author: Mr. Chief Justice ENGLISH

text:
    Sullivan vs. Hadley et al.
    Although, a deed of trust confers upon tho trustee the power to sell, upon failure of payment, he may resort to equity to foreclose and sell the trust property; and perhaps that would he tho more appropriate course, where, hy a removal of the property, the notices of sale prescribed by tho trust deed could not bo given.
    "Where tho complainant’s remedy is barred by limitation on the face of tho bill, and he fails to allege any matter in avoidance of tho defence of limitation, and the answer contains a demurrer to tho bill, the objection will be fatal on tho hearing.
    It is a general rule, that whore there is a legal and an equitable remedy, in respect to the same subject matter, the latter is under the control of tho same statute bar as the former.
    Where a mortgage or trust is upon slaves, and the mortgager continues in possession after default of payment, the mortgagee or trustee has tho same timo to bring a bill to foreclose and sell, that is allowed him, under like circumstances, to commence an action at law for tho possession of the slaves: and tho limitation to such action is three years.

      Appeal from the Union Qi/reuit Qoivrt in Oha/neery.

    Hon. SheltoN "WatsoN, Circuit Judge.
    CarletoN, for the appellant.
    This deed in trust conveyed tbe legal title to James Hadley, and, by construction, possession also of said slaves, and his remedy at law, by replevin or detinue, was complete to get possession, had he been deprived of it, and in such case equity has no jurisdiction. Story Eq. PI. 473/ Mitf. Eq. PI. 123/ Oooper Eq. PI. 124.
    He cannot found the right to come into this court on the ground alone that an advertisement in the paper mentioned in the trust, would he ineffectual, without an allegation, that he had applied
      to defendant for bis permission to publish in some newspaper published here that would be effectual, and defendant refused. Especially as defendant had, as the trustee alleges, removed from Tennessee to this State with his knowledge and implied assent.
    Said note or bond, and the said trust deed, were procured by fraud and falsehood. (This point was argued at some length).
    Defendant pleads and relies on the statute of limitation. The 11th section of Revised Code, chap. 41, p. 528, which went into force 20th March, 1839, and which was in force at the date and maturity of this contract, says: “ All actions not included in the foregoing provisions shall be commenced within five years after the cause of action shall have accrued.” Under this provision, a right of action on the bond and deed in trust in this case, was barred in five years from the 20th December, 1842, the date of the maturity of the bond or note, and deed in trust. Watson vs. Higgins, 2 Eng. 475/ Dickerson vs. Morrison, 1 Eng. 264/ Baldwin vs. Gross, 5 Ark. 510/ Oouoh vs. McKee, 1 Eng. 484/ Omryp-bell vs. Hawldns, ib. 513/ Lucus vs. Tunstall, ib. 443/ Dave ex., use, dec., vs. Sullivcm, 2 Eng. 449/ Walker vs. Bank Miss., ib. 503/ Ola/rk vs. Same, 3 Eng. 220/ Wilson vs. Kelley & Go., ib. 507/ Hensley et al. vs. Moore, 4 Eng. 69/ Calvert use of Dawson vs. Lowell, 5 E%g. 117.
    James TIadley’s right to sue in detinue or trover on his title, created by said deed in trust for said slaves, was barred by the same clause: “all other actions not included in the foregoing provisions,” &c., and by parity of the reasoning in the above authorities.
    And all his legal rights to sue being barred, his equitable one is also. Kome vs. Bloodgood, 7 John. Oh. Rep. 90/ Allen et al. vs. BeaVs heirs, 3 A. K. Ma/rsh. 554, {side page) / Breckenridge vs. Ohv/rchill, (Ssc., 3 J. J. Ma/rsh. 12/ Hurry et al. vs. Coster, 20 John. Rep. 576/ Roosevelt vs. Ma/rk, 6 John. Oh. R. 266/ Sims vs. Ga/nfields ex., 2 Ala. N. S. 555/ Humphrey vs. Terrell, ib. 651/ 2 Story’s Eg., sec. 1520, and notes and authorities there cited, (4th Edition).

      Mabe & HaRdt, for appellees.
    That complainants had a right to resort to a court of equity, for the purpose of foreclosure and sale, notwithstanding the power of sale conferred on the trustee by the terms of the trust, we refer to the cases of McGowen vs. Bank of Montgomery, and Ma/rriott vs. Givens, decided by the Supreme Court of Alabama, at the January and June terms, 1845, in 8 Ala. IF. 8.

