IN EQUITY.

#### Executors of William Jones v. Administrator of Thomas Person.

From Orange.

On a i..otion to dismiss a bill on the gioinsd of length of time, the (lou5 ¡ w Í5 coniine itself to the facts set foi-tii in the bill, and if from tin*)!, h can be ■ ollected that there was an actual or express trust subsisting- betwe -n the parties, it adheres to the settled rule, that as between trustee and cestui que trust in such case, length of time has no oiled.

Aliter in the case of an implied or constructive trust, which must be pursued within a reasonable time.

The original bill in this case, which was filed in March, 1799, set forth that in the year 1764, an agreement had been entered into between the Complainant: therein, William Janes, and one Thomas Person, whereby the said Person was to advance to Jones the sum of one hundred and twenty pounds, Virginia currency j and to secure the payment of the said sum with interest thereon, the said Jones was to execute to Person a deed in trust for 850 acres of land, in the county of Gran-ville ; that when the parties wrcre about to execute the necessary writings, Person suggesled that the trust on which the land was conveyed might be expressed in a separate writing, and not in the body of the deed } and accordingly an absolute deed of bargain and sale to Person was executed by Jones ; and on the other half of the same sheet of paper on which the deed was dra w n, was written a defeasance or condition, that if Jones did not repay the sum of money advanced, with interest thereon, when required by Person, the land should be sold by Person to pay himself, and the surplus, if any, was to be paid to Jones. The papers were executed in the presence of witnesses, who subscribed their names as such. The bill then charged the Defendant, Person, with having fraudulently destroyed that part of the paper which *270contained the defeasance or condition, and proving only the absolute deed of bargain and sale, whereby the .bill of sale only, was recorded. The bill further stated, that Complainant continued in the possession of the lands until April, 1776, after which time Person took possession thereof, and received the rents and profits to his own use j that during the time in which Complainant had possession, Person repeatedly offered him another tract, provided lie would remove from the land conveyed 5 that Person frequently told Complainant he would give him more for the land than any other individual would, and thereby diverted the Complainant from an advantageous sale, particularly to one Wade ; that the Complainant repeatedly requested Person to comply with the original contract, sell the land and pay himself, which was always refused by Person, who assigned as a reason for not effecting a sale, that the debt had so frequently been changed into proc. and Virginia money, that no one would buy with that incumbrance ; that in the year 1791, Person claiming an absolute right to the land, conveyed the same to one Samuel Williams, who is charged in the bill with notice of the trust and made a Defendant. The bill alleged, as a reason why earlier application had not been made to the Court, poverty and the false promises of Defendant.

The Defendant, Person, in his answer, insisted that he purchased absolutely and without any condition, the lands mentioned in the bill, for the consideration of more than two hundred pounds; that of this sum he paid the Complainant one hundred and twenty pounds, and agreed to pay the sheriff of the county the amount of a certain execution which he held against Complainant, in favour of one Wright, and also a bond on which the said Wright had commenced suit against Complainant j that the aggregate amount of this execution and bond made up the balance of the consideration for the sale of the land ¿ that the agreement of the Defendant to pay the sheriff and Wright, and Complainant's receipt for the sum of *271sue hundred and twenty pounds paid him, were written on the same sheet of paper with the deed of bargain and sale, and constituted what Complainant alleged to be a defeasance or condition. The answer admitted, that the deed only was recorded without the memorandum of the agreement, and affirmed the payment of the money to the sheriff and Wright, pursuant to the agreement. It alleged, that in the year 1768, (until which time Complainant had been permitted to occupy the land, rent free) Complainant became, and continued for some years afterwards, Defendant’s tenant, under an agreement to pay rent, a very small portion of which had ever been paid. It was admitted, that the land had been sold by Defendant to Williams, but it was denied that any had ever been made to induce Complainant from the land. The Defendant, in his answer, insist on the length of time during which the cl been permitted to lie dormant, otherwise than i lowing language, “this Defendant cannot “prised, that in case any condition had been annc^tHo “said conveyance from Complainant to him, that “plainant should have suffered the matter to lie dormant “so long.” Upon the issue joined on the plea of the Defendant Williams, the Jury found that he was a par-chaser for valuable consideration without notice, and he was discharged.

After the death of the Defendant, Person, the suit wap ¿revived against his administrator, and in April term, 1805, the executors of the Complainant were made parties to the suit; it did not appear that any other proceedings had been had in the cause until March term, 1811, when Complainants obtained leave to asuena iSseir hill.

The Complainants, in their amended bill, which was tiled in August, 1811, after reciting the substance of the former bill, shewed the death of two of the executors of William denes, and sot forth, that William .Jones, their *272testator, was illiterate and ignorant; that at the time of the agreement mentioned in the original bill, Person promised Jones, that if he would convey to him the land, he, Person, would reconvey it, provided Jones paid him the money advanced with interest, within a certain time j and further, that Person, imposing on the ignorance of Jones, induced him to believe that the condition mentioned in the original bill, was contained in the deed which he executed. It further stated, that Jones, for the space of twelve years after the execution of said deed, continued in the possession of said land, positively refusing to pay Person any rent,- and that at the time Jones executed the deed, lie was in the power of Person, who, as sheriff of the county of Granville, had in his hands executions against Jones, who being unable to satisfy them, was in the power and under the control of Person. But it did not charge the Defendant with assets. Defendant, in his answer to this bill, denies that Person ever made to Jones any promise to reconvey, or ever made any representations to Jones of the contents of the deed, inconsistent with the truth, and sets out in his answer a copy of the agreement or memorandum, which was signed by the parties. Any under influence on the pa. t of Person, is also denied, as is the fact of the poverty or ignorance of Jones, and the possession for twelve years, alleged in the bill, if true, is stared to have been by the permission of Person.

