased, was the assignee of Samuel H. Lothrop. The assignee died in May, 1831, intestate. The defendant, James Adger, administered on his estate, and the other defendants are his heirs at law at law, and James Lamb, Esq.

The allegation is, that the complainant obtained a judgment against Lothrop in 1827, which is yet unsatisfied; that the trusts *420of the assignment have never been fulfilled ; that the defendant, James Adger, has received a portion of the assigned estate, for which he has not accounted, and that a part of the real estate assigned, has been sold by the other defendant, Eliza Price, who is about to receive the proceeds of sale from the purchaser, James Lamb, who is, therefore, also made a party defendant. The prayer of the bill is, for an account, and that the debt of the complainant may be paid.

It may be at well, first to consider the, case of the defendant, James Adger. His intestate, Price, had acted as assignee of Lo-throp, for about six years prior to his decease. He was also a preferred creditor, provision being made by the assignment for the payment of all sums which Price then was, or might hereafter be responsible for, as endorser of his notes, or as security to any other obligation of the assignor, Lothrop. In the answer of Mr. Adger, he states, that finding the personal estate of Price insufficient to pay his debts, and “ that the affairs of the assigned estate of Lothrop were not altogether settled,” he, on the 24th of January, 1832, filed a bill against the widow and children of his intestate, praying a sale of his real estate for the payment of his debts, and also praying the sale of a house and lot in Cheraw, being part of the real estate specified in Lothrop’s assignment, “ in order finally to close the affairs of the assigned estate of Lo-throp.”

On reference to the proceeding, thus made part of the defendant’s answer, it appears that an order was made in the cause for the creditors of Lothrop to prove their demands, and that the complainant might contract to sell the premises in Cheraw, belonging to the assigned estate of Lothrop, deceased, and that the commissioner should execute a title to the purchaser, “paying the proceeds of sale to this complainant, on account of the assigned estate of Samuel H. Lothrop.”

The answer of the defendant, James Adger, further states, that the house and lot in Cheraw were never sold; that the house was since burnt down, and that some rents, received by him, together with the sale of a negro, and a dividend on Mr. Lazarus’ estate, constitute all the funds of Lothrop’s assigned estate, which have ever come to his hands, and submits his readiness to account.

The claim against Mrs. Eliza Price, is founded on the proposition, that the premises conveyed by her to her co-defendant, James Lamb, were included in the assignment of Lothrop to *421Price, and that a portion of these premises, to wit, a moiety of lots Numbers 8 and 9, still constitutes a part of the assigned estate, for the proceeds of which Mrs. Price was responsible to the creditors of Lothrop.

The deed of 1825 conveys to Price all the assignor’s estate, “ named in the schedule A,” annexed to and forming part of the deed. The schedule describes the premises as “ one wharf, bounded to the north by a wharf belonging to George Chisolm, and on the south by a wharf belonging to George Gibbs tfcSon, running east and west, with twelve brick stores thereon.” This is the whole of the description ; and, without more, it is quite clear that no title is made out to a moiety of lots Numbers 8 and 9. But it appears from the master’s report, in Price vs. Lamb, that the premises, sold to Mr. Lamb, consisted of lots Numbers 10, 11, and 16, and lots Numbers 8 and 9 ; that on the 15th of August, 1809, Samuel H. Lothrop was the owner in fee of lots Numbers 10, 11, and 16, and of a moiety of lots Numbers 8 and 9 ; and that on the 16th of August, 1809, he mortgaged the premises, which he owned, to the Bank of South-Carolina. In August, 1816, Samuel H. Lothrop became the owner of the other moiety of lots Numbers. 8 and 9. In the summer of 1824, he erect.ed a new brick store on lots Numbers 8 and 9. Previous to that time, the ground on which the new store stands, had been the yard of the old store. The new store was No. 1 in the twelve stores on the wharf, which consisted of four stores on the north side, and eight on the south side. “ It was always used,” says the master, “ by Mr. Samuel H. Lothrop, as a part of the wharf property, and the rates for storage in it brought into the books of the wharf;” and that “ it was necessary to make up the number of twelve brick stores mentioned in the schedule to the assignment.” Under this testimony the complainant may well insist, that lots Numbers 8 and 9, as well as lots Nos. 10, 11, and 16, passed by the description. Whether lots Numbers 8 and 9 had originally constituted part of the wharf was not very material. All belonged to Samuel H. Lothrop, and he, by his improvements on them, and connecting these improvements with the other store-houses on his wharf, had made it part of the same. When he speaks, then, in the schedule of the wharf, “ with the stores thereon erected,” it is plain that he regarded the stores as erected.on the wharf, and, of course, that the lots, on which they stood, were part of his wharf. The wharf, called Lothrop’s Wharf, with the buildings on the wharf, were then, in 1825, in *422possession of William Price, under the assignment of Samuel H. Lothrop. In August, 1826, the Bank of South-Carolina filed a bill against Samuel H. Lothrop, and his assignee, William Price, junior, to foreclose the mortgage executed by Lothrop, in August, 1809. Here the difficulty commences, and it is the only difficulty in the case. When Lothrop executed the mortgage in 1809, he owned only a moiety of lots Numbers 8 and 9, and he included in his conveyance Numbers 10, 11, and 16, and, of course, only a moiety of 8 and 9. Subsequently, he purchased at sheriff’s sales the other moiety, which belonged to Seth Lo-throp, deceased. In 1824, as has been said, he erected a brick store on lots Numbers 8 and 9, constituting No. 1 in his range of stores, which form part of Lothrop’s wharf. In preparing the bill for foreclosure, the description is taken by the solicitor from the mortgage of 1809. No notice is taken in the pleadings, either on the part of plaintiff or defendant, of any tenancy in common of this portion of the premises. In February, 1827, a sale was made by the master, under the decree of foreclosure, and William Price, junior, became the purchaser. He, at the same time, re-mortgaged the property to the Bank of South-Carolina.

The store on lots Numbers 8 and 9, continued, says the master, to be regarded and used as part of the wharf property when William Price, junior, purchased, and he so used it until his death, in May, 1881. Price died insolvent. In March, 1832, the Bank of South-Carolina filed a bill against James Adger, his administrator, and against Eliza Price and the other heirs at law of William Price, junior, praying a foreclosure of the mortgage, and payment from his general assets, of any deficiency. In January, 1832, the administrator (as has been heretofore stated,) had already preferred his bill, praying, among other things, the sale of the real estate of his intestate, Price, and also for a final settlement of the assigned estate of Lothrop. In the answer, filed by the administrator to the bill of the Bank of South-Carolina, reference is specially made to the embarrassment arising from the affairs of Lothrop’s assigned estate, and the aid and direction of the court are craved by the administrator. The suits were conducted together. In order to a final adjustment, the creditors of Lothrop were called in. It was insisted, in the argument on the part of the complainant, that the order for calling in the creditors of Lothrop had never been heard of until the appeal decree in *Price*vs. *Lamb,*pronounced in February, 1845. *423It is a misapprehension. No one was better acquainted with the order than the complainant himself. He appeared before the master under the notice, established his debt, and became party to the decree, pronounced by Chancellor Johnston, in May, 1834, and so it appears from the records of the court.

The report of Mr. Gray, filed on the 24th of May, 1834, and entitled in the case of the *Bank of South-Carolina, for themselves and Creditors*vs. *Administrator of William Price, junior, and others,*was confirmed by the decree of Chancellor Johnston. The administrator and heirs of Price, the creditors of Price, and the creditors of Samuel H. Lothrop, were parties in the proceedings. The object was to marshal the assets, real and personal, and to pay the debts of both estates, so far as the assets would extend. The report sets forth, at full length, of what the estate of Price consisted, and what were the remaining assets of Lothrop’s assigned estate. The latter are specified as being “ a house and lot in Cheraw, negro Prince, one-third of Whan, (negro,) and $391.90, in the hands of the administrator of Price.” ' Notice was given to the creditors, both of Price and of Lothrop, through the Charleston Courier, on the 23d of May, 1832. The master further reports, that in obedience to former orders, and after due notice, he, on the 2d of July, 1832, sold “ all that property, known as Price’s Wharf, situated in Charleston, to Mrs. Eliza Price, for the sum of twenty-two thousand five hundred dollars, and that” (she having complied with the terms of sale,) “he had made her a title.”

Among the creditors of Samuel H. Lothrop, reported by the master as having “ rendered statements of their demands, and exhibited proofs of their. correctness,” is the complainant, as a judgment creditor of Lothrop, to the amount of six thousand five hundred and twenty-three dollars and forty-nine cents.

Mr, Adger was the person who bid off the property at the master’s sales, for Mrs. Price. It cannot be doubted, from his testimony, and that of Mr. Ker, (who had been wharfinger for about twelve years,) that the premises, now in question, were used and treated as part, first, of Lothrop’s, and afterwards Price’s Wharf. She (Mrs. Price,) took and held possession, and has received the rents of store No. 1, in the same manner as of the other stores, (by herself, or those claiming under her,) from her purchase in July, 1832, until the filing of this bill, on the 6th day of March, 1845.

It is said, however, and it is truly said, that, although the *424master’s conveyance to Mrs. Price, of July, 1832, describes Numbers 10, 11, and 16, together with the ware-houses, store-houses, and other out-buildings, erected thereon, as formerly known by the name of Nichols’, afterwards Keith’s Wharf, and lately by the name of Lothrop’s Wharf, he conveys, also, a moiety of the lots Numbers 8 and 9,- and that this excludes the assumption that the other moiety passed. The inference is, that, at that time, and now, the other moiety was part of Lothrop’s assigned estate.

When it is proved that, from 1824, certainly, these premises had been used and considered as part of Lothrop’s, and after-wards of Price’s Wharf, that in the proceedings under which the sale was made to Mrs. Price, and to which the creditors of Lo-throp were parties, it was assumed, if not adjudged, that no part of these premises constituted any portion of Lothrop’s assigned estate, and they (the creditors,) interposed no claim; that the master, according to his report, sold to Mrs. Price *“*all that property known as Price’s Wharf, situate in Charleston,” and that she was put in possession of these premises, as part of her purchase, the court is of opinion that it would be a fraud, on the part of the creditors of Lothrop, to avail themselves of this defective conveyance. The deed of the master is their deed, and so, on its face, it purports to be. There can be no doubt whatever that these premises were considered as part of Price’s Wharf. *They*sold, and *she*purchased, “all that property known as Price’s Wharf,” and she was entitled to all proper deeds and assurances from the parties to the proceedings.

But it is not necessary to rest the defendant’s right to protection on this footing. In the case of *Price*vs. *Lamb,*the previous proceedings in the several causes were not fully developed. Whatever may have been the fiduciary relations between the defendant, Eliza Price, and the creditors of Lothrop, anterior to the proceedings of 1832, the court is of opinion that, with these proceedings and the decree of 1834, the trust ceased. It ceased, at least, for the purposes of this case. It is well settled, that when a trustee does an act purporting to put an end to his trust, the statute of limitations commences its operation. *Starke*vs. *Starke,*Car. L. Journ. 503. The character of the proceedings of 1832, necessarily involved the inquiry as to what constituted the assigned estate of Lothrop. The legal title of the real estate was in the heirs of Price, of the personalty in Adger, his administrator. In order to enable the court to marshal the assets, *425It was the duty of the parties to surrender up the estate, to be sold by the officer of the court. Accordingly, the real estate in Cheraw, and the personalty in Charleston, were reported to the court, as assets of Lothrop’s estate, were ordered to be' sold by the master, and the fund to be distributed, according to the decree. It is difficult to maintain, that( these were not acts purporting to be a determination of the trust, as between the heirs of' Price and the creditors of Lothrop. ' The general doctrine is very fully discussed in *Kane vs.-Bloodgood, 7*Johns. Ch. 90, and in *Watkins*vs. *Willison,*3 Peters, 41. In the former case, Chancellor Kent recognises the principle, that if- a trust subsisted, so that the trustee-could recover as havirig the legal estate, it would follow, that the right of the *cestui que*trust,-as against the trustee, could not be barred. “ But,” continues he, “ supposing the trustee was to -deny the right of the. *cestui que trust,*and assume absolute ownership, is there any case in equity that would allow the latter his remedy beyond the period limited for the recovery of legal estates at law?. So long as the trust is a subsisting one, and admitted by the act or declaration of ’the parties, no doubt the statute does not affect it; but when such transactions take place between trustee and *cestui que trust,-*as would, in the case of tenants in common, amount to an ouster of one of them by the other, I can hardly suppose that a Court of Equity would consider length of time afterwards as of no consequence. There is no good reason why the statute of limitations should not apply to such a case,' .as well as to cases of constructive trust, and to cases of detected fraud, and to all other cases in which the statute is assumed as a rule of decision.” Mrs. Price has been in exclusive possession and enjoyment of these premises for thirteen years since the fiduciary character thus terminated, and the complainant cannot be permitted now to disturb that possession, or question its effect.

If there had been any fraud, on the part of the trustee, the *cestui que trust*might be entitled to relief, but on a different principle. But the defendant has neither done nor omitted any act, to which fraud could be imputed. The complainant enjoyed all the means of information in 1832, which he has no,w. The deeds were all on record ; and if any defect existed, it was as well known to the complainant as to the defendant. There is no tes-mony whatever in the case, which would warrant the suspicion that she knew any thing which she did not disclose, or which was not as well known to him as to her.

*426If it were necessary for the decision of the case, there Is ranch ground for declaring that, as between these parties, the whole matter is *res adjudicata,*by the proceedings of 1832 and 1834» What a party has had once the opportunity to litigate, he shall not be permitted, afterwards, to call in question. *3PDowell*vs. *M’Dowell,*1 Bail. Eq. 324.

The decree of 1834 establishes the order and manner in which the funds of the assigned estate of Lothrop shall be distributed. It is manifest that they" were entirely inadequate to discharge the preferred debts, as established before the master, and that nothing would remain for the general creditors. It is only necessary to1 direct, and it is hereby Ordered and Decreed, that the funds in the hands of the defendant, James Adger, be paid to the preferred creditors of Lothrop,. as specified in the schedule to the piaster’s report of May, 1834.

As to the defendants, Eliza Price, and the other heirs of William Price, junior, and the defendant, James Lamb, it is Ordered and Decreed, that the bill be dismissed with costs.

