*Columbia.*

Heard before Chancellor Desauassure.

#### Wamburzee, Charlton and others, *vs.*Kennedy, Robinson, M’Creight and others.

case rsx>

A suit will be sustained in this court, for the recovery of slaves, and their encreasc, and for an account of their hire and labor, by persons who have been long ignorant oftheir rights, and who could not readily or certainly identify the slaves and their issue, but by a discovery in this court. The relief is more complete here.

A third person purchasing slaves, and taking an absolute bill of 'sale from the vendor, with knowledge *that he*had no more than a right to a temporary use of them, whilst the absolute right oí property was in minor children, shall be considered as a trustee for the children. And ■11\? statute of limitations will not run in favor of such a purchaser, or-*475those claiming under him as volunteers, until the children entitled discovered them rights. But purchasers from the first purchaser, for valuable cons .derat.on, without notice, shall be protected.

FEB’Y. 1814.

The complainants filed their bill in January 1812, lor the discovery of cm tain slaves and their increase to which they set up a claim, and for au account of the hire and labor of said slaves, for a number of years.

Several of the defendants admitted in their answers that they had possession of some of the slaves in question, which they claimed and had held many years, under the will of Mr. Alexander Robinson, deceased, who bequeathed them to his sons and sons in law, and they insisted that the said Robinson had purchased the slaves who were the parents of those in question, in the year 1789, for valuable consideration, from D. Charlton, who bad a good right to sell the said slaves.

One of the defendants, M’Creight, was a purchaser of one of the slaves from Robinson, at a fall price, without notice of any *claim;*and the defendants all relied on the statute of limitations.

It was proved at the bearing of the cause, that the complainants claimed under a deed dated 21st March, 1781, executed by James Munford, which in consideration of love and affection, and ofl,090i. conveyed a number of slaves to his cousins, the Charltons, the children of 1). Charlton *;*but that the said slaves should remain In possession of the said D. Charlton, till his youngest son, Arthur, should attain £1 years of age, when they should be divided among the said children.

It was proved on the part of the defendants, that Alexander Robinson had purchased the slaves in question from D. Charlton, who gave an absolute bill of sale for them, dated 13lh Feb. 1789, for 150 guineas. The bill of sale included only part of the negroes conveyed by Mr. Munford to the Charltons. It was recorded on 22d . July, 1793 — And Mr. Robinson had possession of the slaves till he died, which was in the year 1800. And he bequeathed the said slaves to his children, who are the defendants, except one slave, whom he sold to the defendant M’Creight, for valuable consideration,

*476It was proved that Mr. Robinson was apprized, pre-viou* to his purchase, by Mrs. Munford, that Dr. Chari-ton had a right to dispose, of the services of the slaves tilt his youngest son Arthur should come of age, arid no longer,* and he was made acquainted with the deed of gift to the children.

D. Charlton died in the year 1791, and his widow and children removed to Georgia soon after. The widow died, anu the children have. lived there ever since.

Mrs. Munford stated that she supposed the children did not pursue their claims tid recently, because they were ignorant of their rights, and of the circumstances for a long time; and ignorant of the residence and situation of Robinson.

The defendants relied on the statute of limitations. Alexander Robinson having purchased the slaves in 1789* and held them till his death; and his children and legatees since his death ; and no suit till 1812.

Several objections were made by the complainants *to*the operation of the statute of limitations in this case. The two first were that the right of action did not accrue till Arthur Charlton was of age, and that the children were absent from the slate.

But the court was of opinion that these objections could not prevent the operation of the statute, because the right of action accrued on A. Charlton's coming of age, which, was at least as early as in the year 1802 ; ani no suit was instituted till 1812. — And by the provisions of the statute of limitation, *four years*only are given to a claimant after coming* of age; and five years to an absentee, after the right of action accrued, and much longer than those periods had elapsed.

Another ground of objection to the operation of the statute, as a bar to the claim of the complainants, was that Mr. Robinson purchased the slaves, and took an absolute bill of sale f.-u* them from I). Charlton, though he was particularly appiized thai D. Charlton had no more-than a temporary interest in them, and that the absolute right of properly was in the children of I). Charlton, the complainants. That this amounted to a legal fraud in *477.íhe purchaser, and the statute of limitations would not run in such a case, until the discovery of the fraud by those interested and wronged by it. And that in fact the Charitons were young children at the time of these transactions, and had not come to a knowledge of their rights till very recently before the suit instituted.