The cause having been set for hearing in the Court below, was removed by affidavit into this Court, and

Gaston now moved to dismiss the Complainants’ bill. This motion was made on the ground, that according to the shewing of the Complainants, there was no equitable title in Jones to the land, the subject in controversy, when the bill was filed. Whatever title had been in Jones, was annihilated long before the bill filed, by the lapse of time and the operation of the statute of limita-*273iions. Although this motion did- not mainly rest on the peculiar phraseology of our statute, it derived from that phraseology a strong auxiliary argument. The act of 1715 made seven years a bar, not merely to an entry, but to an action of every sort, declaring in its emphatic language, that “ all such possessions” (that is possessions of seven years, without disability in the claimant) iS should be a bar to all and all manner of persons, that “ the expectation of heirs may not Icavc.Iands unpossessed “ and titles so perplexed that no one will know of whom to buy lands.” It would seem, therefore, that it might safely be assumed as a postulate, that seven years possession could not have a less efficacy in protecting pos ■ scssors or in barring claimants, than a twenty years possession had in England. Although the Legislature, may not, in express terms, have applied a bar to equitable claims, yet it is a settled, incontrovertible principle, that Courts of Equity following the law, apply the same length of time as a defence against an equitable title, which the law provides against analogous legal claims. This doctrine is perspicuously and forcibly laid down by Lord Camden, in Smith v. Clay — (3 Bro. Ch. Rep. 639.) It is more fully and instructively explained in the cases of Bond v. Hopkins—(1 Scho. & Lef. App’x. 428,) and in 2 Scho. & Lef. App'x. 630. It is emphatically asserted by Lord Talbot, in Belch v. Harvey—(Sug. App’x. 19,) and by Chancellor Kent, in 3d Johns. Ch., Cases, 135. In the nature of things, there must be a complete correspondence between the rule which governs in Equity, as a law of that Court, and the rule which the Supreme Power of the State prescribes in analogous cases at Law, A Court of Equity, at liberty to disregard legislative enactments, would be a Judicial Minister» The moment a positive rule is prescribed by legislative authority on any subject, the same rule must be applied by Courts of Equity to analogous subjects coming under ¡heir cognizance. B<Tore the year 1784, lands descend*274ed to the eldest son in exclusion of all the other children j survivorship took. place in joint tenancy; estates-tail existed, and could only be barred by inconvenient methods; and all devises required the authentication of three witnesses. By the statute passed in that year, primogeniture in descents, and survivorship in joint tenancies, were abolished, estalcs-tail were converted into fee-simples, and the subscription of two witnesses declared sufficient to a devise of lands. In terms, the Legislature embraced only legal interests. Would a Court of Equity hesitate to. declare all these positive rules applicable in full force to equitable interests ? They must do so, because equity follows the law — and equity must also follow the law in applying its prescription of repose. A deviation from it would produce palpable absurdities. It has been settled, in the case of Reddick v. Leggat, that a purchaser with notice of a valid and complete outstanding title, is protected against it by a possession of seven years. Will the absurdity be tolerated, of declaring a possession of the same sort, and the same length, not a protection against an incomplete title — against a title defective in law, but good in equity: it will probably be insisted, that it is a maxim, that no length of time bars a fraud. Error lies in generalities. As an universal proposition, none can be less founded. Time runs not in equity against an undiscovered fraud. Until discovery, equity will make the fraudulent possessor a trustee for the deluded owner. But after the discovery of the alleged fraud, time runs as against every other claim—2 Sch. & Lef. 632, et seq.—Thompson v. Blair, (3 Mur. 588.) It is alleged in the bill, that the Complainant would have earlier preferred his claim, had he not been prevented by poverty and false promises of the original Do fondant. Where length of time operates as a positive, bar, no exceptions can be allowed but those provided in the rule itself. An exception founded on poverty, would be so vague as to destroy every thing like an uniform *275or systematic application of the rule. It is perfectly settled, that no exemption from tiie operation of a statute of limitations can be claimed on this ground — (2 Sck. & Lef. 039 — 3 Johns. Ch. Cases, 142.)

As to the false promises,” if any of them were relied on as giving a new cause of action, the Complainant was bound to set them forth in some definite shape, that an opportunity of meeting and testing the truth of the allegation might be had. Reference must be presumed to have been intended to those previously charged in the bill, as none others are set forth. These are explicitly set forth as previous to 1776, when the Complainant abandoned the possession.

That the objection now made may be used on the hearing to dismiss the bill, cannot well be questioned. An adverse possession in lands, not only destroys a claimant’s remedy, but annihilates his title, in this respect, there is a marked and essential difference between the operation of the statute of limitations on rights of entry, and on actions for the assertion of personal rights. With regard to the former, length of time need not be pleaded in law or at equity. If the claimant shews Siimself noi within the time, and states nothing to exempt him from the legislative prescription, he presents a case, void of title. It musí be conceded that this is the rule at law, It is equally so in equity. That a demurrer to a bill will lie on such a shewing is settled — -(2 Sck. & Lef. 637 — 1 Ves. & Beame, 537 — 3 j*. Wms. 287 — 4 Ves, ’tin. 477.) Whether the objection he good on demurrer or not, it will certainly avail on the hearing — (3 Bra, Ch. Ca. 646 — 2 Ves.jr. 92 — 1 Eq. Ca. Jib’d. 315 — 2 Ver. 340 — 3 Mur. 273.