From this decree an appeal was taken,on the following grounds:

1. Because the circuit decree is founded upon evidence not before the court at the hearing, and of which the complainant had no notice or the opportunity of reply; and if the introduction of the same after the hearing, was deemed essential to the' justice of the case, it should have been introduced only upon a rehearing ordered.

2. Because as to the fund in Mr. Adger’s hands, the circuit decree erroneously ordered the same to be paid to the preferred creditors of Lothrop, who were not before the court, and in fact there are no such creditors or claimants, all having long since been paid, and more than paid, in full, which the complainant would have shown, had the evidence relied upon in the decree been before the court at the hearing.

3. Because Mr. Adger is liable for interest on the funds in his hands, and withheld from the creditors of Lothrop, and his account should have been referred to the master to state the same, with interest, in conformity with the established practice of this court.

4. Because as to Mrs. Price, and the undivided moiety of the town lot in question, the same was held by William Price, Jr., at the time of his death, under a direct, technical, continuing trust, exempt from bar by the statute of limitations ; and if, upon his *427death, the legal estate and trust descended to his widow, as one of his heirs, and not to his eldest son as *heir at*law, then his minor children were her co-trustees, and she is not entitled to the benefit of the statute of limitations against them, or the *cestui qiie trust,*who is entitled to all their-rights. And there was no evidence before the court to show that she or they had, within the statutory period, either repudiated, denied, executed or been discharged from the trust.

5. Because if, upon the death of her husband, the legal estate and trust did not descend to her, but to the *heir at law,*then her possession of the whole lot under her title to one undivided moiety, was as tenant in common with the trustee, a minor and exempt from bar by the statute of limitations ; and there was no proof of an *ouster.*

*6.*Because her *concealment*of the trust property was *& fraud,*and the statute of limitations could only run against the complainant from the date of the *discovery*of the fraud, which is within the statutory period.

7. Because Mrs. Price never had any *11 paper title,”*to more than one undivided moiety, and never purchased, bargained for, or paid for the other moiety, — and the parol evidence of Mr. Ker and Mr. Adger, referred to in the decree, is in contradiction of the deed, and is only the evidence of what her agents, acting under her commands, did without being brought to the notice of the complainant.

*J B. Campbell, foi appellant.*

If this decree shall be sustained, Mrs. Price will be essentially benefitted, and the complainant injured, by the injustice occasioned, at her instance, by the oversights, delays and mistakes of this court. The plainest principles of justice, as well as the highest judicial authorities, unite to forbid this. “If,” says Lord Eldon, “ there be a principle on which courts of justice ought to act without scruple, it is this — to relieve against the injustice occasioned by their own acts or oversights, conjmitted at the instance of the party against whom the relief is sought.” Lord Redesdale, in a great and leading case, lays down the same rule, and adopts the very language of Lord Eldon as his own. (6 Yes. 73 ; 1 Sch. and Lef. 434.)

Mrs. Price falls strictly within the rule. She has been driven to rely upon decrees hitherto procured, at her instance, under misapprehensions apparent upon the face of them. This decree *428gives ber the full benefit of the lapse of time gained to her by the delays of the Court, ending only in error and mistake. It would be strange if a Court of Equity, whose peculiar jurisdiction it is to correct and relieve against the errors, mistakes and accidents of others, should hesitate to correct its own oversights. The title to the property in question has been under the consideration of this Court since September, 1842. Mrs. Price then filed her bill, to compel her vendee, James Lamb, to accept her title, and complete his purchase contract with her. She, at that time, pretended to no title except one acquired by the statute of limitations under an adverse possession. She set up no *upaper title.”*

The Circuit Court, Chancellor Johnson presiding, February term, 1843, decreed that her possession had never been adverse; that she had no title in her own right, and eould acquire none under the statute of limitations ; because she was a trustee, and her possession a trust for the benefit of the creditors of her brother, Samuel H. Lothrop. The cause came up on appeal. This court, after the lapse of one year, in February, 1844, expressed its concurrence in the circuit opinion, but instead of confirming that decree, retained the cause, and contented itself with ordering the master to report, as farther evidence, the equity proceedings and deeds under which she acquired the wharf property, in the hope of finding she had, what she did not profess to have, “ *a good marketable paper title.”*There could have been no error; it would have been at least safe, having formed an opinion upon the case made before them, if the court had done what, in the language of the decree, *i:inan ordinary*case, *might be sufficient*— affirmed *the decree of the*Chancellor, *dismissing the complainant’s bill.”*It is always safe for courts to decide causes upon the evidence brought to their view. It is the duty of the Solicitor to prepare and fully develope his case; if he fails to do so, it may be the misfortune of the client, but not the error of the court. It would be burdensome to the bench, if it were a part of its duty to prepare, as well as adjudicate causes. It would be difficult, as well as unsafe, to unite the duty of the advocate to the character of the perfect judge.

In conformity with the direction of the decree, the master made his supplemental report, and at the end of another year, this court made its final decree, and adjudged that Mrs. Price had in fact the *“good marketable paper title”*Reasons were assigned for this decree. The deed was referred to — the part *429of it which was deemed her “ good paper title” was specially cited hut on examination, did not confirm the conclusions of the decree. Exactly the reverse. The deed excluded the moiety lot in dispute. It did not, even by implication, convey it to Mrs. Price. It is a canon in the construction of written instruments, that a particular specification will exclude what is not specified. (Chancellor Kent, 1 Johns. Chan. Reps. 183.) It was too clear to be doubted. It would be disrespectful to suppose this court, having a full year for consideration and advisement, would adjudicate upon the legal effect of a deed, without reading the whole of it. But if the question were open for the expression of an opinion, certainly no lawyer would say, *having read the deed*relied upon in the appeal decree, that it included any *“paper*title” or conveyance to Mrs. Price or any one else, of more than one moiety of the lot, and *that*moiety there is no dispute about. The decree ordered the purchaser to accept the title tendered, and comply with his part of the purchase contract. This decree was promptly enforced; and under the stringent process of a contempt of court, Mr. Lamb, a gentleman of the highest consideration'for intelligence, standing and probity, was attached (his person arrested) and compelled to pay for property, the title to which, it was manifest, was a mere nullity — the judicial offspring of near three years of judicial parturition.

A man of Mr. Lamb’s intelligence did not require the aid of counsel to see this. The unsatisfied creditors of Lothrop, too, could see that nothing had been settled by a judgment plainly founded in error. They were not parties to the suit; therefore, technically, not bound by the result. The complainant is one of these creditors, and immediately filed his bill. Mrs. Price having obtained the decree against Mr. Lamb, *now*rested her rights upon that. The court had found for her “ *a good marketable paper title"*and she claimed, as she was well entitled, all the benefits of it. She stood upon the deliberate opinion of the highest court. Upon this ground the case was argued, and it rested upon it. True, it was objected that the complainant’s debt was old and stale. But his debt was a judgment debt, and within the presumptive period of twenty years, and there was an end of the objection.. It had been settled by the decree of Chancellor Johnson, and the concurrent opinion of this court, that Mrs. Price’s possession had not been adverse, and the statute of limitations could not run in her favor. It had been assumed that she was a trustee, and her possession a trust for the *430creditors of Lothrop. She denied she had ever held as trustee. If this were true, it could not aid her, because if, from the death of her husband, she was *not a*trustee, then the *heir at law,*at common law, *was;*a minor, and from the date of her purchase, her co-tenant in common. As her *co-tenant*she could not bar him without an *ouster.*As a minor, he was exempt from the operation of the statute. She never pretended that she had executed the trust, or been discharged. She denied she ever was trustee.

The decree, which is the subject of this appeal, then followed. It substantially admits that the decree in *Price vs. Lamb*could not be sustained. It certainly does not rely upon it, and passes it over in silence. The “ *good marketable paper*title” could nowhere be found. It had been diligently sought for ; it could not be discovered, neither could it be *created by*the “ Delphic lines” of the appeal decree. A new field was now to be explored, or the complainant must have his decree. Mrs. Frice could not acquire a statutory title in 1843,1844, and in 1845. The “paper title” idea was exploded, and must be given up. It was then discovered, by diligent search, among the records of the Register’s office, that in May, 1834, such proceedings had taken place in the case of *“ The Bank of South Carolina vs. James Adger et al.”*as would, upon ex-parte extracts, raise a presumption that Mrs. Price’s fiduciary relations, as to this property, had terminated at that time. Upon these extracts, collected extra-judicially, the reasoning and conclusions of the decree rely. It was held that from the date of Mr. Gray’s report, filed May 24th,. 1834, and the circuit decree of the *same*day, made “ by consent,” not of the proving creditors of Lothrop, who were not heard in the premises, but by *consent*of the Bank of South Carolina, of Mr. Adger and Mrs. Price, — the statute began to run in favor of Mrs. Price. Assuming, then, for our present purpose, (and it is a mere assumption,) that the present decree rests upon evidence properly before the court, or that the evidence is sufficient to support the conclusions drawn from it, then, from May 24, 1834, to the corresponding day of 1844, the statutory title would be perfected by adverse possession. Now we say, that if such a title has been perfected, .and is binding against the complainant and other creditors of Lothrop, in favor of Mrs. Price, it has been done by the unnecessary delays and judicial errors of this court. Delays resting, top, upon no other or better excuse than that “ both parties” (Price *vs. Lamb,') “*were *431anxious to Complete their contract.” This court, although expressing a concurrent opinion with the circuit decree of Chancellor Johnson, where “ the creditors of Lothrop” were declared to be the “parties in reality beneficially interested,” withheld a final decision for one whole year, in the hope of obtaining evidence more favorable to the *anxieties*of the parties before them. The creditors of Lothrop were not parties, but their interests were under the view of the court. The appeal decree of 1844, retaining the cause for further evidence, was filed near four months before the expiration of the statutory time, supposing it to have commenced May 24, 1834. If this court had then pursued that course which, in the language of the decree, “ *might he sufficient in an ordinary case,”*and made their decree final, the creditors of Lothrop would now have no cause of complaint. And why was this not done ? What was there in this case to take it out of the rules of ordinary cases *1*The decree speaks for itself. “In an ordinary case, it might be sufficient to affirm the decree of the Chancellor dismissing the complainant’s bill ; but *both parties are anxious*to complete the contract, if it can be carried into effect safely. The court has *therefore*determined to retain the case,” *&c. (Price vs.*Lamb, appeal decree of 1844.) Had this then been an *ordinary case,*the circuit decree might have been affirmed. The reason assigned for not doing this, is, “ *both parties*were *anxious*to complete their purchase ;” tut there were other parties within the view of'the court who were “ in reality the parties beneficially interested.” They were the creditors of Lothrop. With this knowledg there would have been no injustice done if the court had, while retaining the case for the coming in of the “ *good marketable paper title,"*ordered these creditors to be made parties to the bill, and thus given them a right to be heard before the statute of limitation had run its full course. The familiar practice of the court would warrant this. “ There can be no doubt the court, at any stage of a case, upon seeing that sufficient parties, are not before it, have a right to arrest the case, and direct the bill to be amended, so as to bring in all the parties in interest.” (1 Hill’s Chan. Reports, 53.) It is the duty of the court to do this upon its own motion ; “ equity in all cases delights to do complete justice, and not by halves.” (3 Peere Wms. 333.) “ It is a leading principle in courts of equity, that where a decision is made, it shall provide for the rights of all persons whose interests are immediatdly connected with it.” “ The rights of all persons *432interested, must be settled and decided upon, so that the orders of the court may be *safely executed by those who are compelled to obey*them, and future litigation may be prevented.” ' Calvert on Parties irj Eq. 1 Mitford’s Eq. PI. 164 ; Story’s Eq. PI. ch. 4; *Poore vs. Clarice,*2 Atk. 515; *Palle vs.*Clinton, 12 Ves., 58 ; *Cockburn vs. Thompson,*16 Vesey, 25 ; 2 Story’s Equity, 742. The court will not wait for the motion of parties already before it. It may be their interest..to exclude the proper party ; such was the case in *Price vs. Lamb,*and the court seems to have seen this when the case was retained upon the ground that “ both parties were anxious to carry their contract- into effect.” But the court also saw that there were other parties (not parties to the bill) who were “ beneficially interested.” Suppose a case. A and B come before the court, asking to complete a contract, touching lands in question. , They are anxious to effect their purpose. The calling in C, a third party, would prevent this, and they avoid making him a party. But the court sees it, and declares that C is “in fact the party beneficially interested,” and that A and B do not in any wise appear entitled to what they' claim. What then is the duty oí the court1? If the uniform action of the greatest judges' and the highest courts which have adorned the administration of equity jurisprudence in England and America were to be relied upon, there would be no doubt. Show me the case, if it can be found, where an English Chancellor, having retained a case for additional testimony in favor of the parties already before him, has not, at the same time, called in parties whom *he saw*were “ in reality beneficially interested.” Would it be doing complete justice ? Would it not be doing justice by much less than halves, to do otherwise ? Yet this court did rule otherwise. . The cause was reserved in aid of the parties before the court. The party, *“*in reality beneficially interested,” was not called in ; at the end.of another year, the statutory period was completed, and, upon *that*lapse of time, *thus*gained, the present decree relies to bar the rights of the complainant. This court is now asked, its former decree being clearly an oversight and erroneous, to bar the,rights of creditors, because, pending its ovvn delays and oversights, “ occasioned at the instance of the party against whom relief is prayed,” sufficient time has elapsed. Is not this an injustice, occasioned by the acts or oversights of the court, contemplated by the rule of equity?. Surely,, if ever there was a case where the rule of Lord Eldon and Lord Redesdale, the highest judicial authority; but *433a rule founded, in fact, in common sense justice, (an authority higher than judicial,) should be applied in full force and vigor, this is such a case.

