#### *John Woodward et al*v. *Caleb*Clarke, *sen., et al.*

Columbia,

May, 1850.

Where the minority of one of the complainants alone prevented the bar of the statute to the recovery of the freehold, the Court ordered that, as to the inter, ests of the minor, the account of rents and profits should be extended to the period when her right accrued, but that her disability affording no advantage to her co-plaintiffs, in the claim for rents and profits, as to them the account should not be extended beyond the filing *of*the bill.

*Before*Dunkin, *Chancellor, at Chester, July Sittings,*1849.

CIRCUIT DECREE.

Dunkin, Ch. — It is proposed'only to advert to some of the leading facts in this case.

The complainants are, some of them, children of Patsy Woodward, deceased, and others, children of Caleb Clarke, sen., but all of them are grandchildren of Charlotte McMul-lan, deceased. Mrs. McMullan died on the 3d day of March, 1831; she had been four times married; Palsy Woodward was the only child of the first marriage. Richard Harrison and Julia B. Clarke, formerly the wife of Caleb Clarke, sen., were the issue of the second marriage; all these children died before their mother, Charlotte McMullan ; she was survived by her husband, Hugh McMullan, and two sons, Joseph J. and James C. McMullan, who, with the complainants, were entitled to any estate she might have left. Hugh McMullan died in 1841, and Joseph J. McMullan in 1845. The defendants, C. Clarke, sr., and J. Cathcart, are now the administrators of Hugh McMullan, deceased.

The first claim which will be considered is that which relates to the estate of Richard Harrison, the brother of Mrs. Clarke; Richard Harrison died in 1812, prior to the intermarriage of Caleb Clarke, sr., with his wife, Julia B. Harrison. His estate consisted of some lands, and five or six negroes. His distributees were his mother, Mrs. McMullan, his sister (afterwards Mrs. Clarke,) in equal moieties. Mr. Clarke says he does not know whether a division of the negroes had or had not been made before his marriage: but the real estate was certainly divided afterwards, and his wife received her share.

The complainants interpose no claim to any part of the real estate. Hugh McMullan and those claiming under him, have been in quiet possession of such of the Harrison negroes as they held (some five in number), from 1812 until the 7th May, 1846. Anything will be presumed to quiet their title, and, when it is remembered that, during about twenty years of that time, the conflicting claimant was one eminently qualified to understand and to maintain his rights, it may *168well be presumed that any claim had been previously satisfied, or was abandoned.

' The next demand of the complainants is couched in the f0]j0Wjng terms: “ that Hugh McMullan, without administering on the estate of his wife, received of money, belonging to her estate, the sum of three thousand one hundred and eighty-four dollars, and has never accounted to the complainants for their distributive share thereof.’’ To explain and to establish this charge, the complainants relied on two receipts, given by the defendant, Caleb Clarke, esq., to the Commissioner in Equity, on the 6th January, 1838, and also on testimony of Mr. Clarke, who was examined as a witness. The receipts purport to have been taken in the case of Hugh McMullan, administrator of Wm. M. McDonald, deceased, v. John Dunovant and others. The second is in these words: “Received, of Samuel McAlilly, Commissioner in Equity, two thousand eight hundred and ninety dollars, money received by him of John Brown, one of the defendants in the above case, January 6, 1838. Signed, Caleb Clarke.” Mr. Clarke says that this was the 'closing scene of a litigation, relating to the McDonald estate, which had embraced a period of more than twenty years. Mrs. McMullan was the sole distributee of W. M. McDonald, of whom Hugh McMul-lan became administrator. The litigation extended to suits in Union, Fairfield, Chester and Lancaster districts, and both, in law and equity. According to Mr. Clarke’s statement, the suits were managed with various success, during the intermediate periods ; and gave, both to Hugh McMullan and his solicitor, the witness, great trouble and' no little expense. Hugh McMullan collected something (how much does not very clearly appear, nor is it important,) in, the lifetime of his wife. But the sum now claimed never came to his hands at all, nor any part of it, so far as the Court can gather: it was detáined by Mr. Clarke, for his long and laborious professional services. He says he gave Hugh McMullan credit for the amount collected; that the amount was received and adjusted after Mrs. McMullan’s death. This is the evidence of the complainants. If it proves the receipt of the money by Hugh McMullan, as Administrator of McDonald, it proves also that he rightfully disbursed it, for highly important and valuable services rendered to the estate which he represented. The complainants make no charge of collusion between McMul-lan and his. solicitor, to whom this apparently large allowance was made *•*and the defendant, C. Clarke, might well complain (as he did,) that any objection was urged, or rather inquiry instituted, as to the reasonableness, of his remuneration, without any specific charge on that subject. But the proof, on the part of the complainants, is, that Hugh McMul-lan, in fact, received nothing of McDonald’s estate after the *169death of his wife. When the charge assumes a more definite form, and shall seek to make his estate responsible for the money which Mr. Clarke collected, his representatives may be able to shape their defence to meet the charge. But this is a specific demand, for a specific sum, as received, by the intestate, which is not sustained by the proof.

i Bail. R. 192.