These cases clearly establish that it is the law of a Court of Equity, that a party shall by bis bill bring himself within the time, or within some established exception, or shew some deliberate act of his adversary reviving the original, or creating a new cause of action.,

*276in truth, however, it may be contended, that the British rule of twenty years, operates against the Complainants. Allowing that the time during the war is not to jje compUtcd, from June 1784 to March 1811, when the present bill was filed, is a period of twenty-seven years. It is true, that a former bill was filed in 1799, but that bill was completely discontinued in 1804. It was abandoned for nearly seven years, and the present suit must be considered as commenced in 1811 — Bond v. Hopkins, (1 Sch. ‡ Lef. 434.)

Ruffin and Seawell for Complainants.

Ruffin. — It is admitted that if the bill filed in 1811 is but a consequence of the former proceedings, and not the commencement of the present suit, there is no pretext for dismissing this bill on the ground of the lapse of 20 years. The bill of 1811 was not brought for the purpose of reviving a former bill which had abated, but was filed simply to make proper parties in a suit which was already before the Court. During the period in which the original bill lay dormant, previous to the filing of the bill in 1811, Defendant might have moved to dismiss on the ground of want of prosecution, not however having done so, the case as commenced by the original bill, is now before the Court. The mere circumstance of lying dormant does not produce the effect contended for by Defendant, it is notan abandonment — Cotterell v. Purchase, (Talbot’s Cases 64.) If is not necessary here, as it is in England, for the Complainant to shew that he has been in possession within the period fixed by the statute of limitations, even if the statute applied expressly to equitable rights } the Defendant must shew, in order to bar a claim at law, that he has held the uninterrupted and continued possession of lands for 7 years. If, then, in this case, we proceed in the strictest analogy to the law, as regards time, it will avail the Defendant nothing, for it does not appear in the case that'he ever had such continued, uninterrupted possession*

*277The question before the Court is simply this — Is seven years a bar to the prosecution of an equitable claim in Sorth-Carolina ? In answer to the enquiry, I may with propriety remark, that it has for years been the settled conviction, that the period of twenty years has always been allowed in our Courts of Equity for tiie prosecution of such claims, witness the very common case of a mortgage, and the inconvenience which will result at this time from the adoption of a different rule, should forbid the alteration. It is not denied, that Courts of Equity are stated in the English books to have adopted their rule in analogy to the statute of James, but it is apprehended that before the statute of James, a similar rule prevailed. In other cases, we know that they have adopted what they considered a reasonable period for the prosecution of claims. We are apt to be misled when we reason from analogy in matters of law. The period of 20 years is not taken in the English Courts because the statute makes that time a bar to legal claims, but only in analogy to the statute j and the dicta of Lord Camden and Lord Bcdesdalc, that equity will vary the time so as to accord with the period limited by statute, are of no authority, because as there has been no change by statute in England since 1624, there can be found no adjudicated cases in which such an alteration has ever been made. The only true ground on which the Courts of Equity have ever formed a limitation to suits as regards time, is, that they must he brought within a reasonable time. Take, for instance, the common case of a mortgage : the mortgagee is barred in 20 years — why ? Because if be proceeds at Law, not having entered within 20 years, he could not recover, and if he sought satisfaction of his debt on bond, he could not recover after 20 years, yet in this latter case, the statute of limitations does not bar his claipi, hut it is stopped by the presumption of law, that, lis the lawful interest at the time of the adoption of the rulo, -vix. Jive per cent, will in 20 *278years amount to the debt, no bond will remain unpaid for 20 years. If the period fixed at Law by the statute of limitations affected Courts of Equity, as Defendant contends, then a mortgagee should never be barred, for the mortgagor is his tenant at will, and with a tenant in possession, no man is barred by the statute; yet we know that Courts of Equity do not permit a mortgagee to proceed after 20 years. If a mortgagee is barred in our Courts of Equity after a period of seven years, as Defendant insists, it is a strange inconsistency to permit him, as we do, to recover on his bond at any period before the lapse of twenty years. The fact is, that the analogy so strongly urged will not hold throughout, and probably the accordance in length of time, with the period fixed by the statute, was originally accidental. This Court has most clearly recognised a distinction between that bar which is created by statute, and that which arises from presumption of Law. In cases where Law and Equity have concurrent jurisdiction, both forums proceed alike as to the, question of time; the maxim then applies, Equity follows the Law. But where Equity has exclusive jurindiction, the maxim is, that Equity respects time — (! Law Rep. 508) — Bell v. Beaman, (3 JtTurpkeifs Rep.') It has also recognised the rule that reasonable time is the ground on which Equity stops a Complainant, and not becwss® of the siatut& — -Hamilton v. Smith, (3 Murpkcy 118.) The case of Walter and Crutcher, determined souse years ago, and never reported, confirms the same doctrine. It arose on the mortgage of a negro, and though the length of time was much greater than the statute allowed, yet the bill was not dismissed by the Court, and the cause went oil on another ground., The idea is not a singular one, for it may be found sup ported by a decision? in Yirglj^a — (1 Wask. Eep. 18.) Time Is not considered because ofh'jjc statute, but only as laying a foundation for a presumption — Higginson v„ Mein, (4 Crunch 414.) It will scarcely be contended. *279tliat in onr Courts of Equity, an account by an executor ?,g protected after the lapse of three years, and yet at Lave the same lapse of time would bar an action on it.