The position of Mrs. Price is precisely such as to place her within this rule. At her instance, the court has committed an oversight. The effects of it work great injustice ; she is benefited, the complainant is injured, and has brought her into court for relief. This court, under “ a principle on which courts of justice ought to act without scruple,’1’ is bound to give that relief ; if it is refused, she is left in the enjoyment of the property of her late brother, for which she has never paid one dollar, and has, in her own right, no color of title, except under favor of this court; while his creditor, who had intrusted him with the safe-keeping of his property, as a mere bailee, and not as a purchaser, is deprived of his last hope'of payment. If Mrs. Price can successfully resist the complainant’s claim, she will gain what never belonged to her; if she fails, she loses nothing, she only fails to' gain what rightfully belongs to another. How stands the. complainant *1 ,*If he succeeds, he will obtain part payment from his creditor’s property, of a debt contracted by the breach of a sacred fiduciary relation. If he fails, he will be turned out of court with the loss of what honestly belongs to him, having first been invited by a reliance upon the declaration of the court, that he was a party “ in reality *beneficially*interested.” The experiment will not be lost upon ■ him. He will have gained what ought not to be forgotten, the opinion of the court in 1845, that it would be a “ fraud” for the creditors of Lothrop, *then*to avail-themselves of a matter in which, in 1843 and 1844, it was deemed, by the opinion of the very same court, they were “ in reality *beneficially*interested.”

We come now to the consideration of thé several grounds of appeal.

The first ground states that the decree is founded- upon evidence not before the court at the hearing, without notice to the complainant, and to which he had no opportunity of reply ; and he claims to have the same struck out, and the -decree reformed, so as to conform to. the case made by the evidence and pleadings before the Court; or at least,- that a rehearing shall be ordered, and’that he shall have an opportunity of being heard and producing evidence in reply. He claims the right to know, before judgment, upon what evidence his rights are to be adjudicated. The .simple proposition is, that he demands a trial, in the judicial meaning of the term. He thinks this not .unreasonable. ■ If we *434state the facts correctly, they require no comment, and there is ata end of argument; one conclusion only can follow. It is to be hoped the time will never come, when it will be affirmed, and the proposition gravely discussed, that this Court can decide causes upon evidence not before it at the hearing, but the result of researches made afterwards without notice to the parties to be affected. The documents and matter objected to, and denied to be judicially before the Court, are appended to the printed evidence reported by the master and marked “ Appendix A,” pages *22,*23 and 24. They consist of extracts from the report in the case entitled “ The Bank of So. Ca., et al. vs. James Adger, administrator, et alof one of the Schedules (E) to said report; and of the decree *(by consent)*of Chancellor Johnson thereon, *all filed the same day,*May 24th, 1834. These papers were not in evidence at the hearing, and the first knowledge the complainant had of their being used as evidence, was derived from the decree of the Court. They are copied by the Register from records in his office, and these office copies, marked by the Register, “for the Hon. B. F. DuNkin,” were found enclosed in the decree after it was put on file by the Chancellor. They are not included in, or referred to by, the master’s report of evidence, which was, by agreement of the parties, *the' only evidence*upon which they went to trial, and the master so reported. They formed no part of the evidence and proceedings in *Price vs.*Lamb, and they were in no way referred to in the argument or otherwise, at the hearing of this cause. *They were not in evidence.*The accuracy of these statements cannot be doubted, and they can be easily tested by a reference to the records. This is all we know of the mysterious history of this foundling testimony. It is manifest that so much of the decree as declares the possession of Mrs. Price to have been adverse, and so much as orders the funds in Mr. Adger’s hands, to be paid to the *“preferred creditors of*Lothrop,” are conclusions resting entirely upon these “ extracts.” There is, without them, no other ground in the decree, for assuming that Mrs. Price had ever been discharged from her trust, if in fact she ever was a trustee, and in no other way were the preferred creditors ever before the Court.

The second ground demonstrates the propriety of the first. It presents the most conclusive illustration of our position. Relying upon these documents, the chancellor thought it “manifest that Lothrop’s pstate had been entirely inadequate to the payment of his preferred debts as established before the master, and that nothing would *435remain for the general creditors,” and upon this presumption, has actuallly ordered the funds remaining in the hands of Mr. Adger, to be paid to *the preferred*creditors. There could be no more conclusive proof of the danger of assuming to know more of a cause than appears by the evidence before-the Court, than this experiment affords. The Chancellor remarks in his decree that “ in the case of *Price vs. Lamb,*the previous proceedings in the several causes were not fully developed.” This is doubtless correct. But it is just as little to be doubted that they were in evidence, *only so far as they were developed.*But, the complainant could have had no objections to a full and complete developement, and had the learned Chancellor examined the whole proceedings, or if the general creditors had known upon what evidence they were to be excluded, he would at once have been shown, that the preferred creditors had, long since, *been paid in full.*They are entitled to the merit of asking nothing from the Court.- because they were entitled to nothing, and they knew it. They had been paid to the last farthing ; had given their receipts in full nine years before, and were satisfied. The payments had been properly vouched in this Court before the master, and the accounts-certified by him to be correct. The receipts and the master’s certificates, are here before the Court for inspection. We do not offer them in evidence, because it is not the practice of this Coure-sitting in appeals, to allow the introduction of new testimony.But we do urge them as a satisfactory argument against ordering money to be paid to parties'who are not before the Court,- and who do not claim it. If it appeared to the Court that their interests were involved in the issue, it would have been proper to call them in as parties. In *Price vs. Lamb,*the creditors of Lo-throp generally *were*brought to notice, and it was there apparent that they would have been entitled to a decree, had they been before the Court. -But no decree was made in *their*favor. *They*were not even required to be made parties. How does it happen that *they*were so unfortunate ? How, that the *preferred*creditors are so fortunate *1*Under what principle of right or reason will this Court go in search of one class of creditors, and force upon them double payment, while another class is denounced as guilty of *“a fraud”*in asking the aid of this Court ? (Circuit Decree, p. 16.)

If we were at liberty to meet these' *ex parte*extracts by evidence in reply, that part of the decree which assumes that from May 24th, .1834, Mrs. Price’s adverse possession commenced, *436would be found to have, in fact, just as little to stand upon as that part which ordered a *two-fold payment to the preferred-creditors,*oras the decree in' *Price vs. Lamb,*which gave her “a good marketable paper title.” Lord Hardwicke was q. pre-eminent judge. It is no small merit to have the support of his illustrious authority, arid he declares he had found himself, *“ twice in the sanie case in that*difficulty, *in which a Judge will always bring himself, when his curiosity or some better motive disposes Mm to know more of a case than judicially he ought? Rich vs. Jackson,*6 Yesey, p. *334.*— note.

And here we might safely rest our case, and say the facts entitle' us to .all we ask. But We go much further, and insist that-the testimony (admitting it to be before the Court as it stands) and the law, properly applied, cannot sustain the conclusions of the decree. If the Court shall come to the same opinion, then the objection to the evidence will be immaterial ’, without, therefore, waiving that objection, we will examine the case as it appears by the Chancellor’s decree.

The next question in the order of the grounds of appeal is as to the interest on the fund in Mr. Adger’s hands. This fund was received by Mr. Adger, as administrator of Price, who was assignee of Lothrop, and under the sanction and order of this Court. It appears, by the" account, filed with his answer, to have been in his hands now about *ten years.*He does not allege that he has ever notified the complainant or other creditors, or declared any dividend, or taken any steps whatever to discharge himself of the trust. He was a party to the suit in■ which the complainant and others proved their debts. He must then be presumed to have known they were entitled to payment *after the*pieferred creditors, the last of whom he paid himself. He does not allege that he has kept.this fund separate and distinct from his own. It was incumbent upon him to show this, and failing to do so, it must be assumed that he used the fund, or at-least mingled it with his own. Under such circumstances,' and the uniform current of authorities, his liability for interest was not doubted, and it' was not deemed necessary at the circuit hearing to do more than bring the point to the notice of the Court. It was not considered as an open question. In a similar case, Chancellor Kent expressed his surprise “ that the point should be drawn in question, after what had been said and ruled by him, and considering how fully and explicitly the doctrine had been established in the English Chancery:” (4 Johns.'Chan.'Reports, 302.) *437This admonition applies with equal foree in the Courts of this State, and was not lost upon the counsel in this case. Mr. Ad-ger’s liability for interest is as well settled under the uniform decisions of our Courts, as it is in England or New York. But the circuit decree has not taken this view.of the subject, and it is thus made necessary for me to urge this point, which I shall do briefly. What we claim is well and clearly put by Chancellor Kent:

■I'The defendant rendered no sufficient excuse for not distributing this fund. He appears to-have been guilty of negligence, and he does not show, what he did with the fund in the mean time. The *presumption is that he' appropriated it to his own use.*Heis-justly chargeable with interest on'the fund, from the time it tvas converted into cash, and'with the costs of suit. This is the-rule of this Court in'the case of a- negligent trustee.” (1 Johns. Chan. Reports, 84 ; *Gray*vs. Thompson.) ' ,

In England- the doctrine is as -well settled as, any other. *Rat-cliff vs. Graves,*1 Yernon, 196, by Lord Keeper Guilford, in 1683, among the early cases *(also.Leé vs. Lee, 2*Yernon, 648,) ruled it to- be reasonable that executors and trustees in all cases should answer interest if they had used the -money in trade, and that they should not turn trust money to private advantage. To -discharge themselves they must show that they had kept the money by them. The cases of *Newton vs. Bennett,*1 Bro. C. C. 359 ; *Perkins vs. Boynton,*I Bro.- C. C. 375, are by Lord Thur-low, and to the sam'e point. In *Treves vs. Townsend,*Lord Lough-borough said “ the defendant has kept trust money under a trust that he should *not keep it:*Therefore he must pay interest. It is a fraudulent neglect of duty he had undertaken as assignep. The money of a merchant at his banker’s does not lie idle, it,is a part of his stock in trade. 1 was surprised to heár it urged, that the assignees were to make no division or to take an active part in settling the bankrupt’s estate, unless called upon by the creditors. Their only excuse is, that- they could not make a dividend, because they were so . negligent.”' (1 Coxe Chan, 50, and 1 Bro. C. C. 384.) Costs follow of coursé. in all such cases.

And Lord Thurlow, in *Franklin vs: Frith,*,3 Bro. Ci C. 455, said, *“*keeping money at one’s bankers, is no proof that he did not make interest of it; it is in aid of his credit.” See also *Hilliard's*case, 1 Yes. Junr. 84; *Dawson vs. M'asey,*1 Ball and Bea. 231 j and *Bird vs. hockey, 2*Yernon 744; and in *Littlehales vs. Gas-coigne,*3 Bro. C. C. 73. “ If a trustee retain money (unnecessarily,) for any length of time, which, by application to the Court, -or by investing, he might have made productive, he shall be *438charged with interest.” Sir Wm. Grant, in a case where trustees had kept money idle at their bankers, but to a *separate account,*made them not only pay interest, which was scarcely resisted, but *costs,*because the fund being under their control increased their credit. *[Ashburnham vs. Thompson,*13 Vesey, 492.) Lord Eldon went still further, and in a very emphatic manner declaring the rule of the English law in the House of Lords, said “ the *ces-tui que trust*may say he will not take a fixed rate of interest, and require an account and payment of the *actual profits*made by the trustee.” *(Montgomerie vs. Wauchope,*4 Dow. P. R. 151.)

The only doubt in the English authorities thrown upon this general doctrine, is a remark of Lord Hardwicke, in *Child vs. Gibson, 2*Atkins, 603. Chancellor Kent expresses a belief that he is there incorrectly reported ; and it is well known that the reports of Atkins abound in mistakes. The American cases are uniform in their authority to the same point. In *Dunscomb vs. Dunscomb,*Chancellor Kent said, *“*the defendants say the money has always been kept in readiness to pay to the persons entitled, when demanded ; but this is no sufficient excuse. If they had any real doubt or difficulty, as to the person authorized to receive, they could have applied to the Court for advice, or brought the money into Court. If the money (as we are at liberty to suppose,) has been mingled with their own money, it has answered the purpose of credit, and the rule is settled, that executors and all other trustees are chargeable with interest, if they have made use of the money themselves, or have been negligent, either in not paying the money over, or in not vesting it, or loaning it, so as to render it productive.” (1 John. C. R. 510.) See also *Manning vs.*Manning, ib. 535 ; *Shieiffiin vs. Stewart, ib.*623, 629 ; *Brown vs. Rickets,*4 John. C. R. 302. In this last case, Chancellor Kent lays down the general rule, “ a trustee is not to make any gain to himself from the use of the trust funds, but it must all be accounted for to the *cestui que trust.*So, if a trustee mingles the trust monies with his own, so as to answer the purpose of credit, he must answer for what it may reasonably be supposed to have made. He must not in any eTmnt be a gainer by his employment of the trust fund. It is a principle of universal law that a tutor, curator or trustee shall not make and retain a profit of the trust fund.” The decisions in our own Courts are not less conclusive. The chief doubt that has been expressed, and the question in most instances has been, not as to liability. for interest, but-for interest with annual rests, and *439for compound interest. Mr. Adger is chargeable with interest on the annual balances in his hands, under the cases in our Courts. See *Darrel vs. Eden,*1 Dess. 241; *Benson vs. Bruce,*4 Id. 463 ; *Walker vs. Bynum.,*Id. 555 ; *Jenkins vs. Fickling,*Idem, 369 ; *Pace vs.*Burton, 1 McCord’s Chan. 202; *Black vs.*Blakely, Idem. 10 ; *Osioald vs.*Givens, Riley’s Chan. Cases, 38 ; *Chesnut vs. Strong,*2 Hill’s Chan. 140 ; *McCaw vs.*Blewet, 1 Bailey’s Eq. Reports, 48;' *Brown vs. Vinyard,*1 Bailey’s Eq. Reports, 460; *Lafont vs. Ricard,*Idem, 487; *Henderson vs. Laurens,*Car. Law Journal, 134.