The facts stated were contested at the hearing, but Were proved to the satisfaction of the court, by indisputable evidence.

And the court was of opinion, *(i*that the taking an absolute bill of sale for the slaves purchased from D„

Charlton, when the purchaser knew that he had no right to sell them for more than a term of years, was at least a legal fraud.” The effect of which was, « that it raised a trust in Robinson, for the benefit of the young . Chari-tons.”

*“*The destruction of the estate or interest in the estate of the cestui quo use is a breach of trust, and it makes no difference whether the settlement or trust deed be founded on a valuable consideration, or marriage, or a voluntary settlement, or a will. It was said by the de ■ fendant’s counsel, that Dr. Charlton was not a trustee, and there was no trust estate. Certainly there is nothing expressed in the deed of a formal trust. But it is the settled doctrine of this court, that where one person is in possession of property, which he is bound to deliver to another, and he fails to do so, equity raises an implied trust, which is subject to the rules and principles of trust estates. The doctrine of trusts is far more extensive, than is usually apprehended. It goes to this length, that whatsoever is the agreement, concerning any subject, real or personal, though in form and construction purely personal, and sueable at law only; yet in this court it binds the conscience: and wherever persons agree concerning any particular subject in a Court of Equity, as against the party himself, and any claiming under him, voluntarily, or without notice, raises a trust. See Le„ garde w. Hodges; 1 Yea. jr. 478. It is true, that if the legal estate was in the trustee, and he sold and conveyed the trust property to- a purchaser without notice, am! lor & *478valuable consideration, such purchaser would bold the property discharged ofthc trust, and the remedy of the injured cestui quo trust would be against the trustee. But in case of a purchase for valuable consideration, with notice of the trusts, or a voluntary conveyance without notice, the purchaser or voluntary grantee would hold the property liable to the trusts. Seethe importaht case of Mansell *vs.*Mansell, decided by lord Chancellor King, assisted by lord Chief Justice Raymond and lord Chief Baron Reynolds, reported in *2, V.*Wms. 678, 681.

in fact, Dr. Charlton cannot be said to have had from the operation of the deed, the legal estate in him, whilst the equitable estate was in the cestui que trusts; for the direct legal estate was to the children, with a temporary right of possession interposed for the father: so that it woud not be easy to shew that the legal estate was in Dr. Charlton, of the entire interest, which would protect a purchaser from him, even for valuable consideration, and without notice. But Dr. Charlton undertaking to sell the whole interest, and Mr. Robinson to buy the same, though both knew that ho had no right to do so, raises up by implication, a trust in the purchaser for the benefit of the children. Mr. Robinson was, indeed, a purchaser for valuable consideration : but it was with notice of the true rights and interests of the parties ; and therefore he held the *property*subject to the provisions or uses of the deed, in favor of the young Charl-tons. And as the sons and sons in law of Mr. Robinson took as volunteers under his will, they must be responsible ; even though they had no notice of the transactions in question, and ofthc rights of the parties; though there is a presumption even of that, from their connection with Mr. Robinson, and from the knowledge of several of the family, that he put the negroes out of the way to avoid the claims ofthc Charltons, and from Mr. Alex. Robinson, the son, removing to the western country, with some of this property.

It was faintly urged, that some of the children of Mr. Robinson, having paid his estate *151.*apiece, for their respective shares of these negroes, in pursuance of *479his will, that this placed them on the footing of a purchaser for valuable consideration.

It does not strike me in that light; — this was a mere family arrangement to equalize the legatees $ and if such an arrangement should be permitted to sanction the claim as purchaser for valuable consideration, the most fraudulent purchaser might protect the property in the hands of liis family for the most trivial consideration, — . All that could be pretended, would be, that they should be reimbursed these small advances, in accounting for the use and labor of the negroes ; but they have their remedy against Mr. Robinson’s estate.