As to any supposed points of difference between our act of limitations and the statute of James, it is believed that our statute-can by no reasonable construction be made So apply to any thing but legal estates. The third clause of the act of 171?, will be well satisfied by construing it to intend the barring of writs of right. The matter, however, resolves itself into tils alternative, viz. ihe statute does bar an equitable remedy, or it does nott if it does, then it should have been pleaded or insisted on, in the answer — (Cooper's Eq. 254)- — if it does not, then it can have no application in this case.

SeawelL — The objection raised is, that tito transaction, as stated, is so stale, as, on that acmiui, to render it improper, consistently with the known rules in equity, to be relieved against. TEie principien in regard to lapse of time appear to lie within a narrow compass. As Ibis? is a motion to dismiss, it musí be considered ia the nature of a demurrer ¿ and those principles are held to be applicable: 1st. That where time is neither pleaded os* insisted on in the answer, it is but ¡natter of evidence, and is to have its weight with the Jury, in deciding upon the facts forming the ground of equity, and when they are. doubtful will be respected ; but that in no case doer it form a specific bar, propria jure, unless pleaded or insisted on in the answer — -(1 Mh. 494.) In our Courts of Equity, the facts are, peculiarly and exclusively the province of the Jury, ¡act of the Court 5 on a motion, therefore, to dismiss, the Court is not authorised to grant it, any more than a Court of Law is to pass judgment for want of evidence. In a Court of Chancery, empowered to decide upon the facts, there possibly ¡nay fee a, case so stale, as to induce the Court to look into it for Ihe purpose of ascertaining whether there be spy evi-*280¿fence to repel the strong presumption arising from the antiquity of the claim, and if there be none, further investigation is rendered unnecessary, by dismissing the bill; but it is apprehended the case is otherwise here.

2dly. That this is such a case as not to be affected by lapse of time : this is a direct trust, constituted by the act of the parties, and is not an application to the Court to convert the Defendant into a trustee ; according to the bill, there was created by the deed, the relation of landlord and tenant between these parties, and by the deed also Person ivas to hold the land only as a security for the re-payment of money to himself,* it was purely a pledge, and no time will bar it — Thompson v. Blair, (S Murph. 588 — 2 Scho. & Lef. 631.)

3dly. If this were a case in which a Court is called on to convert a legal owner into a trustee, still lapse of time would not avail the Defendant, even though pleaded or insisted on, for the transaction, if the bill states the truth, is a gross fraud from its commencement. AY bat have Courts said heretofore in cases somewhat analogous to the present in their features of fraud ? In the case of a mortgage deed, requiring mortgagor to redeem in his own life, or with his own money, or on failure, making the deed absolute, Courts have said it is a fraud, and no length of time shall be a bar — (Talbot’s Cas. 63) — Orde and Smith, (Select Cas. Ch. 9, 10 — 1 Johns. Ch. Ca. 594.) But it is said, that this is the common case of an application to redeem a mortgage, and as in England twenty years would be a bar to such an application, from analogy to the statute of limitations, by reason of the same analogy, seven years should be a bar here ,• and that if there be any fraud, length of time begins to operate from the time at which the fraud is discovered, and cases have accordingly been cited to shew that a bill may be so framed as to make the lapse of time a bar on demurrer. To this it is answered, 1st, that in ordinary cases of mortgage, the Court is called on to convert the mortgagee, *281who by the terms of the contract has become the absolute legal owner, into a trustee, on account of the substance of the contract. 3dly. It does not appear from the bill in this case, that according to the terms of the deed, and trust originally written on it, the estate was not redeemable when the bill was filed ; and as that trust cannot now be produced on account of the fraud of Defendant’s intestate, every thing will be presumed in odium spoliu-laris. The bill here is not founded on a fraud, hut upon another head of jurisdiction, viz. trust: the application is for relief because of the terms of the original contract, the fraud alleged is in the destruction of evidence as to what that contract was; and the case does not arise here on account of its destruction, for if we had it, performance could be enforced only in equity. Length of time may cast a shade over our evidence and increase the difficulty of proof, but if we can prove the terms of the contract, no time will bar us. Sdly. The assertion that a bill may be so framed as to admit a demurrer for lapse of time, was but an obiter dictum, and it has been held otherwise by Lord Thurlow, in JMoraine v. Brown, (3 Bro. Ch. Rep. 639,) and by Lord liardwieke in Jlggas v. Pickerille, (3 Mk. 225,) and the reasoning of Hard-wicke, in the last cited case, is believed to be unanswer - able. But it has been insisted in this case, that the poverty of Complainant forms no excuse for his delay, and a dictum, only to that effect is cited. The distinction between those cases where Law and Equity have concurrent jurisdiction, and those where the jurisdiction of Equity is exclusive, has already been adverted to j in cases of the latter description, though length of time be not a statutory bar, yet the Court will respect lime. Why ? In analogy to proceedings at Law, where the matter offered is not per se a bar, but as a circumstance from which something .may be inferred, destructive of Plaintiff’s demand, as payment, satisfaction, &c. Thus ’« the case of a bond — after twenty years without any *282recognition by obligor, or any act from which it may be inferred, payment is presumed ; yet this presumption may be rebutted, and it is well established at Law that y,e poverty of the Defendant is a good excuse for the obligee in not demanding payment: now the analogy must be pursued throughout, and Complainant’s poverty should be a sufficient excuse for his delay, if it will repel the idea of his abandonment, or if its existence will in-contestibly prove that the demand hasnot been satisfied. If to this it is answered, that the act of limitations contains no proviso for cases of poverty, I reply, neither is there any as respects actions on bonds, it is but a presumption raised by construction of Law. Principle would seem to dictate, that in those cases in which Equity was not imperatively bound by statute as to time, every thing should be considered which in point of reason was calculated to delay or excuse the Complainant | and no better reason could possibly be given for not sooner coming into Equity for relief, in this case, than circumstances which, being matter of history, will be judicially noticed by the Court. At the time Defendant took possession, Courts of Equity had no existence in North-Carolina, they were created in the year 1782 ; the period from 1776 to 1784 is not reckoned in computations of time at law, and from 1784 to the filing of this bill is but 15 years. If the period of seven years is to be considered in this case for the first time a bar to equitable demands, in analogy to our statute of limitations, this court of conscience will establish a rule esc post facto in destruction of an honest right, and in favour of a Defendant admitted to be guilty of the foulest fraud, when, at the time this bill was filed, and ever since up to the present day, it has been uniformly understood that no period short of twenty years would bar such a demand as the present. This bill may be considered as similar to a bill calling on Defendant to account, and In Prince v. Meylm, (1 Mk. 494,) which was a bill for a*. *283account, from 1731 it will be found that relief has been refused in cases which, in the words of Ld. Qardvvickc, are very stale, but that a case is not to be deemed such merely because the period fixed by the act of limitations has elapsed.