The authority of the cases in South Carolina, of every decision of Chancellor Kent, and the decisions of the English Chancery, and even the rule of the *civil law,*combine to fix upon Mr. Adger payment of *compound*interest, or at least, interest with annual rests. Lord Eldon (11 Yesey, 92) said that “in such cases the charge of compound interest was consistent with every view of moral justice, and the Court would shamefully desert its duty by adopting a different rule.” Sir William Grant adopted the same rule, (12 Yesey, 129.) And I cannot, in this connection, refrain from asking the indulgence of the Court, while I repeat what has fallen from one of the ablest Chancellors who has illustrated equity jurisprudence from the American Bench. “ It cannot be amiss to observe,” says Chancellor Kent, “ that the civil law was not forgetful of the justice and necessity of such a strict provision against trustees who converted trust money to their own use; while it gave ordinary interest against the tutor who suffered the pupil’s money to lie idle, yet if he converted it to his own purposes, he was held responsible for interest, *non ex more regionis*(as 5, or 4, or 3 p. ct.) *sed gravissimas vel maximas*usuras, which different commentators fix at 12, or 8, or 6 pr cent, while 4 pr. cent was the ordinary interest. Dig. 3, 5, 38, Id. 26, 7, 7 — 6, and 10 ; Code 5, 56, with the notes of *Gothofredus*and *Voet’s Comm. ad. Pand.*lib. 26, tit. 7, s. 9.) Such coincidence on this particular point between two such systems of jurisprudence, serves of itself, to show that the principle adopted has clear foundation in natural justice, or, at least, is recommended by obvious dictates of public policy. Indeed it appears to be an interesting fact, that the refusal of *compound*interest in ordinary cases between debtor and creditor ; the denial of compensation to executors and other trustees; the charge of simple interest against them when they negligently suffered trust monies to lie idle; and the charge of extraordinary interest against them *440when they invest it to their own use, are distinct principles-not' only well settled in the *English Law,*as I have abundantly shown, in this and the other cases referred to, but they all existed as known principles in the civil law of *Rome ;*and these principles, from the prevalence of that code, are now probably acknowledged and settled as part of their common law in most-of the continental nations of Europe. ThisNistorical fact is calculated to inspire us with much respect for- these principles, independent of their practical utility in securing^ the diligence, and fidelity of trustees.” There is nothing in this case to excuse Mr. Adger from this uniform rule, and no excuse is set up by him. It is said he has always been able to pay. This doubtless is true *}*but-if he were to show that he had always kept the amount on deposite to his credit in bank, it would not change his case or discharge him, because that would be in aid of his credit, and thereby he had the use of the money. He knew who were the parties entitled to receive the money. It was in his hands for the purpose of paying to them, and he neglected to do so. The creditors were ignorant that he had received the money -to their use, and only came to the knowledge by filing their bill in this Court. He is, in the words of Chancellor Kent, “justly chargeable with interest from the time he received the money, and with the costs of suit.” I have dwelt upon this point, because the decree of the Circuit Court made it necessary,'not because I supposed it a question deserving of serious argument. .If there is any authority in decided cases resting upon the soundest reason and morality, Mr. Adger is as clearly liable' for interest on the fund in his hands, as for interest in the nature of damages, on a promissory note or bill of exchange, after maturity .and non-payment ; and I dare say he has, in his life, found it necessary to demand interest in such cases and to know the law. My apology for occupying the Court With a citation of authorities'is to be found in the necessity (caused by the Circuit decree) for making such a point a ground of appeal. For myself, I do confess, I feel very much in the position of that Solicitor, who stood up before Lord Thurlow, .proclaiming “ a fee simple the highest estate known to the law,” until his Lordship, to-speed the cause, took á note of the annunciation.

Before entering upon the discussion of the subsequent grounds of appeal,. I now propose briefly to examine a point raised in the answer and in argument,-but not noticed in the circuit decree. It is said the complainant’s claim is a *stale demand,*and. this- is *441urged in bar to the relief prayed. The doctrine, or as it has been called “ the law of courts of equity,” is that it will not entertain *stale demands.*This rule is adopted independently of any positive legislative limitations. “ A court of equity,” (says Lord Camden, in *Smith*vs. Clay, Ambler, 645, and 3d Brown’s C. C 640, note,) *“*which is never active in relief against conscience or public convenience, has always refused its aid to *stale*demands, where the party has slept upon his rights or acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith, and reasonable diligence. When these are wanting the court is passive and does nothing; laches and neglect are always discountenanced; and therefore from the beginning of this jurisdiction there was always a limitation of suit in this court.” The true doctrine is here stated to its fullest extent, and we are willing the defendants shall have the full benefit of it. *Expedit, reipublicae ut sit finis litium,*is a good maxim and we are willing to stand to it. If there has been a want of “ conscience, good faith and reasonable diligence ;” if he has unnecessarily and for an unreasonable length of time slept upon his rights, or is chargeable with neglect and laches, Mr. Martin must fail, and if this can be shown by the defendants, he is willing to fail. He will then be barred of his relief, not only against Mrs. Price, but against Mr. Adger and the fund in his hands. *Beckford*vs. *Wade,*17 Vesey, 86 ; *Bonney*vs. *Higdon,*1 Cox. Cas. 145; *Blannerhasset*vs. *Day, 2*Ball and Beatty Reports, 104; *Hardy,*vs. *Reeves,*4 Yesey, 479 ; *Huntington*vs. *Smith,*1 Bro. Par. Cas. 95.

What, then, is to be considered reasonable diligence, good faith and conscience; and what laches, unreasonable lapse of time, acquiescence and neglect ? The rule by which this is to be settled is as well established as the doctrine itself. This court is bound under general principles to regulate its proceédings by analogy or in obedience to the limitation of actions or rights at law. In this State this is binding upon the court, by special statute enactment. Statutes at Large, 7 vol., page 340.

In the case just cited, Lord Camden has put it that an equitable right will be barred in the same manner as a legal title would be in an action at law. (Tide *Medlicott*vs. *CDonnel,*IB, di: B. 166. But as the court has no legislative authority, it could not properly define the time of bar by positive rule; it was governed by circumstances. But as often as the legislative power had limited the time to bar proceedings at law, the Court of *442Chancery adopted that rule, and applied it to *similar proceedings*in equity. And in cases of fraud, where the facts constituting the fraud *have been known,*and where there is no subsisting trust or continuing influence, the same principle will apply.

In *Hovedon*vs. *Lord*Annesly, *2 Sch. &*Lef. 639, and *Bond*vs. *Hopkins,*1 Sch. and Lef. 428, (both by Lord Redesdale,) and the cases there cited, the same principle is laid down. If the equitable right is not acted upon in the same time the legal should be, and the parties are *sui juris,*and informed of their rights, it will be barred. *Andrew*vs. *Wrigley,*4 Bro. C. C. 125. *Townsend*vs. *Townsend,*1 Idem. 550. *Cholmon*vs. *Clinton,*2 Merivale, 361. This court is bound to regulate its proceedings by analogy, or in obedience to the statute of limitations (1 Ball ¿.Beat., 106;- 4 Yesey, 479 j 1 Bro. Par. Ca., 95 *} 2*Sch. *&*Lef., 650.)

Now let us test the complainant's claim by these well settled principles. If he is barred at law, his claim must be deemed stale, and in that way also barred in this court. If he is barred, it will be idle to go further. It will then be of no consequence to enquire whether Mrs. Priee has held adversely, and thereby acquired title against a subsisting elaim or not. If he has no longer any claim, then he has no right to call Mrs. Price or Mr. Adger into court. But even if his elaim is still subsisting, and still retains its vitality, it does not necessarily prove that Mrs. Price may not be protected in her possession. Title by adverse possession may be acquired, while at the same time the debt of the complainant is still subsisting. In the one case he would have no debt and there would be an end of the matter. In the other he would have a good claim still subsisting against the estate of Lothrbp, but, not against this particular property. By the settled law of South-Carolina, judgment and specialty debts, which are not barred by the statute of limitations, are, after the lapse of *twenty*years, presumed to be paid. Payment, not the statute of limitations, may be pleaded in bar to them. But this plea may be avoided, not as in the case ot the statute of limitations by proof of a new contract and promise, but merely by proof of non-payment. Lapse of time raises that presumption of payment in favour of a defendant which throws the burden of proof on the plaintiff. Less time than twenty years will not raise this presumption against a judgment or bond creditor, except under strong additional circumstances in proof of payment. This is as much the law of South-Caroliaa as the statute con*443stituting this court. *Kennedy*vs. *ex'or s of*Denoon, 2 Trea. Con. Reports, 617 ; *admin’r. Cohen*vs. *ex’ors*Thompson, 2 Mill’s Con. Rep., 146; *Wilson*vs. *Stanyarne,*Mss. Dec’r. 1818; *Palmer*vs. Dubois, 1 Mill’s Con. Rep’s., 178; *{fLevy*vs. *Hamp*ton, 1 M’C. Rep’s., 145 ;) 8 M’C. Rep’s. 340.

The complainant is a judgment creditor at law, his debt a judgment debt duly signed and entered of record, July 26,1827. His bill was exhibited in this co.urt on the 6th day of March, 1845 ; less than eighteen years had then elapsed. He is then, clearly within the period established by law. We have seen that by the established principles of this court, it regulates itself by the rules of law in such cases, and we have seen by express legislative enactment, it is bound to do so in this State. The complainant’s claim, then, considered merely as a debt, is still subsisting at *law,*and therefore this court will recognize it. No circumstance or pretence additional to lapse of time is set up to show payment ; in fact the proof of non-payment is positive.

But it may be said, that though his debt at law still survives, ye.t the complainant’s equity is barred. If this is what is meant, the position rests upon no better foundation. Not less than twenty years will bar an equity; the rule is a familiar one, and is similar to the rule at law where great length of time will raise the presumption of an *ouster*between co-tenants. “It is not that mere possession is sufficient to bar the true owner. There must be something tantamount to a disseisin, and great lapse of time will be taken as proof of ouster oi disseisin.” But in this court, great length of time may be deemed sufficient evidence, that some act has been done, which if done, is subversive of the claimant’s right, and twenty years has been assumed as the period sufficient to raise such evidence or presumption. But the parties must not labour under disability, as coverture and infancy. Fraud also is an exception *until discovery.*So, too, *ignorance*of one’s rights and mistake ; and even the distress of a party, so far as it accounts for neglect and laches, will *pro tanto*in this court, weaken the presumption. Now in the first place, there is nothing to bring Mr. Martin within these rules, and if there were, we shall show that he is also within the exceptions. In 1825, the breach of trust under which Lothrop became his debt- or, occurred. In 1827, he recovered judgment at law. In 1845, this bill Was filed, and within twenty years from accrual of the first cause of action. But this is not all on this point. If Mr. Martin had never recovered judgment at law; if he were at law *444to this day, a simple contract creditor, still, he is safe in this court, and his debt is here a subsisting debt, and we will prove it; not by showing, (what the bill sets forth and what we have a right to stand upon,) the gross fraud which was practiced, by withholding,this property from the view of the court and creditors, and concealing from them that it belonged to the estate of Lothrop, but by the solemn decree of this court itself, (thanks to the researches of the learned Chancellor.) By the circuit decree and the evidence there developed, it appears that this claim was, under an order of this court, proved in the master’s office, reported by the master, and his report confirmed by decree, 1834. This claim is then a debt by decree in this court since 1834, and in a cause too, not yet concluded ; from that time it has been waiting the action of this court and the defendants, who were bound to have discovered funds and property in their handstand applied them towards this very debt. And now this court, under such circumstances, is asked to say that such a claim is a *stale demand ;*that it has become stale, too, while the fund for its payment has been lying idle, under the order and direction of this court. It will, indeed, be a new doctrine, that the scales of justice have stood poised so long in this court, that the subject matter of their weighing is now extinct of old age.

Where, in this case, is the long acquiescence, the sleeping upon rights, — the want of activity, — conscience, good faith and diligence *1*Where the neglect and laches, which under Lord Camden’s rule render this court inactive'/ The truth is, that the efforts of the complainant to keep alive and prosecute this claim are indicative of any thing except laches or neglect. He has, year after year, time after time, and at all times, upon every occasion, given his diligence and his money to its pursuit.

Under all the circumstances of this case, and the established and well settled rules of law, and of *this*jurisdiction, it cannot be pretended, that the complainant’s claim is not still subsisting at law and in equity. Whether his relief is barred as against Mrs. Price and this particular property, is another matter. This remains to be seen. Claims in equity may be barred,

1st. By the statute of limitation; whenever there isa statuta-ble bar at law, the same period is by analogy or rather *obedience*to the statute, adopted as a bar in equity.

2. The presumption of something done, which, if done, is a bar to the equity; great length of time, laches and acquiescence will raise this presumption, not because the court really believes *445what is presumed, but, in the absence of all evidence, for the purpose of quieting possession, (as in *Eldridge*vs. *Knott,*Cowper 215, pr Lord Mansfield.)

And, 3, Upon the ground of public policy, or the inconvenience of relief; as in the case of an account against a trustee, where the presumption of a final settlement might be rebutted by positive proof; yet the court will not open such account after great lapse of time, where the parties are dead, and the vouchers and receipts lost. Lewin on Trusts, 613.