Mrs. Charlotte McMullan was, at the time of her death, in 1831, entitled to one moiety of the Leonard tract of land, and to the forty-acre tract mentioned in the pleadings, and also to a tract of land in Lancaster district, said to be in the possession of the defendants, Daniel Bush and James R. Massey. At the time of Mrs. McMullan’s death, her husband became entitled to one-third of her estate, one-sixth descended to the children oí Patsy Woodward, one-sixth to the children of Mrs. Clarke, and two-sixths, or one-third, to the sons of Hugh McMullan. These latter transferred their right to their father, who was thus seized in fee of two-thirds of the said real estate. Some five or six years after his wife’s death, Hugh McMullan agreed to sell the Lancaster tract to Dr. Bush, for four thousand dollars, and, on the 25th November, 1836, executed a bond in the penal sum of $>8,000, conditioned to make warranty titles on payment of the purchase money. About three-fourths of the purchase money has been paid, when, on the 7th May, 1846, these proceedings were instituted, claiming partition, and that two-sixths, or one-third, of the several tracts above mentioned, should be set off to the complainants. The defendant, Dr. Bush, relies on the possession of his grantee and himself for about fifteen years. But it was proved that the youngest of the complainants (a daughter of Caleb Clarke, esq.,) was now but eighteen years of age. Under the decision of *Lahiffe*v. *Smart,*this protects the rights of her co-tenants. Partition must accordingly be ordered; but it appears to the Court that, under the circumstances, the account for rents and profits should be restricted to the time of filing the bill.

■It is ordered and decreed, that, as to the claim for an account of the personal estate of Richard Harrison, deceased, and also for the sum of $>3,184, the bill be dismissed. It is further ordered, that a writ or writs of paitition issue to divide the real estate of Charlotte McMullan, deceased, described iu the pleadings, among the parties interested therein, and that an account be taken of the rents and profits since the 7th May, 1846, and that the Commissioner report theieon. *It is*further ordered and decreed, that the Commissioner state an account between the defendant, Daniel P. Rush, and the administrators of Hugh McMullan, deceased ; and that, for any balance due to the said Daniel P. Bush, he have leave to stand us a bond creditor of the said intestate.

Each parly to these pioceedings to pay their own costs.

*1702McC. C. 320.

The complainants appealed on several grounds, of which the following only was urged.

Because his Honor should have decreed complainants enti-^e(j t0 rents and profits of the lands of Mrs. Charlotte McMullan, from the time of her death, in March, 1831, up to the present time.

*Dawkins*&• *Rutland,*for the motion.

*Gregg*& *McAlilly,*contra.

Curia, *per*

Dunkin, Ch.

The first ground of appeal was abandoned, and the third ground was not urged. The second ground of appeal is, that the Court should have directed an account of the rents and profits, from the death of Mrs. Charlotte McMullan, in March, 1831.

It is stated in Bailey’s Eq. Rep. 63, as well as in several other cases, that the practice of the Court, in giving an account of rents and profits of real estate, depends on general principles of equity. The account will be given from the accrual of the right, or will be restricted to four years, or to the time of the demand, according to the circumstances of case. And in *Rowland*v. Best, the Court say, “It is not an uncommon case for a party who lies by and permits another to occupy and enjoy property as his own, under an apparent good title, which he might and ought to have brought into discussion much earlier, to be restricted in his demand, for an account of rents and profits, to the filing of the bill, or four years before.” The Circuit Chancellor there restricted the account to five years, and the Court of Appeals, in reviewing the judgment, declared that “ they would have been better satisfied if it had been allowed only from the time of demand.”

In this case, the complainants’s right accrued in March, 1831. For ten years the property has been in the possession of a *bona fide*purchaser, for a full and valuable consideration. More than fifteen years after the accrual of their right, the complainants first moved in the matter, and brought into discussion the defendant’s title, several years after the death of his vendor, and when his estate had become probably insolvent. The minority of one of the complainants alone prevents the bar of the statute to the recovery of the freehold. But this disability of a co-plaintiff can afford them no advantage in the claim for rents and profits. It is ordered and decreed that, as to the interests of the minor, Julia Clarke, the account of rents and profits be extended to the period when her right accrued, and that the decretal order be so modified. In all other respects, the decree of the Circuit Court is affirmed, and the appeal dismissed.

Johnston and Dargan, CO., concurred.

*Decree modified.*