Gaston in reply.

The authorities cited do not estab - lish the point, that the bill of revivor of 1811, can be regarded as a mere continuation of the original bill. The case of Cotterell v. Purchase, from Talbot, shews that no laches pending a suit will avail the Defendant, but it furnishes no criterion for deciding whether a suit be hi fact discontinued. The case in 18 Vesey, 460, must have been quoted by mistake. 14 is an authority to prove that. tiie dismission of a former bill for want of prosecution, will not bar the filing of a subsequent bill for the same cause. 15 ut it proves nothing that has a bearing on the present question.

In opposition to the motion, it is at one lime urged that it takes for granted what the hill does not state, a seven years possession of Person adverse to the claim of Jones. The bill is not indeed characterised by the most explicit language, but its meaning in this respect cannot be misapprehended. It charges that lúa-son having destroyed the defeazance, set up an absolute title to the land ; that shortly after Jones abandoned the land, in 1776, Person entered into the possession thereof, and took the profile thereof to his own use, until 1791, when he sold and con veyed the same to Williams. it is wresting the meaning of the Complainant, it is torturing his words into a sense repugnant to his claim, to represent him as aS tegiug that the possession of Person was in ailis-mance of Complainants right. His allegations are, that according to the contract, Person had no title to the possession — that the convey anee, whatever its form, was a more security for money- — that Person’s possession was ,-s, --obtained to/ stratagem - -and wr hostile to the *284Complainants right. The bill is not filed to compel a man who had entered under a trust to execute that trust. It calls upon this Court to make a man a trustee who ^Q0|c f:jie jan¿ as owne,r — and it asks the Court to do this, because this his taking of possession, was fraudulent. Possession of trustee does not bar cestui que trust, because it is the possession of cestui que trust, as much so as that of tenant fur years or at will is the possession of the proprietor of the land. But there never was a moment when Person’s possession was a possession for Jones, it was always in affirmance of a claim, which Jones alleges indeed to be fraudulent and unfounded, but of a claim under an absolute conveyance, and of a claim in direct opposition to the right asserted by the Complainant. There is no similitude between the relation which exists between executor and legatee, or administrator and next of kin, and that supposed between the present parties. And even if there ever had been a trust in regard to the possession, the moment the trust is thrown off, and the character of ownership advanced, the possession becomes adverse. Thus is it in regard to mortgages 5 for it is settled in them, that a receipt, of rents and profits for twenty years by the mortgagee, bars the redemption. The argument urged that the seven years adverse possession must bo pleaded, has been already anticipated and refuted. Who ever heard of the act of limitations being pleaded to an action of ejectment ? If unnecessary to be set up as a defence at Law, where is the pretence for such a necessity in Equity ?

But it is alleged, that for aught that appears to the contrary, the Complainant, by the terms of his contract, might have had all his life-time to redeem, and that the Court will presume this or any thing else in odium spo-liator is. The maxim referred to authorises a presumption of fact to supply defective proof — But no zeal against a spoiler can suggest allegations which the injured party does not make. Be it so, however — Suppose, no time *285prescribed in the contract for redemption, yet this right to redeem, like every claim to land, legal or equitable, has been destroyed by the legislative prescription, a seven years adverse possession. It has no resemblance to the case of a pawn. By the very nature of the contract, the. possession of tSie pledge is confided to the pawnee, and while he holds that possession, he holds it consistently with the claim of the pawner — -ICemp v. fFesI brook, (1 Ves. 2"8.) But here according to the con-Iract alleged between the parties!, Person never had a jidndary possession there was no trust created by the deed, by which lie was to hold for the benefit of J ones ; and the taking of possession was an act disavowing and repelling the claim here advanced. Kow Person can be made, by direct trust, to stand towards Jones in the relation of tenant to landlord, is not shewn — -and is unidi snore easily asserted than shewn. The only trust that ever existed between the parties with respect to possession, was while Jones held the land. Mis possession was subject to Person’s lien, was consistent with that lien, and might properly be regarded as a possession of a tenant at will, which was u> fee abandoned whenever a sale was made. But after Jones left and Person took the land, every relation of trust between them ceased, and they became towards'each other hostile claimants.