Fraud until discovered, and *direct trust*between trustee and *cestui que trust,*are uniform and universal exceptions to the rules by which equities are barred. No length of time will cover a fraud, *so long as it remains concealed.*The title to avoid the transaction, does not properly arise till after discovery, and the statute will then begin to run. In *Poussin ads. White,*1 Bailey Eq. 459, Chancellor Harper said, “ the rule is notorious, that time will not run to protect a fraud, until the fraud has been discovered.” And this is only a repetition or confirmation of a familiar rule. ■ In *Lever vs. Lever,*to which we shall have occasion again to refer, the same learned Chancellor says, “ at law the statute does not begin to run, till there is some usurpation of the claimant’s right, or a cause of action has arisen. The possession of an agent or bailee (and a bailment is a trust) is the possession of the bailee or principal, and is not adverse *till demand is made.”*After discovery, the defendant may avail himself of the statute; and when the bill charges fraud, the defendant may demur, unless the plaintiff allege that the fraud charged was *only discovered*within the statutory period. But if the complainant do so allege, the defendant must either deny the *facts*charged as fraud, or prove the complainant had *knowledge*of it. *So. Sea Co. vs. Wymondsell,*3 P. W. 143 ; Mitford’s Pleadings, 269, 4th ed. Ci It is sufficient that the allegation of fraud be substantially, though not clearly or formally made.” 1 Bail. Eq. R. 458, pr. Harper, Chan. So, too, the statutory bar will not apply to a direct technical and continuing trust, which is the mere creature of a Court of Equity, and not cognizable in a court of law; but where the trustee does an act purporting and intended to be an execution of his trust, and is so understood by his *cestui que trust,*who deals at arm’s length with his trustee, *without concealment or fraud,*or undue influence, and the *cestui que trust*is fully informed of his rights, and under no disability, then, time will run to protect the trustee, by analogy to the *446statute of limitation. But the *cestui que trust*must be *sui ju-ris,*and must be honestly made acquainted with all his rights. If this is wanting, neither the lapse of time, nor the most solemn deed of settlement and release will avail, and the trust will be opened and enforced. The same transactions between trustee and *cestui que trust,*which, between landlord and tenant or co-tenants, would amount to an *ouster*at law, will enable the trustee in equity to avail himself of the statute of limitation, or lapse of time, as the case may be. And, as great length of time will be deemed evidence of an *ouster*at law, it will be deemed in equity, evidence of a discharge of the trust, or a relinguishment of right by the *cestui que trust.*This doctrine does not conflict with or contradict the well settled principle, that “ no time bars a *direct trust.”*But it proceeds upon the assumption that the trust has been discharged; Lewin on Trusts, 389, 611 to 617; *Chalmer vs.*Bradley, 1 Jac. and Walk. 67; *Bennett vs. Colley,*2 Mylne and Keen, 232; *Llewellyn vs. Mackworth,*Barn. 449 ; *Beckford vs.*Wade, 17 Yesey, 97; *Hovedon vs. Lord Annesly,*2 Scho. and Lef. 533; *Townsend vs*Townsend, 1 B. C. C. 554; *Pom fret vs. Windsor,*2 Yesey, 484 ; *Smith vs.*Clay, Ambler, and 3 B. C. C. 639 ; *Wedderburn vs. Wedderburn, 2*Keen, 722, by Lord Langdale, M. R., and the same case, 4 Mylne and Craig, 52, by Cottenham, Lord Chan.; *Kane vs.*Bloodgood, 7 Johns. C. R. 90 to 122; *.Starke vs. Starke,*Car. Law Jour. 511 ; *Moore vs. Porcher,*1 Bailey’s Eq. 198 ; *Piatt vs. Vattier,*9 Peters, 413, by Story, Justice; *Gray vs. Givens,*Riley’s Chan. Cases, 41, and 2 Hill C. R. 511 ; *Watkins vs. Williston,*3d Peters Reps. 41; *Coterell vs. Purchase,*Cas. Tem. Talbot, 65 ; *Medlicott vs. O’Donnell,*and *Annan vs. Tyrawly,*1 B. B. 166; *Roche vs.*O’Brien, lb. 330, by Lord Nanners; *So. Sea Co. vs. Wy-mmidsell,*3 Peere Wms. 143 ; *Blannerhassett vs. Day, 2*B. and B. 118; *Whalley vs. Whalley,*1 Meri. 446; *Prescott vs. Hub-bell,*1 Hill C. R. 213; *Riddlehover vs.*Kinard, lb. 378; *Farr vs. Farr,*lb. 391; *Eigleberger vs.*Kibler, lb. 121; *Lever vs. Lever,*lb. 65, 67; *Wardlaw vs. Gray,*Dudley’s Eq. Rep. 88, 89. Laches for a great, length of time, too, on the part of the *cestui que trust,*may deprive him of his rights — but for laches to operate as a bar, it must be shown that the *cestui que trust*Imew his rights and neglected them, or at least, that the trustee did not aid in concealing them, or otherwise, he will not be barred ; for while he is ignorant of his rights, he cannot be blamed for not quarreling with those who have usurped them — and the *447court will not presume a man to have abandoned his rights, so long as he remains in *ignorance,*or labors under a mistake. *Randall vs. Errington,*10 Yes. 423, 427; *Chalmer vs. Bradley,*1 Jac. and Walk. 51; *Pickering vs. Stamford,*2 Vesey, 284; see also *Thayer vs. Davidson,*1 Bail. Eq. 412, where the doctrine is fully discussed by Chancellor Harper, and the qualifications fully sustained. The rule is universal, says he, “ that if it be not in the power of the party to vindicate his rights, the law will not allow him to lose themand in *Gray vs. Givens,*just cited, the same learned Chancellor says, “ the defendant relies on the length of his possession, to maintain his title to the land. More than sixteen years have elapsed, during which he has been in exclusive possession. There is no doubt but that the possession of one tenant in common, is the possession of the other, and that his possession will not be adverse so as to admit the operation of the statute of limitation without an *ouster*of the co-tenant. Whatever is suthcient to give the co-tenant notice, that the party in possession claims exclusively for himself and in his own right, will, I think, be a sufficient *ouster.*But there are no circumstances beyond the naked possession. No doubt an *ouster*may be presumed from a long exclusive possession, (cites *Doe vs. Prosser,*Cowp. 217, where it was presumed after forty years,) but in no case, unless aided by circumstances, has such presumption been made on a possession of less than twenty years.” But it is impossible that the co-tenant or *cestui que trust*can have due notice, if it is carefully concealed from him, that his co-tenant, or his trustee, has such possession. There can be no acquiescence in acts which the party is ignorant at the time that he has any right to dispute. Sir Wm. Grant, 2 Merivale, 361. We shall presently see how this applies to our case. Where the *cestui que trusts*are a class of persons, too, as creditors, the sanction of a part, even of the majority, will not be binding on the rest, but the settlement and transactions with the trustee, which he sets up as a discharge of his trust, must be *th& joint*act of the *whole.*They cannot be expected to exert the same vigor and activity in the prosecution of their common rights, as individuals would do in pursuit of exclusive interests, and they have, therefore, been allowed more indulgence. 3 Yesey, 740, 752 ; 1 Anst. 109 ; 12 Yes. 158 ; Bro. P. G. 42; Lewin on Trusts, 389. The rule is of universal authority — is found in all the cases — is sanctioned by every Judge or elementary writer in England and America, and by the re*448peated and continuous dicta and decisions of the courts of our own State, not only that one co-tenant cannot bar another, or a trustee his *cestui que trust,*aided by fraud undiscovered, or while the *cestui que trust ox*co-tenant is under disability, (as infancy or coverture) but also while the parties to be barred are ignorant of their rights, and that they have been usurped. I do not mean ignorance of the law applicable to rights, but of the *facts*upon which rights are founded. To avoid misapprehension, let us illustrate by a case from our own books. Thus in *Gray ads. Wardlaw et al.*Dudley’s Eq. Rep. 88. The defendant’s intestate had acted as the agent of Nicholson and Duncan, for collecting rents. “ They 'exhibited a book,” says Chancellor Johnson, “ which *purports*to contain the intestate’s semi-annual returns of the money received by him, and the money paid over to them ; the evidence produced, shows that he received other sums to a large amount, not charged against himself in these accounts, and the question is, whether the statute could operate to bar these demands. I think not. The statute will not run against a demand arising out of a technical continuing trust, until after the termination of the trust, and I cannot conceive of any case that would afford a better example of such a trust than the present. Nicholson and Duncan confided to the intestate the receiving of money due to them, for their use — and this imposed on him the obligation to account with and pay to them the amount received, and *until he had performed this obligation, the trust necessarily*continued.” “ There is another view,” says the Chancellor, “of this matter, which is equally, if not more conclusive. The statute will not run against a demand arising out of a fraud, until the fraud is discovered ; now the question propounded, supposes that the intestate received monies for which he did not account, and whether he neglected to do so from *design, from negligence, or inadvertence,*it is *equally a fraud*on Nicholson and Duncan. They depended on him alone for an account of the monies which he had received. They had no other means of obtaining information on the subject, and it would be as reasonable that the statute should begin to run before a cause of action arose, as that it should operate to bar a party who had *no means of knowing he had a right of*action.” This is the language of Chancellor Johnson, then and now one of the members of this court. Chancellor Johnston, another member of this court, delivered the appeal decree, specially confirming the circuit decree upon this point — and *449Chancellor Harper, the third of the four Chancellors constituting this court, concurred in this appeal decree, and upon no other grounds than those taken in the circuit decree. This is the true doctrine, and it applies in every particular to our case, and nowhere is it more distinctly stated, than in the cases cited by the Chancellor in the circuit decree. Ignorance of. the *cestui que truét,*where it is the duty of the trustee, (which is. always his duty,) to afford full and perfect information, and he does not afford it, is a complete, and perfect protection against the bar of the statute of limitation, lapse of time, laches, acquiescence or neglect to prosecute his fights, operating in favor of the trustee, no matter whether the trustee intends fraud or not. He may be ignorant himself of the facts concealed, and perfectly innocent of any fraudulent purpose. But when he does make the discovery, it is then for the benefit of the *cestui que*trust; and it is a direct fraud for him to-claim a benefit to himself, from the concealment. If he knew what was, concealed from his *cestui que trust,*the concealment was a fraud. If he did not know it, he did hot claim adversely, except from the time of the mutual discovery and notice of the denial of the trust; and from that time only, will the statute or time run to bar the rights of the *cestui que trust.*This is the true doctrine, and I challenge the whole bar of the country to controvert.it by a single reputable authority. It would-, be a new thing for this court to give to any one, and especially a trustee, a direct personal benefit from his own negligent or fraudulent acts.

There is another well settled rule, too, which, if it shall appear that Mrs. Price never was a trustee, we shall claim to apply in full force to this case.

The *cestui que trust*cannot be barred, except by barring, the trustee. The possession of the trustee is the possession of the *.cestui que trust,*and he is entitled to the benefit of it, and of all the rights of the trustee. The legal estate is in the trustee, the equitable in the *cestui que trusty*and both these parties being out of .possession and disseized, the party in possession, the dis-seisor, must bar the legal estate of the trustee, otherwise his possession avails him nothing against the equity of the *cestui que*trust; no matter how long the time, as between the trespasser and the equitable estate, provided the legal estate is preserved. If the legal estate is in. an infant, a feme covert;, or other person under disability, and cannot be barred, the. equitable estate is thereby protected, as against the stranger, who has got into posr *450session. He has nothing to do with the equitable estate. He holds against the legal estate. This is the rule, as expressly laid down by Lord Redesdale in the leading cases of *Hovedon vs. Lord*Annesly, and in *Bond vs. Hopkins,*already cited. The *cestui que trust*can doubtless compel his trustee through a Court of Equity to assert his rights, and then those rights enure to his benefit. What then becomes of the claim by - possession against the equitable estate, a possession that does not bar the legal estate *1*Lord Alvanley, and afterwards Lord Eldon, laid down the same rule in *Harmood vs. Oglander,*6 Ves. 199; 8 Ves. 106-132. See also *Greenville vs. Blythe,*16 Ves. 224; *Hansard vs. Hardy,*18 Ves. 455; *Pomfret vs. Windsor,*by Lord Harwicke, 2 Ves. 472; *Willis vs. Shorral,*1 Atk. 484; *Pickering vs. Stamford,*2 Ves. jr. 272 — 281.

But it is useless to cite authorities to support a doctrine which cannot be questioned, which is every where and uniformly conceded.

“ So long,” says Sir John Leach, “ as he who has the legal estate is not disseised, so long as the legal estate is not turned into an adverse right, it is nonsense to talk of equitable disseisin. So long as the legal estate subsists in the possession of my trustee, it is idle.to talk of a possession, which is to deprive me of my equitable rights.” It is true, if the trustee, for a great length of time, concedes that the party in possession is the *cestui que*trust, and the real equitable owner, by his neglect or indifference seems to acquiesce in this, he may be barred. If the mortgagor is out of possession, and thereby, (according to *Shultz*vs. *Stoney,*1 Hill Chan. Rep.) the legal estate has passed to the mortgagee, where it is from the first, by the English law, and he receives from *the*trespasser interest (rents and profits,) on the mortgage money for more than twenty years, the mortgagor may be barred of his equity of his redemption, and the trespasser or disseisor will be deemed to have acquired it, though the legal estate still subsists-. This is precisely what was finally decided in the great case of *Cholmondeley*vs. *Clinton,*reported in 2 Ves. and Beames, 113 to 116; 2 Merivale, 71 to 75, 81 to 86, and 170 to 362, and in *2*Jac. and Walker, 1 to 206. That case deserves particular notice. It confirms every doctrine we have advanced, and is entitled to the highest consideration and- weight as authority. No case in Westminster Hall was ever discussed or adjudicated with more marked ability and learning: no less than *nineteen*of the ablest and most learned of the English bar, brought to the dis*451cussion all their pre-eminent abilities and learning, and among them were Messrs. Butler and Preston and Sir Samuel Komilly, Sir Edward Sugden and Hart, Chancellors of Ireland, Tice Chancellors Shadwell and Leach, Lord Chief Justice Gilford, and Lord Chancellors Lyndhurst and Cottenham. It was heard and at various stages adjudicated by Sir William Grant and Sir Thomas Plumer in the Rolls Court; twice by the twelve judges of England on law points, and finally - by the House of Lords, where Lords Eldon and Redesdale delivered elaborate judgments. And in that case thus discussed-and adjudicated, every doctrine which I have propounded upon the application of the bar of the statute, or of length of time, to trusts, is either conceded in the argument or confirmed by the decisions of the bench. This, surely, is strong confirmatory authority, and is entitled to some weight even in this court.

Now let us apply these well settled principles to the circumstances of this particular case. If it shall appear that Mrs. Price has had such transactions with the complainant as purported and were understood by both to be an execution of her trust, or such as would between tenants in common amount toan *ouster*of one of them by the other, and there has been no concealment or fraud on her part; if her *cestui que*trust, the complainant, has been *kept, or has had*reasonable opportunity of being, fully informed of his rights, and sufficient time has elapsed ; or if (as may appear,) she. has never been a trustee at all in this matter, and has, (or it has been possible for her to have,) acquired title by the statute of limitation, or by lapse of time, against the trustee, then *her*title is perfected and the complainant effectually barred.