Mr. M'Creight stands on a different footing. He is really a purchaser from Mr. Robinson for valuable consideration without notice, and is entitled to the protection of the court. The complainants cannot recover against him $ though they may he entitled to recover the yalue against the estate of Mr. Robinson.

This transaction then, being considered fraudulent, and raising a trust in Mr. Robinson for the young Charltons, we come to the question, whether, in such case, the statute of limitations is allowed to operate ?

I take the law on that subject to be as follows : As a rule, the statute of limitations does not operate in cases of fraud and of trusts; hut as soon as the fraud is discovered, it commences to run ; and if the parties neglect to commence their suits, within the statutable limitations, they are barred. This doctrine is laid down in the case of Booth *vs.*Earl of Warrington, decided in the House of Lords, with the assistance of all the judges* 13 Yincr, 542, case 3d, and much more fully reported in 1 Brown’s I’arl. Cases, 449. And thq doctrine is supported by Lon! Chancellor Ring, in the case of the South Sea Company *vs.*Wymondsel, reported in 3 1C Williams, 143, 4, 5. See too 1 Washington’s Reports, 145, 9. It is true, the statute shall operate in cases of trust, in favor of an absolute stranger, for the rule, that :the statute of limitations does not bar a trust estate, holds only as between the cestui que trust and trustees j ■and not as between cestui que trust and trustee on one *480side, and strangers on the other. 4 Bac. 473; 2 Eq, Cas» Abridged *579;*1 Brown, C. C. 554, Townsend *vs,*Townsend.

Let us then apply tin's law to the facts proved. It appears that Dr. Charlton died in 1791, and his widow removed to Georgia very soon after, whilst her children were very young j and the mother .died in a short *time.*— > They were at a distance from the scene where these transactions had taken place, and from those persons who could give them information on the subject. Mrs. Mini ford, who together with her husband, might have informed them of their rights, and of the unjust sale made of their negroes, swears expressly, that she believes the Charltons did not know of their rights, nor ofthe.se transactions. And this proves, at least, that she ami her hus.-haiul had never communicated to them, their knowledge of these facts. There is a strong presumption then, that the Charltons had not discovered the fraud till recently. They state in their bill, that they were not informed till within one year of filing their bill ; and there is no proof on the other side, to induce a belief, that they had any earlier knowledge. Then it would seem that though the statute, of limitations will run even in cases of frauds, from the time of the discovery of the fraud, the statute has not had time to operate in this case, since the discovery of the fraud. The suit has been brought within the legal limitation. Fraud was not expressly charged in this bill of *complaint;*but the facts stated, and supported by proofs, made out a case of legal fraud, against which the statute of limitations does not run ; and if a formal charge of fraud was necessary, the court would give leave to amend — 3 Ik Williams 144. And this would bo done even at law. Doug]. 054, Bree vs. Holbcck.

It was stated as a ground of defence, that the children of the negro woman Ursa, born during the time Dr. Charlton was entitled to hold possession of the ne-groes, would belong to Dr. Charlton.

This did not seem to he much relied upon. If it should be desired to carry up this question to the Court of .Appeals, I have no difficulty' in giving my opinion.- it *481fes been considered a question of difficulty, and different 'decisions have been given in different states. But I have made up my judgment on the subject, after a pretty full examination of it. My opinion is, that the issue of fe-fnale slaves in all cases riot controlled by the deed of will, *go*over to thé remainder man, though born during the. continuance of the particular of intermediate estate. — . Should the point be carried up, I shall he prepared to support my opinion, with the reasonings and authorities on the point, meanwhile I refer to tiie institutes. — Libor 2 tit. 1, *37*; Digest lib. *7,*tit. 15 lib. 22, tit. 1.

But independently of the general doctrine* I apprehend the circumstances of this case, and the words of this "deed would be decisive. The deed gives the negroes directly and absolutely to the ydüng Charltons. It was á perfect gift, and if the deed had stopped there, would have taken effect immediately. But it goes on to postpone their right, by declaring that until Arthur, the youngest child, should attain tWeniy-o’ne years Of agC> the negroes should remain in the possession of Dr. Charl-ton, the father. Whatever may be the general law, I think that in this case, Dr. Charlton has no right to the Children born during his right of possession.