It is strenuously insisted, that the act of 1715 does not in words embrace a suit in Equity, and that the comprehensive words “ enter and make claim,” “ entry, claim or action,” “ all and all manner of persons,” may be satisfied by supposing them to exclude every mode by which a legal claim to land could be asserted after seven y ears. Perhaps this explanation may be correct — but what avails it l it is the spirit which quickcneth — Use words profit nothing. Shall a Court of Equity refuse obedience to the will of the .Legislature, because that will is recognised only in the spirit of its injunctions r Will such a Court be content to give the Legislative will only mouth honour ? it should be their highest *286pleasure, as it is their bounden duty, to make their rule of decision a1 ways analagous to the Legislative rule. As the rule of Law, from considerations of public policy, shall be made to change from time to time, the rule of Equity must accompany it in its mutations. No position ever was better established by authority. It was so decided .in 1721, in Hollingshead’s case, (IP. Wins. 744,) in 1729, in Knowles v. Spence, (1 Eq. Ca. Mr.') in 1731, in Jcnner v. Tracey, (3 P. Wins.) in 1736, in Belch v. Harvey, in 1746, (3 Jltk. 313,) in 1767, Smith v. Clay, in 1786, Beckfiord v. Close, (the appeal from Jamaica,) in 1792, Corbet v. Barker, (1 Mis. 142,) in 1793, Lytion v. Lytion, (4 Mro. 458,) in 1799, Handy v. Meeves, (4 Ves.jr. 475,) in 1806, in the cases cited from Schoale & Lefroy, and in 1813, in Hadle v. Ilealy, (1 Ves. Sf Bea. 537.) There has been an uninterrupted series of judicial decisions in the English Courts of Equity for a century, declaring that Equity observes the statute of limitations, from analogy to the Law, and in obedience to the spirit of the Law-makers. Such has been the language of Macclesfield, King, Talbot, Hardrwicke, Camden, Kenyon, Eyre, Loughborough, Mvanley, Redesdale, and Plvmer. Are we now to be told this was all a mistake i that there is no such principle in Equity ; that the true principle is, that Equity merely respects time ,• and that the period of twenty years is fixed upon for the same reason that twenty years non-payment of interest on a bond furnishes a presumption of payment ?

This age has many claims to illumination — but when it undertakes to find out a reason for an unvarying series of decisions made by the greatest Judges for one hundred years back, and a reason till now utterly concealed from the world, it may advance a claim also to presumption and temerity. The doctrine laid down by the English Chancellors is expressly sanctioned, as has been seen, by Chancellor Kent, in New-York, and by the Supreme Court of the United States, in Rieardv. Williams* (7 Wheaton 109.).

*287But an opinion has prevailed, it is said, that a less period than twenty years would not bar the redemption of a mortgage, and this opinion is now so established, that it would be pernicious to the community to disturb it. Before too ready a submission is yielded to this consecrated error, it may be expedient to ascertain its extent. Does it adopt the enacting part only of the British statute of limitations as the rule, or does it adopt also the exceptions ? According to the English statute, ten years are allowed after the removal of the disabilities of infancy, coverture, insanity raid residence beyond seas, for the assertion of a claim otherwise barred by time. Our act of Assembly allows three years only after the removal of infancy, coverture, and insanity, and protects persons beyond seas, provided that they bring suit, at all events, within eight years from the cause of action accrued. An error is not to he followed further than it has become inveterate. If this vague arbiter <s opinion” has not decided on the exceptions, the law of the land may, it is humbly supposed, be permitted, in this respect, to have its course. What a piece of patchwork, of strange incongruities will thus be exhibited ! The bar to the assertion of an equitable title will be found in the statute of James' — and the exceptions in our act of 1715. The former gives every one twenty years $ and the latter, by way of special protection to persons beyond seas, saves their claims if brought forward within eight years. Miserable indeed is the condition of our jurisprudence, if it depends on the fluctuations of opinion. Where are thv judicial decisions which have settled the rule ? They are called for in vain. They cannot be produced, because they do not exist. Hamilton v. Smiths (3 •Hur. 118,) lias no bearing on this question. It says, and says truly, that a great length of time will prevent even the inx.esti gation of fraud, but is silent on the point what time will bar relief after fraud investigated and ascertained. 3». Bell v. Beaman., (3 Mnr. 9,78,) the Court evidently refer *288to the doctrine here asserted, when they say, ie Equity frequently acts in analogy to the statute.” The question is said by the adverse counsel to have been raised in Walker v. Crutcher, a case not in print, but is admitted to have been decided. Such was the fact also in Shepard v. Murdock, (3 Mur. 218.) The case of Ben-iziien v. Lenoir, (1 Law Hep. 508,) is relied on. It is known that this case is yet in fact sub judice, as a petition for a re-hearing has been filed, and is now on its way to this Court. The decision there made may be supported, however, without resorting to the ground that a Court of Equity is only bound by the statute of limitations when it acts concurrently with a Court of Law. This ground cannot be taken without an open conflict with the case of Thompson v. Blair, (3 Murphey 582.) Every principle now contended for is there asserted by the Court. The subject on which the Court acted was of purely equitable cognizance. The decision was made •“ in obedience to the will of the Legislature, expressed in the act of 1715,” and not in obedience to the will of the British Parliament expressed in the statute of James. The equitable title of the Complainants was there viewed as subject to the act of 1715, unless protected by the rule that exempts trust and fraud from the operation of the act. Tiie possession there declared a bar, was the possession of one whom nature, office, and original act should have made a trustee, bat it was a possession taken as owner, though fraudulently taken as owner. It was not impugned within the time specified — and though every feeling of justice cried out against its validity, the Court obeyed the will of the Law, and dismissed with costs an attempt, after the prescribed time, to set it aside. They would not be wiser than the Law, nor in their solicitude to advance right in an individual case, nullify a statute which is the best security of titles, and on which, more than any other, depends the repose of the commu - nity.