The fourth and fifth grounds of appeal raise the question, whether, upon the death of Wm. Price, jr., the original trustee, intestate, the legal estate and trust descended under our statute of distributions, commonly known as the Intestates’ Act, (5 Statutes at Large, 162,) or at *common law.*If it descended under the provisions of the statute, his widow became entitled to one-third of the lot in question, and his five minor children to the remaining two-thirds, in equal aliquot parts. If it descended at common law, then, the *heir at law,*the eldest son of the intestate, took the legal estate and became the trustee. It has been apparently assumed by the Chancellors, who have heretofore had occasion to consider this case, that the legal estate and trust did descend according to the statute. My own consideration of the subject has brought my mind to a different conclusion, and I shall *452endeavour, before I close, to show that the trust never was cast upon Mrs. Price, but descended at common law to the *heir at law.*In deference, however, to the opinions of the Chancellors, I shall in the examination of the remaining questions, proceed in the *first*place upon the *assumption*that the trust descended under the statute. In this view, then, upon the death of Wm. Price, jr., the trust devolved upon his widow and his five minor children, the eldest of whom, a daughter, is now (1846) about 26 years old. They took the estate under precisely the same tenure by which their intestate held it in his life-time. It will not be denied that the assignment of Lothrop to Price created a direct technical trust in favor of Lothrop’s creditors : such a trust as is the mere creature of equity jurisdiction, and over which this court has exclusive administration and control. (2 Story’s Eq. p. 304, sec. 1058.) At law, the creditors could have no action against him, while their interests were not ascertained by a division or dividend. Upon this trust the undivided moiety of the lot in question was held *by*Mr. Price, at the time of his death, and descended to his distributees. The other moiety he held in his own right, but subject to mortgage to the Bank of South Carolina. Upon foreclosure of this, Mrs. Price became the purchaser of *that*moiety. She then became legally possessed of one moiety in her *own*right, and jointly with her five children (all minors) of the other moiety in trust for the creditors of her brother, S. H. Lothrop. Her title at law, then, was a tenancy in common in her own right of one moiety of the whole lot, and as to the remaining moiety a tenancy of one-third of the same in trust, with her minor children, who were her co-tenants, and her co-trustees.

The circuit opinion and decree declares that she has since acquired a good title in her own right to *that moiety*which her husband held in trust for the creditors of Lothrop, and which, upon his death, the decree also assumes, descended to herself and her children, subject to the same trust. It is our purpose to inquire how it is that she has acquired this title, and how the creditors of her brother have been deprived of their rights, It will not probably be denied that the provisions of the same law which cast the trust upon Mrs. Price, made her minor children her co-trustees. It will *perhaps*be conceded that the undivided moieties, one held by Mrs. Price in her own right, and the other the trust estate of Lothrop, was a tenancy in common, under one of the sections of the same statute, which cast the descent upon her, *453and which abolishes the *jus accrescendi.*(Stat. at Large.) It may, too, I think, be assumed without the danger of raising any new question, that as to the moiety in trust, the legal estate in that was a tenancy in common, in unequal parts, between the six. trustees, five of whom were minors; one-third of the legal estate in this moiety was in Mrs. Price; the other two-thirds in her minor children in equal parts. The only unity required between tenants in common is, that of possession. For one tenant in common .may hold his part in ice simple, the other in tail, or for life ; so there is no unity of interest. One may hold by descent, the other by purchase; so that there. is no unity of title. One’s estate may have been vested for 50 years, the other’s but yesterday ; so there is no unity of time. (2d Cruise Dig. 524 ; 2 Black Com. 191-2; l Thomas Coke, 759.) This is, I believe, a correct view of the rights and position of the parties under the statute of distributions upon the death of Wm. Price, intestate. It is conceded that they continued the same till the 24th day of May, 1834. From that period the circuit decree declares that she began to hold adversely and to acquire, and at the end of ten years (the statutory time) did acquire under the statute, a good title by adverse possession. Let us now first inquire why it is that May the 24th, 1834, is fixed upon as the starting point for the adverse possession. In January, 1832, Mr. Adger, the admr. of Price, filed his bill in this court, for the purpose of obtaining a sale of a part of the property of his intestate, Wm. Price, jr. The plantation on Caper’s Island was brought to notice by this proceeding, and was ordered to be sold. The bill also brought to view the lot in Cheraw, belonging to Lothrop. This was ordered to be sold. Mrs. Price and her minor children were the only parties defendant to that bill; she answered for herself, and also as guardian *ad litem*of her minor children. The same solicitors (Messrs. King and McCrady,) represented all parties, complainant and defendants, and the whole proceeding is manifestly one by consent and *pro forma.*The wharf property is in no way referred to or noticed in this proceeding. The creditors of Lothrop were never called in under this bill, nor was this case subsequently united with the *“ Bank*vs. *Adgerf*and the two conducted together. The Chancellor assumes this to be so. It is a mere assumption and is not correct. It was not so, and it is a mistake to say so ; nothing was heard of this suit after the attainment of the object for which it was instituted, which was ihe gale of certain *specified*property. Subsequently, the Bank *454of South Carolina filed their bill for a foreclosure, against Mr. Adger, admr., and the widow and heirs of Price.

Mrs. Price here again answered as the guardian *ad litem*of the minor children, and as such, represented them. Under this bill, the creditors of Lothrop *were*called in, and under it, the complainant *proved his*debt, in the master’s office, had a favorable report, which report was confirmed by decree of the court, May 24th, 1834. It is this decree which, in *one*view, cannot preserve Mr. Martin’s debt from becoming a stale demand, but in *another viqw*is deemed sufficiently efficacious to give to Mrs. Price the complainant’s just rights. It is this decree which a Court of Chancery is called upon to consider a faithful and full execution of a trust. The trust property was never mentioned or brought to the view of the court, and* besides the fact that Mrs. Price was a trustee, seeking by concealment of trust property to obtain a personal benefit, she volunteered to assume the position of *guardian*over the very minors whose legal-rights it was necessary to bar. This whole suit of 1832 and ’34, was got up and conducted under the patronage of Mrs. Price, for the express benefit of herself. This is manifest from the results as well as an inspection of the proceedings. In the first she was appointed guardian *ad*litem, on motion of the complainant’s solicitor, and every order in the case on either side, is in his handwriting and on his motion. The second suit was conducted and resulted in the same manner. The wharf property was sold at midsummer by consent, bid in for the exact amount of the mortgage debt, at $15,000 less than Price’s purchase, and which he had proved it to be worth before this court, (see Chancellor DeSaussure’s decree, January, 1827,) and $25,000 less than Mrs. Price has sold it for. The report and decree thereon, of May 24th, 1834, were all of the same day, and by *consent*of the Bank and of the defendants ; but the *creditors of Lothrop*were not heard, and had no notice or notion of what was going on, or that a decree was to be made, by which property they had never heard of, was to be considered as brought to view. They had no opportunity to except to the report. Where was the rule of court — where Lord Bacon’s ordinance, that “ no order shall be made for confirming or ratifying any report without day first given, by the space of a sevennight at least, to speak to in the court.”

The whole proceedings were irregular as to the creditors, and in their effects were an imposition upon the court, and a fraud upon the creditors. It has been seen that Mrs. Price’s minor *455children were her co-tenants and her co-trustees in the trust. They were all minors at the date of this decree, she was their guardian *ad*litem, and as such controlled the very proceedings, by which this court now holds she has barred them of their rights. She has thus by the aid of this decree overcome not only the disability of their infancy — of their being co-tenants and co-trustees, but also the relation of guardian and ward. Now will any lawyer pretend to sustain such transactions? Can it be said that it is possible for Mrs. Price to have held adversely and acquired title against infancy, co-tenancy, and the relation of guardian and ward'? Is such to be the decision of this court ? I hope not, for the sake of common sense as well as common justice. It is impossible; this court does not so administer the rights of infants. If it were allowable to lay aside the seriousness which this question deserves, I should say there is one and only one way by which such a decision could be made: make a new reading of an old maxim. *Lex de minimis non curat.*It would be no greater perversion of this maxim to say it applies to little children and their rights, than it is of the doctrines of this court, to advance some propositions which have been advanced in this case. It is clear, not only that Mrs. Price has not barred her co-trustees, but that she was in a position where it was impossible to bar them. But suppose Mr. Martin, as one of the creditors of Lothrop, had, on 24th day May, 1834, gone much farther than is pretended by the decree and by his deed, *with such information only as these proceedings afforded*him, agreed to discharge Mrs. Price of hei trust, and had admitted that she had duly and fully executed it, even then the whole might be opened. He would not be estopped, or Mrs. Price protected in her possession. The books are full of authorities to this point. Many of them have been already cited. They-are founded upon the general and recognized doctrine, that a trustee, executor, agent, or other person acting in a fiduciary capacity, cannot become a purchaser for himself, or in *any way*use the peculiar relation in which he stands as trustee, to derive a personal advantage from the management and disposal of the trust property, and funds. *Gregory*vs. Gregory, (Sir G. Cooper 201;) *Cook*vs. *Collin-gridge,*(1 Jac. 607;) *Chalmer*vs. Bradley, (1 Jac. and Walk. 5 ;) *Walker*vs. *Symonds,*(3 Swanston, 1 to 90 ;) are cases directly to this point, and especially so is *Wedderlurn*vs. *Wedder-bu*n,*already cited, where Lord Langdale in the Rolls, and Lord Cottenhamon appeal, opened deed after deed, and after a lapse of

*45629 years, as to one of- them, upon the ground “ that full information, such as trustees and guardians are bound to give, especially in a case where personal interests, of their own are involved, never was properly communicated.” There was no charge of fraud or pretence of fraudulent intention or concealment. The defendants set up deeds of release and discharge by the' complainants, executed under advice of counsel, in bar to their claim. They also relied upon the lapse of time, the statute of limitations and the *stateness*of the claim. But Lord Cottenham in appeals said, “ The case is one of trust. No presumption of payment, or satisfaction, or waiver can arise, because the title is in dispute at this moment; and the facts upon which the plaintiff’s title depends *were not made known to them ; •*and although the commencement of the transaction is of an early date, and one of the plaintiffs attained the age of twenty-ode in 1809, and the youngest in 1820,” (this was in 1838) “yet the transactions have never terminated, or the accounts been finally closed. No case has, under such circumstauces, considered time as precluding the account from the commencement; namely, where the situation of trustee or *cestui que*has continued, the transactions between them not closed, and the delay of-the claim *attributable to the trustee not having given the information to his cestui que trust,*to which he *was*entitled, and accounted with him in such manner as^the court is of opinion he ought to have done. . This is not the case of an attempt to raise a constructive trust upon transactions closed many years before, but of a direct trust, of which the transactions are not closed.” Such is precisely the present case in every respect, except that in our case the trustee has kept back the information, and the accounts have remained unsettled by reason of this, for about ten years only; in that case the delay was twenty-nine years.

There is, too, another, distinction in this case ; it cannot be pretended that Mrs. Price ever gave any consideration in the pretensive settlement and discharge which is set up as to the trust property she attempts,to hold. In that case there had been an accounting or settlement, and large,sums paid over by the trustee, as the consideration upon which the deed of discharge was founded. , There the trustee was only mistaken as to his duties. He never attempted to seize the trust property as his own, but he supposed he had a right to deal with the trust affairs and the *cestui que trust*as with other transactions and persons. Whoever, is desirous of knowing what really is the English chan-*457eery, and how far. it goes to prevent trustees from deriving a personal benefit from their dealings with their *cestuis que trust,*will do well tó read this case in.4thMylne and Craig and in 2 Keen. But the same doctrine is recognized, conceded and sustained in all our cases (with the present unfortunate exception,) and especially in *Starke*vs. *Starke ; Watkins*vs. *Williston ; Kane*vs. *Bloodgood;*and *Moore*vs. Porcher, referred to by the Chancellor. Again, it was assumed, that with the decree of May 24th, 1834, there was an end of..that case, and that the- decree was final. This is .a mere assumption and not correct. It is a mistake. The last decree in *uthe Bank*vs. *Adger,"*was the appeal decree of March 20th, 1835, and this bill was filed March 6th, 1845, fourteen days within the statute of limitation, even if it were possible for the statute to apply. -It is well, settled that while any part of a cause is in court, this court, may review its decrees therein, by. a re-hearing-; *Price*vs. *Nesbit,*1 Hill’s'Chan. Reps. 454; and. *Johnson*vs. Britton, Dudley’s -Equity, 28. The decree of May 24, 1834, was not final, till, March 20,1835. The fact is, this case of the *Bank*vs. *Adger ■*has never *yet*been concluded. There has always been a fund under control of the court, waiting for distribution, and this is of itself sufficient, under the Chancery practice, to keep the cause, especially a creditor’s bill, alive.

I think it is clear, that if Mrs. Price, was a trustee, she has not been and-could not be discharged. The relative positions of herself and her co-trustees and co-tenants, all under disabilities, preclude her from barring them. She was not only their natural guardian, but their guardian at law, and.controlled, as such, their action, and planned and directed the very acts which it is now pretended enabled her to hold adversely to them, and finally deprive them of their legal rights. It' would be monstrous for this Court to say that a guardian could, use his position as such, to strip his wards of their estate. If their estate is preserved the complainant’s equity is equally safe ; itcanno't be pretended that the complainant has acquiesced in these tortious acts, because, “there can be no acquiqsence in acts, which the party is ignorant, at the time, that he had any right to dispute.” — (Si,r,iyfn. Grant, 2 Merivale, 361.) I have shewn that- there is .nothing in' the shallow pretence that his claim is stale. It is, I believe too, now conceded, that Mrs. Price has not, and never did h.ave any *paper*title, or the shadow, even, of a paper title-; and if she had, it- was from a' grantor who had no right t.o convey. She never' pur*458chased, and if she ever did, in good faith, suppose she had purchased, it was her own mistake and misfortune to imagine she had purchased what she must have known she had paid nothing for, and from a party who did not pretend to sell, and if he did, had no right to sell.