It was objected by the defendants, that the complainants had plain and adequate remedy at law, arid weré not eufitled to relief in equity. But the remedy at law was very doubtful, The complainants had no personal knowledge of the negroes, nor what children Ursa had, nor in. whose hands they were. They obtained some information by summoning witnesses, but it wasffrnperfecis The confessions in the answers have added to the lights. I do not think there was such plain and adequate remedy stt law, as ought to preclude the complainants from coming here. An account is yet to be had, and can be iiad muck Better here than at láv/. And this single suit coyers the whole case in the court 5 whereas many suits must havd Been brought at law.

As Alexander Robertson was proved to bo deau in the western country, and as Simon Robertson' has not donicsse.d any thing, and nothing has been preved against *482*him;*andas Wm. MeOcight is a purchaser for valúa-jjje consideration without notice, no decree can be made . , ,. against them.

With respect to the other defendants, John Kennedy, Joseph Robertson, Samuel Miller arid Samuel Banks, It is ordered and decreed, that they do severally deliver up the negroes claimed by the complainants, and either proved or confessed to have been in the possession of the said defendants ■. to wit, John Kennedy shall deliver to the complainants the woman slave named Suckey and her children; Joseph Robertson, the negro man slave named Sykes; Samuel Miller, the negro man slave named Prince j Samuel Banks, the negro man named Cuba. And that the said defendants do severally account for the hire and labor of the said slaves, from, such time after the death of Alexander Robertson the father, as they respectively came into possession of the said ne-groes; and that all just and reasonable allowances be made to them in such account.

HeNbt W. Besaussure,

From this decree there was an appeal on the following grounds:

This suit was brought to recover several negro slavee stated to be in the possession of the defendants, and for an-account of the use of them. The negroes were Sharp - er and Ursa and her children.

John Kennedy defendant, admits he is in possession of Suckey, reported to be a daughter of Ursa, and of two of Suckey*s children.

Joseph Robinson admits he is in possession of Sykes, reputed to be a rum of Ursa.

Simon Robinson denies being in possession of an/ negroes claimed.

Banks admits he is in possession of Cuba, called a. child of prsa.

M’Creight’s answer is unnecessary in this appeal. The defendants who answered, insisted that the negroes Were formerly the property of Alexander Robinson, deceased* who died in —— and that they held them *bf**483virtue of his will. — That said Robinson bought them of one Dr. Gharlton, (who is named in complainants’ bilí as having them, together with some right and interest in them) for a valuable consideration, and without any notice that other persons than Dr. Charlton liad any interest in them. They also insisted on the statute of limitations.

The complainant’s claim was founded on a bill of sale of James Munford, made 21st March, 1781, which shewed that in consideration of love, &c. to the children of Dr. Charlton, and in consideration of l,000i. Virginia money, paid by Dr. Charlton, he conveyed Ursa and Sharper and other negroes, to the said children, to remain in the possession of the said Dr. Charlton, till Arthur, the youngest of the children, should be 21 years of age.

To clear the case of the statute of limitations, the complainants proved, that they removed into Georgia about the year 1791, before Arthur came to the age of 21 years, at which age be did arrive in 1802 or before.

The complainants also gave in evidence, by Mrs. Munford, that old Mr. Robertson enquired of her about the title to the negroes before he purchased them, and that she told him the natsre of the title. She was examined by commission, and on this enquiry, she was asked if she knew Robertson ? and it appeared fully by her answer, that she did not and could not $ so that the result of her knowledge was, that some person, who she thought Was Mr. Robertson, asked her about the title.

To rebut the probability that he speculated on the chance of the title, or bought with such a knowledge, it' was proved that he was a steady honest laboring man, never accustomed to buy in such a way, or to risque, or wrong any person. It was also proved, that when lie-made the bargain, Dr. Charlton told him they were secure and good property j but that there was no discussion or mention of any reason why they might turn out to be bad property. That Robinson lived in Fairfield, and Dr. Charlton and Mrs. Munford in Camden; and the bar gain was made in Fairfield,

*484It was proved on the part of defendants, that Mr. Robinson paid the full value of the negroes, took an absolute bill of sale from Dr. Charlton for them in 1789, and used them till his death, about fourteen years ago, and that the defendants who took them by his .will, paid 15Í,’ a piece for them, by the terms of his will.