*289Taylor, Chief-Justice.

This is a motion to dismiss tbo bill, on the ground that the Complainant has not prosecuted his claim within seven years, in analogy to the- statute of limitations, which bars an entry after that period. Whether that role is applicable to tills case, must he ascertained by a careful examination of the charges contained in the bill, which, for the purposes of ¿his motion, must be considered as true. [Here iie stated the material parts of the Bill.]

These facts present two enquiries: 1st. What is the character of ihe original transaction ? 2d. Has it undergone any change ?

1. By the terms of the contract, made before any writings were drawn, Jones agreed to give Person a deed of trust for a tract of land worth B^OOO, to secure the- re-payment of the money borrowed, which was less than {Í400. Afterwards, when the deed was executed, Person undertook in sell the laud, if the money should not be repaid upon demand. His frequent promises to Jones that he would give more for the land than any oilier person, diverted the hitter from an advantageous sale, several of which were proposed to him, and particularly one by Andrew Wade. From the inadequacy of ihe price, a strong inference arises, that the sale was not absolute; the repeated premises of Person to make Jones a.title for 300 acres of land iu Granville, if he would surrender the possession and confirm the title, could proceed only from :t consciousness that Jones had a valid equity ; and iu addition to this, the various en-deavours made by Person to procure an acknowledgment of the absolute deed without the trust, and the singular pretext for not effecting a sale, that the debt had so increased by its frequent com endow Into yroc. and then into Virginia currency, that no one would buy with that incumbrance, produce all together an irresistible conviction, that Person was a trustee by his own express assent, and consequently not protected by the lapse of lime--(17 Vesey 97.) A Court of equity constantly re-*290cognises the settled distinction between actual trusts and trusts by implication; the latter must be pursued within a reasonable time ; but in the former, as between trustee am¡ cesjui qUe trust, length of time has no effect; that is very different from the case of a constructive trust, which this Court allows a man to establish, by facts and circumstances, at any period after it happens. And even where length of time would render it diflicult to ascertain the fact, as wei! as where the fact is easily ascertained, and relief would have been originally given on the ground of a constructive trust, it is refused after long acquiescence j and this from the danger that would otherwise arise to the security of property. “ If a trustee is in possession, and does not execute his trust, the possession of the trustee is the possession of the cestui que trust; and if the only circumstance is, that he does not perform his trust, his possession operates nothing as a bar, because ids possession is according to his title : just as in the case of a lessee for years, though he does not pay his rent for 50 years, his possession is no bar to an ejectment after the expiration of this term, because his possession is according to the right of the party against whom he seeks to set it up” — (2 Schoale & Le-jroy 633.)

2. Taking it then for granted that Person was in the inception of this transaction, a trustee by express contract, for Jones, has any tiling occurred to exempt him from the responsibilities of that character ? His having committed the absolute deed to registration, without the trust or defeasances (I confine myself strictly to the bill) was a fraud too gross and palpable to meet with a construction in tiie least degree favorable in this Court. There are many cases where a person, who is not a trustee originally, shall be constituted such by a decree of a Court of Equity founded on the fraud, and in such cases, length of timo will bar from the discovery of the fraud. Hut it would be an absurdity that a fraud superadded to a trust should extinguish or merge it; that, men should. *291be encouraged to commit crimes as the certain means of eluding their contracts. Nor can tins pretence be re-eoncilcd with the doctrine of Equity, that if a mortgagee, executor, trustee, tenant for life, &c. who have a limited interest, gets an advantage by being in possession, “ or behind the back” of the party interested in the subject, or by some contrivance or fraud, be shall not retain the same for his own benefit, but hold it in trust: that a trustee shall gain no benefit by any act done by him as trustee, but that such benefit shall accrue to his cesiui que trust; nor shall he purchase part or the whole of the estate of which he is trustee — (1 Ball & Beatly. 46-47 — 2 Ball & Beatly 290-298—1 Brown 193—1 Ch. Cas. 191—5 Ves. 707.)