But I have said that my examination of the subject has brought my mind to the conclusion, that Mrs. Price never was a trustee. That this property was not distributable under the Act of 1791, and that it descended at common law. This opinion is founded upon the express words of the statute, as well as the obvious meaning and purpose of the enactment. The Convention of 1790, by the 5th section of the 10th Article of the Constitution, then adopted, directed the legislature to pass laws for “ the abolition of the rights of primogeniture, and for giving an equitable distribution of the real estates of intestates.” The legislature, at its session in 1791, passed the Act known as the Intestates’ Act, and by the first clause of that Act declared, *“*That the right of primogeniture be and the same is hereby abolished.” This declaration is of itself clearly broad enough to destroy that right as applied to legal estates, held in trust; but the remaining part immediately following of the *same sentence*goes on to say, “and that when any person possessed of or interested in or entitled unto any real estate *in his or her own*right, in fee simple, shall die without disposing thereof by will, the same shall be distributed in the following manner.” The Act then directs the manner of distribution, and “ that in all cases where provision is made by this Act for the widow of a person dying intestate, the same shall, if accepted, be considered as in lie of and in bar of dower.” The restriction to estates held by the intestate in *his or her own*right, and the provision that the share of the widow shall be in bar of dower, as clearly seem to exclude estates held in trust, as the first part of the sentence seems to include them. If then we are to follow the statute literally, there is no descent of estates held in trust. The descent at common law is clearly abolished by the words of the Act. It is equally clear that they are excluded from the descent substituted under the statute. *Expressio unius est exclusio alterius.*And therefore there is no descent of such estates, and the title becomes extinct with the life of the intestate. But this is a conclusion not to be adopted if it is possible to avoid it. The statute was remedial, and so intended, and it is proper so to construe it as to effect the remedy, and not defeat it. The probability is that this question was entirely overlooked, in the use of *459the general words abolishing primogeniture, or that it was supposed the restricting words of the same sentence sufficiently controlled their general and sweeping effect. I think the rules of construction, in such cases, will warrant the latter view. The Barons of the Exchequer, in *Heydon's*case (3 Rep. 7) laid down rules for “ the sure and true interpretation of statutes.”

1. What was the common law before the making of the Act ?

*2.*What was the mischief and defect, against which the common law did not provide ?

3. What remedy the Parliament hath resolved and appointed to cure the disease, and

4. *The true reason of the remedy.*

It was held to be the duty of the Judges to make such construction as should suppress the mischief and advance the remedy, adding force and life to the cure, according to the true intent of the makers.

Statutes, too, are to be construed in reference to the principles of the common law. It is not, in a doubtful case, to be presumed that the legislature intended any innovation beyond the necessity of the case to which the remedy is applied. Now it will be at once conceded that the abolition of primogeniture, and the application of the distribution, provided by the Act, to trust estates, so far from being a remedy, would be an evil; and this was the view of the legislature in restricting the distribution, and excluding from it trust estates. If to the well understood purpose of the statute, and the evil which it was intended to remedy, we apply the rules of construction and interpretation, with even the narrow latitude they give, we shall, I think, be constrained to the conclusion, that its intention and fair interpretation is to abolish primogeniture, as applied only to the estates of intestates, held in *their own*right, and that this excludes its application to estates held in trust. It is always fair and allowable to consider the mischiefs to be remedied, and the provisions of the Act for reme-; dying them, and this must be done by considering the provisions as a whole, and not in detached sentences, or parts of sentences. If in this case the Act had provided any manner of distributing trust estates ; in fact if it had not expressly excluded them, the Courts would, under the general words abolishing primogeniture, feel bound to include them, without regard to the manifest and obvious inconvenience and evil of distributing them, like other estates. The real intention, too, when clearly ascertained, will always prevail over the literal sense of the terms ; and the in ten*460tion of the legislators, when discovered, ought to be followed consonant to reason and discretion. This certainly cannot be done in this instance without coming at once to the conclusion that the Act of 1791 does not apply to trust estates. There is no possible reason why it should apply. There is no ground for supposing it was intended, notwithstanding the general words, to apply ; and there is great reason, the reason of inconvenience, and the absurdity it presents,, for believing it was intended not to apply to such estates. If as to them promigeniture is abolished, there is no rule of descent substituted in its place, and the estate, as I said, must expire with the trustee; for it is clear, they are excepted from the plan and manner of distribution established by the statute. Adopt the other construction and there is no absurdity and no inconvenience to be met and obviated, but the contrary. It is supported by every consideration of convenience and reason; and is, I have no doubt, *“*the true reason of the remedy intended.” If then, this view be correct, what is the position of Mrs. Price, and what her rights from the date of her purchase at the master’s sale, in 1832? Clearly, she purchased one undivided moiety of the lot, and the legal title to the other undivided moiety was in her eldest son, a minor, now at this present time about twenty-four years of age. He held the legal estate and supported the trust. The equitable estate was in the complainant and other creditors of Lothrop. Mrs. Price and her son were tenants in common ; she took and held possession of the whole. But her possession was not and could not be adverse, but was in support of the common title. The possession and seisin of one tenant in common, is the possession and seisin of the other. ' Such possession is not adverse to the right of his companion. 1 Inst. Coke, 199 b. If there be. an ouster, either actual or by implication, then ejectment will lie, and the statute from that time will run ; the possession of the disseissor is then adverse. *But if*one take the whole profits, this is no ejectment, and' the other has no remedy at law. Coke’s 1 Inst, *ut supra.*But the reception of the profits for a great length of time, will raise the presumption of a disseissin. No actual *ouster*need be proved, but the lapse of time, (as in one case 36 years) will be sufficient evidence to go to a jury, who may establish an ouster and quiet possession. Doe, d. *Fisher vs. Prosser,*Cowp. 217,- pr. Lord Mansfield, *and-Peaceable vs. Read,*1 Efist, 568, pr. Lord Kenyon. -Now Mrs. Price had received the rents, and had the posession for 13 years before the'filing of this bill, but during 10 years of that time her co-tenant was a minor* *461and she was his guardian. There was no *ouster*— in fact there could be done. The proceeding of 1834 was not adverse to the minor. Mrs. Price was his guardian *ad litem,*as we have seen, and controlled and directed his action. If he had not been a minor and under that disability, if he had been *sui juris,*and she had been his solicitor in the cause, she could' not hold any advantage to herself, personally arising out of proceedings managed by her. How then can it be pretended that she can bar him by riding over the relation, 1st, of a co-tenant; 2d, of guardian and ward, and 3d, the disability of minority *1*'We have seen, beyond dóiibt, that'Mr. Martin and the creditors- cannot be excluded, except by excluding- and barring their trustee, whoever that may be, and if the heir at law, at *common law*was the trustee, there is an' end of the argument- The simplest problem in the Horn Book of the law is not clearer than what we claim.

The next, and final proposition is, that the-concealment of the true title to this property, and of the trust that attended it, was a fraud'which has been but recently discovered, and that the statute can only run from the time of the discovery. This proposition rests, of course, upon the assumption that Mrs. Price, was a trustee. The bill, charges, that taking *“*unfair advantage,” and not discharging her duty, as trustee, Mrs. Price concealed from the complainant his equity in this property, and the trust which attended it, and in fact concealed that Lothrop had conveyed the same under the general terms of his assignment. That,instead of affording that information which it was Her duty to give, as to the title; and which she was herself informed of, she concealed it from the complainant, “ and held and used the moiety lot as her own,” in direct violation of her duty and- obligations as trustee. This is clearly a substantive allegation of fraud. “ *Fraud map be either direct fraud or fraud of unfair*advantage.” ' (Yer-planck on Contracts, 226.) “ The -concealment which amounts to fraud.in the sense-of a Court of Equity is, .the non-disclosure of those facts and circumstances which one party is under some obligation to communicate, and the other,party has a right, not merely, *in foro conscientice,*but *juris et de jure,*to know.” 1 Story’s Eq; -216, section 207. *“*It is the duty of trustees to afford to their *cestui que*irwsi^all the information of ;which they are,- or ought to be, in'possession: A trustee may involve himself in serious difficulty, by want of the information which it was his duty to obtain; and he who undertaking to give information, gives but half information, in the doctrine of this Court, conceals.”— *462(Pr. Lord Eldon, 3Swanston, 58-73.) And this is that concealment which amounts to fraud in the sense of a Court of Equity. The bill also charges that this concealment and fraud has been but lately, and within the statutory period, discovered. This brings the pleadings within the strictest rules - of practice. *Wymondsel vs. So. Sea Co.,*3 Peere Wins. 145; *Poussin ads. White,*1 Bail. Equity, 458.

The answer neither denies or admits the ignorance of the complainant, and-the discovery of his rights, or the time that this knowledge came to him. It denies the fraudulent concealment, but does not deny the facts charged as such. -, She denies, too, all knowledge herself that she ever was trustee ; that the property was a trust; that she never acted or pretended to act as trustee. This is clearly an admission of all the facts charged, because it cannot be said she afforded full information of facts of which she claims, herself, to have been ignorant; but now, being informed, she claims in her own right. This is both concealment and taking unfair advantage of concealment, and that is fraud in law and in morals. In her answer, Mrs. Price in fact relies upon the decree in *Price vs. Lamb,*and the famous *“ paper*title” of that case, and sets the same up in bar to our rights. We have seen what was the brief career of that title. But, some emphasis was placed upon the allegation in the bill, that Mrs. Price had held and used the moiety lot as her own, as if this were proof of the acknowledgement of her adverse possession. I was surprised to hear this. I might say I was mortified, but the expression does not become me as applied to maturer years and wisdom. It would not be fitting to my humble professional sphere to play the critic. But I was supprised. Why, the charge that “ she used the lot as her own,” is a part and parcel of the charge of fraud; neither more or less, and so it appears. No one, certainly no lawyer, could mistake it. It is just what Martin charged against Lothrop, when he brought his action of trover and conversón for his 106 bales of cotton. It is what every declaration at law or bill in Equity which impeaches a possession as fraudulent, must charge.

1 have heard of the simple indignation of honest laymen, at hearing the combining and confederating clauses read against them, but I never did before dream that a lawyer would pretend that, to allege that A, regardless of his duty, and of right and justice, having got into the possession of the property of B., concealed from B his rights, and held and used the property as his own, *463thereby taking “ unfair advantage” of B, was an admission of any thing favorable to the claims of A. Such an idea is a refinement beyond my humble legal acquirements. To me it seems to be a subtlety which scarcely deserves a better name than a quibble. and old Dr. Watts taught us, when we were children, that *“*quirks and quibbles have no place in the search after truth.” Compare this narrow distortion of the bill, and of the plain and obvious meaning of language, with the judicial language of Chancellor Harper, in a similar case and a similar charge in *Poussin ads. White*et ab 1 Bailey Eq. 458.

It is not denied — it must be conceded, that Mr. Martin was in profound ignorance of his rights, until the decree in *Price vs. Lamb.*■ It is clear that Mrs. Price did not give him such information as would have put him upon the assertion of his rights, “ and whether she neglected to do so from design, from negligence, or inadvertence, it is,” in the language of this Court, ‘‘equally a fraud(Dudley’s Eq. 89) and neither the statute, *eo nomine,*or time could run against Mr. Martin, and in her favor, except from the discovery of the fraud.

For Mrs. Price to say that she was ignorant of the trust which devolved upon her and of the rights of her brother’s creditors, may excuse her from the discharge of her duty till she discovered it; but surely this cannot avail her either in law or morals, in resisting them, after she is informed of her duty. What would be said of the executor or guardian who,-upon settlement with his ward, should, from mutual ignorance or inadvertence, retain half his estate, and then, being informed of his error, should excuse himself upon the ground of ignorance, but because he had at first acted innocently, should insist upon retaining, for that reason, what he could only hold tortiously *1*The Chancellor relies upon the cases of *Starke vs. Starke, Watkins vs. Williston,*and *Kane vs. Bloodgood.*They are conclusive authorities upon this very point. “If,” says Chancellor DeSaussnre, in *Starke vs. Starke,*“ there had been any circumstances which indicated unfairness, and any *injustice resulting from it,*the Court would without scruple have opened the transaction, set aside the relinquishment or discharge, and ordered an accountand Judge O’Neall, delivering the judgment of the Appeal Court, says, “ But it is in evidence, that at that time the trustee did an act, intended and understood to be, by the *cestui que trust,*a discharge of the trustand, “ if it was pretended that a fraud had been committed by the trustee, or that his *cestuis que trust wet e ignorant**464*of their rights,*the statute *would not commence*to run until a discovery of the fraud; or *until they were informed of their*rights.” In *Watkins vs. Williston,*the same doctrine is fully avowed; and the argument of Chancellor Harper, and the judgment of the Court, proceed entirely upon the ground, that the landlord had full -notice that the tenant disclaimed his tenancy and claimed in his own right for full four times the statutory period before bringing the' suit. “Here” says Judge Baldwin, “was no secret disclaimer, no undiscovered fraud; it was known to Bordeaux” (the landlord) “ and was notice to him that Williston (the tenant) meant to hold from that time by his own title and adverse possession ; this terminated the tenancy.” In *Kane vs. Bloodgood,*the same doctrine is conceded, as indeed it is in every casé upon this subject, ever decided by Chancellor Kent. That was a case of *constructive,*and not technical trust There was a legal as well as equitable'remedy; an action at law as well as bill in Chancery could have been maintained, and the Court decided, -what every well read lawyer kno.ws, that merely by a choice of the forum or jurisdiction it is not in the power of the party to avoid the effect of the statute. The statement in the bill was .of itself decisive of -that case. It showed that in 1804 the plaintiffs had. a legal-cause-of action, and then made a demand and were refused payment. The bill was filed in 1821. “ They were barred at law, and upon established principles of Equity by analogy, and in obedience to the statute of limitations, were equally, barred in this Court.” (Kent Chan.)

But, says the circuit decree, “ The complainant enjoyed all the means of information in 1832, which he has now. The deeds were all on record ; and if any defect existed, it was as well known to the complainant as to the defendant.” It is true the deeds were on record, but it may well be doubted whether that •alone afforded as extended means of information, as was afforded by this Court .10 years afterwards, by the decree in *Price vs. Lamb,*which declared- the class of,persons of which the complainant is one, “ *beneficially*interested.” Whether the defects in Mrs. Price’s title were “ as well known to him as to her,” is a proposition which Mrs. Price best understood, and can answer for herself. Mr. Martin has already said for himself, on oath, that he was ignorant of his real rights till a very récent date. But this is argument which applies in more wajrs than one. Mr. Martin js an intelligent merchant, but he is not a lawyer; and is he to be blamed for not having found out that Mrs, Price had no title *465in her own right, when *this Court, advising for two whole years upon this same title, and with her title deeds before them, for one year, for adjudication, did not discover that*“ *any defect*existed,” *but that the deeds gave her “ a good paper title*?” Is Mr. Martin to be told that he is to lose his rights, because he was not more astute in finding out the true state of this title, without seeing it, than the *Court of Equity Appeals,*having it spread open before them *'l*Was it to be expected of him, to trace with more safety and skill the labyrinth and doubtful chain of this title, than any one alse, or to suffer for his failure ? “ The deeds were all recorded !” — and what did this avail him ; was he to go to the records, *cceca regens filo vestigia,*and ascertain whether Mrs. Price was faithfully discharging her duty? Did this Court -say to Nicholson and Duncan, you ought to have gone among your tenants and enquired whether more rent had been paid to your steward than he had accounted for? No ; no such thing. The Court said it was Gray’s business to afford this information, and failing to do so, neither he or his administrators, when it was discovered, should claim exemption from liability by force of the statute. As well might the defaulting cashier, or fraudulent book-keeper, after a long continued series of frauds for succeeding years, when at last detected, turn upon his wronged and injured employer, and taunt him with this judicial exemption, and say to him, you trusted and relied upon me in full faith that I would deal honestly with you ; this was not only your folly, but is my justification. The books were open to you, why did you not examine them? “You enjoyed all the means of information then which you have now.”

