#### SAMUEL EDWARDS et al. v. The Trustees of the UNIVERSITY.

The possession of a trustee, so constituted hy act of the parties, is the possession of his cestui que trust; and no length of possession, as such, will bar; hut if a party is sought to he constituted a trustee by the decree of a Court of Equity, founded on fraud or the like, his possession is then considered adverse, and the statute of limitations will be a bar.

Where a plaintiff alleges a disability which is to exempt him from the operation of the statute of limitations, it is incumbent on him to prove that it was a continuing disability, from the time the cause of action accrued.

The plaintiffs were the children and heirs-at-law of one John Edwards, who died in the year 1817, intestate. John Edwards was a non-commissioned officer in the continental service during the revolutionary, war, belonging to the North Carolina line, and had been regularly discharged. He being entitled by the laws of -the state to one thousand acres of military bounty land, the defendants suggested that he had died leaving no heirs, and obtained a warrant for the land, as having escheated to them. The bill prayed that the defendants might be declared to be trustees for the plaintiffs, and decreed to convey the land to them; and also for general relief. The defendants, in their answer, denied that they held the land', or had ever *326obtained a grant for the same. They admitted that a land-warrant for one thousand acres issued for their benefit, it being for the services of John Edwards, a corporal in the continental line of this state: but they alleged that they had assigned it to one Thomas Henderson, on the 11th day of October, 1821, for his own use and benefit,j and without any notice of the claim of the plaintiffs : that they had not then, nor at any time since the assignment, any interest in the warrant or grant of land obtained upon the same; and they relied upon the statute of limitations.

June, 1836.

From the proofs taken in the cause, it satisfactorily appeared, that the plaintiffs were the heirs-at-law of John Edwards, who had been a non-commissioned officer in the North Carolina line: that he was entitled to one thousand acres of land; and that he died in 1817, without ever having obtained his warrant; therefore that the defendants did suggest that he had died without heirs, and obtained the warrant for their own benefit on the 5th day of September, 1821, and assigned the same, without notice of the plaintiff’s claim, to Thomas Henderson, on the 11th day of October, of the same year. The bill was filed in March, 1831. Two of the plaintiffs were stated and proved to be femes covert; but at what time they married, or whether, at the date of the warrant, or of the assignment thereof, they were covert, and had so continued, was neither stated in the pleadings, nor shown by the proofs.

Pearson, for the plaintiff.

Badger, contra.

Daniel, Judge,

having stated the case as above, proceeded :—

The plaintiffs seek to make the defendants their trustees by operation of Jaw, and by a decree of this court. The defendants rely upon the statute of limitations, nearly ten years having elapsed since they obtained the warrant and assigned it, to the time of filing the bill. As respects trusts, the distinction in equity is, that if the trust be constituted by act of the parties, the possession of the trustee is the possession of the cestui que trust, and no length of possession as such will bar; but if a party is to be consti*327tuted a trustee by the decree of a Court of Equity, founded on fraud, or the like, his possession is then considered adverse, and the statute of limitations will run and be a bar. Hovenden v. Lord Annesley, 2 Sch. & Lef. 633. Cholmondely v. Clinton, 1 Tur. & Russ. Rep. 118, 119; 1 Chit. Prac. 759. As to the plaintiffs who were femes covert at the filing of the bill, but who are not shown to have been covert when the defendants obtained the warrant and made the assignment, the rule is, that when issue is taken on the plea of the statute of limitations, that the cause of action did accrue within a. certain time, the burthen of proof lies on the plaintiff, and he must prove a cause of action within the limit. Hurst v. Parker, 1 Bar. & Ald. 92; 2 Stark. Ev. 888. When it is incumbent on a plaintiff to prove that he laboured under a disability, which exempts him from the operation of the statute of limitations, he must show that it was a continuing disability from the first; for it seems to be a general rule, that where such a statute has once began'to run,‘no subsequent disability will restrain its-progress. 2 Stark. Ev. 901; 4 Term Rep. 309; 1 Stra. 566. The cause of action in this case arose in the year 1821: the bill was filed ten years after, viz. in the year 1831; at which latter period two of the plaintiffs were femes covert; but that they were so in the year 1821, there is no proof produced by the plaintiffs, on whom the onus lies: the statute of limitations therefore bars the claims of each and all the plaintiffs, and the bill must be dismissed, but without costs.

Per Curiam. Bill dismissed.