All these cases proceed on a rule of general policy, to presume the possibility of fraud and abuse, since trustees, from their situation and the knowledge it enables them to acquire, may be induced to take advantage of their cesiui que trust. It might be sufficient to test this by the principles of natural justice and the instinctive suggestions of every man’s moral sense, even if there were no decided cases, for every honest mind would revolt at the bare statement of the transaction as set forth hi this bill. Jones left the possession In the confidence of Person’s promise to make him a title to 300 acres of land in Granville county, and Person obtained the possession by means of that promise. This I take to be the fair construction of the bill, though it is not so stated in precise terms. Now if Person had complied with his •promise, the trust would have been executed, and Person’s possession be thenceforward adverse to Jones’s | but while it remained unexecuted, Person was still the trustee to Jones, under the first agreement. Until he made a deed for the Granville land, he was still bound to sell Jones’s, under the original agreement, and the possession he acquired must enure to the benefit of Jones, The possession comes from, the r’"’"v : o ;t with the title. *292an(l js bound by the same equity, otherwise the nature of the contract might be changed, and the rights of the Complainant be destroyed by a trick of the adverse pai> * ty. If a trustee holds a lease for the benefit of cestui que trust, and avails himself of his situation to obtain a new lease, he shall hold it for the benefit of cestui que trust— (1 Douglas 269.) So if a guardian takes a renewed lease for lives, the trust follows the actual interest of the infant, and goes to his heir or1 executor, as the case may he — (18 Ves. 274-—2 Johns. Ch. Ca. 33.)

Under this view of the case, founded on the facts stated in the bill, I am of opinion that Person continued to be a trustee for Jones, under the original agreement, as long as he held the land, and that he is liable as such, notwithstanding the lapse of time.

Hall and Henderson, Judges, concurred.

On the several issues submitted to them, the Jury-found that there was a written agreement annexed to the deed, in the nature of a mortgage, by which Person was to sell the land, pay himself) and return the surplus to Jones, if Jones did not pay the sum advanced by Person when called on, and that Person fraudulently destroyed this agreement. The Jury also found, that the actual consideration of the conveyance from Jones to Person was four hundred dollars ; that there was no additional contract between'the parties, by virtue of which Jones surrendered the land and Person took possession thereof in 1776, but that Person proposed to Jones and agreed to give him two or three hundred acres of land in Gran-ville county, in the year 1776; — that tiie land was worth at the time of the conveyance to Person by Jones, $1000 s that in the year 1776, the value of the land was gl660 5 in the year 1791, at the time of the sale to Williams, it was worth g2333, and in the year 1799, when the. bill was. filed, it was of the value of 82839. The Jury fur *293íhtr found, that in the year 1781, after Person had taken possession of the land, Jones demanded of him a compliance with his proposition to convey to him land in Cranville, which Person at that time declined performing, hut promised to do it at some future period.

On this finding of facts,

Itujjin moved for a reference to the Master, to ascertain the amount of mortgage money, with interest there-t®, and to report the balance due Complainant after satisfaction of the mortgage.

(¡Uision opposed the reference, contending that no decree could be rendered against William Person, who was not originally the Defendant, but was made so as administrator of Thomas Person $ that as administrator lie was chargeable in equity only by reason of the fund which he held in that capacity $ that the bill in ibis case did not charge him with assets, and therefore Defendant could not deny assets, in his answer, without impertinence- — (Coop. Eq. 69, 70 — Miiford 59)- — that the question as to time, which the Court had not deemed it necessary to examine in deciding on the motion to dismiss, again presented itself, for nothing in the finding of the Jury brought this case out of the rule of 7 years, for which lie contended 5 that the mortgage, as found by the. Jury, was in the nature of a Welsh mortgage, and that in such mortgages, a possession of twenty years, after the purposes of the trust were satisfied, would be a bar— Yates v. Hambly, (2 Atk. 360.)

To shew that length of time, in this case, operated to prevent Complainant’s recovery, he referred to the following additional authorities- — 3 Atk. 458—Beloraine v. Brown, (3 Bro. Ch. Ca.) explained in 2 Ves. jr. 90, 92—. Perry v. Marston, (2 Bro. Ch. Ca. 399)-Lake v. Thomas, (3 Ves. jun. 17)-Beckford v. Close, (4 Ves. jun. 476-7.)

*294He insisted further, that the Complainants were not entit!ed to the money, for Jones had an equitable interest in the lands, which descends as a legal interest would ; pC1.sonaj representatives of Jones, therefore, are not entitled, but the heirs al law. At all events, time should be taken into consideration in the account of the rents and profits.

Ruffin and Seamell replied,' that Complainants were entitled to a decree. An administrator is not liable beyond assets, but in this case, under the laws of North-Carolina, Complainants were entitled to an execution de bonis testatoris, but they might, if they chose, move the Court for an account of assets, and as it was incidental to the case put in the bill, they were not bound to charge assets specifically. A decree might, in the first instance, be made 'personal against an administrator having assets, but it was most regular to take an account — (4 Hen. & Mun. 490.) As the administrator here had not denied assets, it was, as in cases at law, an implied admission of them. The correct rule, it was urged, was, that when an administrator intended to deny any responsibility, he need not deny assets, but when he admits his liability, he must avoid by denying assets. As to the question of time, the fraud found by the Jury was a sufficient answer to any objection on this ground ; if it were not, then the fact, also found, that the parties, by agreement, stood in the relative situation of trustee and cestui qué trust, prevented the operation of time as a bar. The cases relied on by Defendant, it was said, were not applicable, and time should not operate in the account of rents and profits, because it was the duty of Person to keep a regular account, and bis fraud and negligence have occasioned the difficulty in ascertaining rents and profits — Complainants were entitled to them from 1776 to 1792»

*295Per Curiam. —Let the. case be referred, and the Comí afterward:-; decreed according to tl>e report of the -Taster,against the Defendant, to be satisfied de, bonis 'U’Jestuti.