The Chancellor says there is no testimony to warrant the *suspicion*that Mrs. Price knew any thing she did not disclose. I certainly differ from this opinion in my view of the testimony. Mr. Adger was the friend and agent of Mrs. Price. He bid for her in the purchase of the wharf; he'continued to have the management and control of it for several years, and held the most confidential relations with her. Mr. McOwen married a sister of Mrs. Price ; he has been for many years in the employment of Mr. Adger ; he knew and communicated to Mr. Adger, soon after Mrs. Price’s purchase, the fact that a part of this lot belonged to the estate of Lothrop, (his wife’s brother.) All this is in evidence and was notice to Mr. Adger, as the agent' of Mrs. Price, and he acted upon it in making the tax returns. Notice to Mr. Adger, the agent, was notice to Mrs. Price, the principal. This is legal *466notice, proved positively by the testimony of Mr.- Adger. But there is no positive testimony of direct personal notice fixed upon Mrs. Price. . This may be conceded. Most minds would, however, think this testimony sufficient to warrant the suspicion”1 that she *might*know what her agents, friends and kinsfolk all knew concerning her affairs.

. There is another circumstance, which goes very far to raise the presumption that Mrs. Price did actually know the true state of the title to this lot and stores. She certainly did know that she only purchased an undivided moiety. , The advertisement and description by the Master, under which she purchased, her title deed, and the mortgage she gave for the purchase money, are all conclusive as to this. Was it likely then that she should never enquire who was. her co-tenant? Who the owner of the other moiety? Was not such an enquiry most natural ?• If she did enquire, it is scarcely probable that she was not fully informed. Her solicitors, her friends and family all knew and could inform her. How stands the case with Mr. Martin and the other creditors ? They had no inducement to investigate the matter except the suspicion of bad faith against their trustee, and this, at that time, they had no cause to suspect. I think it may be said with Safety, under such circumstances, that it is going quite too far to assume that the means of correct information were equal. As to the registry being open to the creditors, that is very appropriately answered by Lord Manners, referring to a very similar pretence set up. “ They, might,” said he, “have employed somé person to .examine the registry; but there was nothing to induce them to ,do it, or to suggest it to them ; and if they had, unless they had some one as astute as the counsel in this cause, the objection would not have occurred.” (2 B. & B. 129.)

The Chancellor has expressed the opinion that it would be “a *fraud*for the creditors to avail themselves of this *defective*conveyance.” This is a mere opinion, but it is a *judicial opinion,*and falls harshly upon the ears of a man who has been deprived pf his property by a succession of breaches of trust, by one after another of the same family, and now is to lose his rights, if he does lose them, only by the lapse .of time, accomplished, too, by judicial delays and’oversights. .But it is some consolation to have shown that the conveyance was *not “ defective*;” and the foundation upon which the charge of fraud rested being thus removed, it is to be hoped the charge will fall with it. But there ¡certainly has been something *defective*in this matter, and that *467something was the decree in *Price vs.*Lamb, which found for Mrs. Price the “good paper title.” But the complainant is guiltless of the sin of having “availed himself” of that. (Mr. Campbell was going on to contrast the respective claims of Mr. Martin and Mrs. Price to the charge of fraud, when he was interrupted by the court, and requested to confine himself to the argument.)

The circuit decree also expresses the opinion, that there is much ground for saying this whole matter is *res adjudicdta,*as between these parties, by the. proceedings of 1832 and 1834. I confess, that with all the respect and reverence with which I am accustomed to receive every thing which falls from the learned Chancellor, still I am not able to find the grounds for this view of the case. With all that anxious diffidence and distrustful reliance upon myself, which I always feel when called upon to express dissent from any proposition or opinion advanced by him, I am compelled, nevertheless, to say I can find no more ground for this, than I did for the “.good marketable paper title,” or for the decree ordering the payment of creditors who did not ask it, and had already been paid in full.

There is one remaining point which calls for scarcely more than a single remark. The decree gives costs against the complainant. This, under the circumstances of the case, is unusual. It is not the practice of the English Chaneery to give costs against a party whose rights are lost by the operation of the statute of limitations, or lapse of time. This practice has been uniformly adhered to by Chancellor Kent, through all his decisions. “ It is not usual,” says he, “ to give costs where an unfortunate claimant has color of claim, and is barred by lapse of time.” (3 Johns. C. R. 147.) The claimant in this case has a twofold claim to the benefit of the rule. He is not only to be barred of his just rights by the lapse of time, but that is accomplished by the delays and oversights of this court.

This concludes what I proposed to say in examination of the case, as it has been presented by the Chancellor in the circuit decree. I have endeavored to shew, that with the evidence there developed, the decree cannot be sustained. If I have failed in this, it does not deprive us of the privilege we claim, either to have the evidence not before the court at the hearing, struck out, and the decree reformed accordingly, or a re-hearing ordered, so that we may have an opportunity of answering to the evidence upon which our rights are adjudicated. This, no Judge *468or court sitting to administer the laws and the rights of the citizen under a constitutional government, has a right to refuse.

*Mr. Grimke*was heard for Mrs. Price et al. defendants.

*Mr. Dukes*for James Lamb.

*Mr. J. M. Walker*for James Adger.

*Mr. Memminger*for appellant, in reply.

*

 This case should have been given with the others of the term at which it was decided, but circumsatnces prevented its being inserted in its proper place.

*Curia, per*Dunkin, Ch.

As to so much of the appeal as relates to the claims of Mrs. Eliza Price, the decree of the circuit court is affirmed ; but it was assumed in the decree, that the funds of the assigned estate of Lothrop were inadequate to discharge the preferred debts. This is said to be a misapprehension, and that it is susceptible of proof, that the preferred creditors have been satisfied. In that case, the surplus is distributed among the general creditors o'f the assignor, “ rateably and proportionally, according to the amount of their debts,” as provided by the deed of the 12th Sept. 1825.

Although the order of Jan. 1832, directed a sale of the lot in Cheraw, the premises are yet unsold, and constitute part of the assigned estate of Lothrop.

It is ordered and decreed-, that the lot in Cheraw be sold by one of the masters of this court, at such time and on such terms as the solicitors of the creditors shall fix.

It is further ordered, that the account of the defendant, James Adger, be referred to the master to report thereon; and that the master also report to the court, the creditors of S. H. Lothrop, who are yet unpaid, and who may be entitled to payment under the provisions of his assignment. All questions in relation to the accounts of the administrator, and the appropriation of the fund, being reserved until the hearing of the report. In other respects, the decree of the circuit court is affirmed, and the appeal dismissed.

Johnston, Ch.

I concur in the conclusion to which the Chancellor arrived in his decree.

It is very clear that the property, when originally mortgaged to the bank, and then passing as Lothrop’s wharf, did not include lots 8 and 9 ; but it is apparent that, from the time when Lothrop acquired these lots, he regarded them as a portion of the wharf property, and passed the whole under his assignment under that designation.

It is unquestionable that neither Price nor Mrs, Price acquired *469title, by their purchases, to more than an undivided moiety of the lots I have mentioned. The mortgages under which they purchased included no more, and they purchased no more.

It is manifest, therefore, that at the time Mrs. Price purchased, the title to one undivided half of these lots was in the heir, or heirs of Price, subject to the trusts of the assignment; and the other half in Mrs. Price as purchaser. I speak, of course, of the paper title.

But she went into the possession of the whole; and, as the bill states, held it thenceforth as her own : a thing very natural for her to do — inasmuch as she understood herself as purchasing the whole of Lothrop’s wharf; of which Lothrop had, as early as 1825, regarded the lots 8 and 9, as integral portions.

Then if the trust estate in the half which was assigned to her husband, had descended to,her, as sole heir, and been held by her, along with the other half, which she had purchased ; been held by her as her own, as the bill states; I think it wquld be difficult for the plaintiff now, after the time which he has allowed to elapse, since the creation of the trust, (and especially after the opportunities he has had, and neglected,) to enforce his demand against the property.

There was nothing to prevent the enforcement of his demand in the life-time of Price, the assignee ; and nothing to prevent its enforcement during the pendency of *Adger vs.*Price, or the *Bank vs. Adger et al.*The assignment and all the mortgages were on record, and he must be held to have had full notice of the extent to which the property was liable to him.

There is another consideration. Hé' was brought in, as the Chancellor states, in the two cases I have mentioned. In the first of these cases there was a professed enumeration of all the assigned property then remaining, and Mrs. Price and her children were called upon to submit to an execution of the trusts which are supposed to have devolved upon them. No part of these lots was enumerated. The family of Price understood themselves as then called on to execute, and as actually executing, all the trusts incumbent upon them ; and Mrs. Price held these lots as her own, and free from all trusts, at least from that time. Why did not the plaintiff then interpose, and inform her that she was not fully executing the trusts?

When all these circumstances are put together — the lapse of time from the date of the assignment — the neglect of-the plaintiff — the intention of the heirs of the trustee to acquit themselves *470of all the trusts imputed to them; and the holding of Mrs. Price for herself, and not in trust; I think there is too great laches, and too great lapse of time, to allow, the plaintiff to sustain his bill now.

But an argument has been urged to the following effect; that Mrs. Price as purchaser held only one undivided half of the lots, as tenant in common with the heir or heirs of her husband. That the other half either descended at common law upon Price’s oldest son, who has but recently attained full age, or upon herself and all her children, (the whole of whom were minors,) under the statute of distribution. That her possession being that of a tenant in common, was the possession, also, of the heir or heirs of the trustee, and did not bar them of their legal estate ; and that, of course, the trust still subsists, in virtue of the rights of the heirs of the trustee.

My opinion is, that the moiety subject to the trusts descended to the oldest son of the assignee, at common law.

The statute for the distribution of intestates’ estates (5 Stat. 162,) recites that: “ Whereas the convention of this State” “ did direct that the legislature should” “ pass laws for the abolition of the rights of primogeniture, and for giving an equitable distribution of the real estates of intestates.”

“ Be it, therefore, enacted, that the right of primogeniture be and the same is hereby abolished: and that when any person possessed of, interested in, or entitled unto a real estate, in his or her own right, in fee simple, shall die, without disposing thereof by will, the same shall be distributed in the following manner,” (fee.

Now my opinion is, that this has nothing to do with trust estates, but only concerns the distribution of those in which the intestate held the beneficiary interest in his own right.

We must remember that the object of the Act is to distribute estates among those interested in them; but trusts are not created, that the property should be distributed, but that the *trusts may be executed.*The Act only provides for the distribution of the intestate’s own property; and would be violated not only in its spirit and intent but in its letter, if extended to estates not his own. If this were left doubtful, and resort were had to considerations of mere convenience, to aid us in the construction of the statute, these would determine in favor of the descent at common law, and not under the statute. Trusts are often of long continuance ; being clogged with limitations and remain*471ders sometimes determinable at distant periods. In the meantime, by the death of the trustees, and possibly of their issue, the trustees, (taking the descent to be cast by the statute) would become so numerous and so widely dispersed, that it would amount almost to an impossibility, in many cases, to bring them before the court, to answer to their duty. On the other hand, the descent at common law presents a single person, easily traceable, and easy to be reached. The costs in the one case would be exorbitant, in the other comparatively'inconsiderable.

It is said, however, that the statute leaves ho room for the descent at common law. That the right of primogeniture is expressly abolished, and to hold that it may still exist, in any case, is an infraction of the Act oí Assembly-; but the purposes for which this right was abolished, as well as the manner and connection in which it is done, manifest that this would be a very narrow and imperfect interpretation of the statute — the great purpose of which the solicitude of the convention ' bears evidence, was that property should be equalized by an organic law. This could not te done without abolishing the right of primogeniture ; and, therefore, the direction was given to abolish this right, *to the end*that real estate should be equally distributed; and the direction was exactly followed in the statute. The one right was abrogated and the other substituted *uno flatu.*' But what would the distribution of trust estates accomplish towards the equalization of property, or how would it accomplish the great purpose of the convention *?*

If it be assumed that the right of primogeniture is unquali-fiedly and absolutely abrogated in all cases on the one hand, it is just as certain; — and by the same mode of literal construction, —that the'statute only provides for distributing the individual property of intestates on the other; and, then, as this does not include trust property, we are brought to the absurd conclusion that the title to such property does not descend at all: not at common law, for that descent is abolished ; nor under the statute, because that does not extend to it; a construction not to be entertained for a moment.

Other portions of the Act, which I have not quoted, might be brought to bear on this question, such as the provision relating to dower ; and the provision imposing the burden of a mortgage upon the property for equality of partition ; but I forbear to go-in to them, because too much time has been already consumed upon a point unnecessary to the case before us.

*472Whéther the heir of Price as to this trust property be the oldest son, or his wife and children, can be of no sort of consequence in the present suit. In the one case, her possession as purchaser would be regarded as the possession of her son. In the other it .would enure to the benefit'of all her children, who would be her co-tenants. But' the bill alleges that she held in her own right; — that is, that she did not hold in trust. Her possession being that of her co-tenants, their possession must be regarded as equally exclusive of the trust. ■ 'And, then, when we consider the circumstances' to which I have already adverted, I think the plaintiff comes too late to insist on the obligation of theassignment.

On the other points I concur with the opinion just delivered by Chancellor Dunkin.

Johnson, Ch. dissented;