It appeared also, that the negroes in Dr. Charlton’p bill of sale, came, from the estate of a Mr. Hall, of whose •will Mrs. Charlton was an executrix, and there was no evidence that there had been any legal partition of Hall’s estate, or any act of the executors of Dali, to vest these negroes in Mrs. Munford, who claimed them under this will, and whose husband made the bill of sale. It was therefore submitted, that the sale by Dr. Charlton to Robinson, was a transfer by the executor of Hall’s will, and the first act that vested the negroes in any person ; and although the complainant now produced a bill .of sale by Munford, upon which it might be that Dr. Charlton had admitted Munford to have a disposing right 3 yet there was no evidence that he ever saw that bill of sale, or accepted property under it.

The defendants could not admit that Munford ever bad any right in the negroes, or that his hill of sale gave the complainants any fight.

This fact as well as some other material ones, depended on the evidence of Mrs. Munford j- and her evidence was objected to. on the ground of her husband’s interest, It was insisted that if the bill failed, especially if it failed for want of Mr. Munford having any title, lie would be liable, on the express warranty in his bill of sale,. *to*indemnify the complainant.

Mr. 'W’amburzec, without his wife, bad released’ Mr. Munford, and J. Charlton had also released him", (Some questions occurred whether these releases were sufficient) — ,Mr. Cleland, who was at first a party to the bill, had pot released Mr, Munford. His name,was on the bill at the time of trial, but it was found, that there Was leave, given by the court to strike it off.

The court admitted the evidence of Mrs. Munford, and deprepd for the complainants to recover the negrqee* *485the possession of Bank, Kennedy, Joseph Robinson, J3amui*l Miller, &c.

The defendants, therefore, appeal on the following grounds :

First, — That the case was barrnl by length of time.

FJRi’Y, 1814. *vs.*J'

Second, — That Mrs. Munford was an incompetent Witness.

Third,- — That on the question of Mr, Robertson’s having purchased with a knowledge of the- complainant’s supposed light, her testimony ought not to govern the case where it appears from herself, that she could not; have known Mr. Robinson from any other man.

Fourth, — Dr. Charlton had a right to sell those ne-groes, by virtue of his wife’s executorship»

Fifth, — The Complainants’ solicitor, having considered Mr. Clclaml and wife as no party to the bill, there should be a deduction in the recovery, for his right to the negroes.

Sixth,- — The suit ought not to have gone on, without Mr. Cleland and wife being made parties to the bill 5 and no fact was ever proved to the court, to shew that there was any reason to strike them out, except to carry through Mrs, Munford’s evidence, without a release front them.

Seventh, — That the defendants did not hold the negroes subject to any trust, so as to take the case out of the statute of limitations.

Eighth,- — .That they paid a valuable consideration for the negroes, without notice of any claim upon them.

Ninth, — It was not proved that the complainant» latdy came to the knowledge of their claim.

Tenth — There was sufficient and adequate remedy at law, if the complainants had any right.

The appeal was argued, and the court delivered the following judgment;

*Wo*concur in the decree given in this case by the Circuit Court for the reasons therein stated.

*486It is therefore ordered and adjudged, that the said decree be affirmed.

(Signed). Henry *W.*Desausscre,

Theodore Gaiuuard,

Thos. Waties,

*W. B.*James.

Judge Thompson

differing from his brethren, delivered the following opinion:

In this case there is no testimony conclusive to my mind to induce me to think there was either an actual orlegalfraud, and therefore the statute of limitations ought to prevail. The evidence of Mrs. Munford may have been founded in misapprehension, and there are circumstances to induce the supposition that she wras mistaken, or had forgotten; for no person who had any knowledge of Robertson’s prudence and circumspection, could for a moment suppose that he would have given the full value of the negroes, under a knowledge that he was purchasing only an estate for years. Moreover, it was proven by Mrs. Cameron, that at the time Dr. Charlton and Robertson were concluding the contract, the latter asked the former if the property was clear of all incum-brances, and was answered in the affirmative.

' *W.*THOMPSON.