    The statute of limitation is alone pleaded to the writing obligatory, and not to the trust: hence, though the bond is barred, or even if the trust itself is barred, the decree on this point must be for complainants. Complainants may proceed alone upon the trust, as sufficient evidence of the debt, and need not, for any purpose, resort to the bond. The trust itself, independent of the bond, is an admission, under seal, of the debt. There was no necessity for producing the bond in evidence at all. Appellant must be held to his pleading, and since he has elected to insist upon the statute as to the bond only, and not as to the trust — he must fail. 1 Ala. JF. 8. 741, 742, Duvall’s heirs vs. McLosley: 2 ibid.; Inge vs. Boa/rdmcm 331, 5 8. Ma/rsh. 651.
    The statute of limitation does not extinguish the debt, but merely bars the remedy — in other words, it simply destroys the effect or evidence of the particular instrument to which it is pleaded ; the debt or duty still remains, and if there is other evidence to which the statute is not pleaded, plaintiff may resort to it. 1 Ala. JF. 8. 741, 743/ Doe ex., dem., Duval’s heirs vs. MeLosky; Inge vs. Boar-dman, 2 ib. 331/ 5 Smede <& Ma/rsh. 651/ 10 Yerg. 146 / 19 Pick. 535 / Thayer ■us. Marm, 2 Oox 123 / Wassell• vs. Rea/rdon, 6 Jbng. 705/ 2 Smede (& Ma/rsh. 687/ 9 Mass. 242/ 2 Gown. R. 161/ 6 ib. 388.
    A trustee has something more than a mere security for his debt; he has hoth a jus ad rem and a jus in rem, coupled with a specific lien; hence, the decisions in regard to liens, after the statute has run against the debt, are applicable. 1 Ala. JF 8. 742, et seq.; 5 Smede & Ma/rsh. 651/ 19 Riele. 535/ 2 Oox 123.

      The authorities seem to be conclusive, that although the debt secured by a trust or" mortgage, is barred, yet the latter is not barred. The mortgagee or trustee has three remedies: one on the note or bond, one at law for the recovery of the possession of the property conveyed, and one on the mortgage or trust, in equity to foreclose it, and the barring of one remedy does not affect the others. 1 Ala. If. S. 741, et seq/ 5 Smede db JMa/rsh. 651/ 19 Pick. 535/ 2 S. & JMJ. 687, and authorities passim.

    There is no such thing as an action at law on a trust. A party’s only remedy on a trust is in equity. The statute of limitation does not apply where the remedy is alone in equity. 9 Pick. 242, et seq.; Pa/mam vs, Broolcs, 3 Yerg. 201/ Armstrong vs, Ccmwpbell, 7 John. Gh. JR. 87/ Ecme vs. Bloodgood et al.

    An express trust is such as is created by the direct act of the parties, by some writing, deed or will. Implied trusts are all those called constructive and resulting trusts. 2 Story Oom. Eq., see. 980. The deed of trust in this case, is an express trust, but the statute of limitation does not apply to express trusts; therefore, the statute, if pleaded to the trust in this case, would not benefit the appellant; and a fortiori since it is not pleaded to the trust, he cannot be benefited by it. 2 Story's Eq. 467, 472/ 7 J. O. JR. 89/ 20 J. B. 576; 9 Pick. 242/ 1 Yerg. 296/ Pinson & Parkins vs. Ivey.

    When a party’s remedy is concurrent at law and in equity, and the remedy at law is barred by the statute, his remedy in equity is also barred. In this case, complainants had no remedy on the tncst at law, but only in equity: the remedy was, therefore, not concurrent. 3 Yerg. 201/ 2 Eq. JD.,yp. 209, see. 28/ 215, see. 27.
    The answer of Sullivan shows that he has not held adversely to the trustee. It is clear that if Sullivan’s possession was not adverse, he held under the trustee, and the statute does not apply. The trustee, under the circumstances of this case, might, when the bill was filed, have brought his action at law to recover the possession of the trust property from Sullivan. 1 Yerger 296, <and authorities eited.

      PiKB & CcMMiNS, for appellant.
    We need bardly say, tliat tlie complainant liero can alone succeed upon tlie right disclosed in the bill. There is a general demurrer in the answer of Sullivan, which presents upon the hearing directly for consideration, every insufficiency in the bill, and in the facts, then appearing, which could prove fatal to the rights of appellee. Obviously no aid to the bill, or to the facts, can be derived from the answer or cross-bill. Story’’s Eg. PI., sec. 17,28,42, 257, 260, 261, 496, and oases cited/ llena, vs. Anthony et al., 6 Eng. 421 : Gooh vs. Bronaxigh et al., 13 Arle-. I¿. 183.
    At law ordinarily as to dioses in action, where the statute of limitations is held to bar the remedy only, the statute must be specially pleaded. At laxo even where the lapse of time vested title in the holder, the statute need not be specially pleaded. The party could treat his title as perfect by law, and prove it as any other title. In ejectment, this always has been the law. Pilloxo vs. Roberts, 7 Eng. 822 / 5 Éng. 151 / 6 Gond. II. 350 / 3 lien, do Munf. 57 / 5 Granoh 358 / 4 Yerg. 407 / 1 Munf. 101; 3 J. J. Marsh. 268 / 5 Munf. 435 / 3 Gall 362 / 6 litt. P. 437.
    Our own statute, upon its face, declares the effect to be to vest an Absolute properly upon the lapse of the time prescribed. Act December 19ih, 1846, [Rev. Btat.,p. 943, sec. 3, 4.)
    By this act the limitation as to negroes was five years, prior to that, it was three. Seo. 7, oh. 99, Rev. St.,p. 696 / Payne vs. Brxi-ton, 5 Eng. 53. Of course the limit of three years controls this case. ,

    If this were a mortgage, the statute of limitations would begin to run from the forfeiture, as between mortgagor and mortgagee. There is no direct trust as bet-ween them. 2 Story Eg., section 1028a, 102S&, 1520. Ilovendenvs. Lord Annesley, 2 Sch. <& Lef. 607, and oases reviewed/ Lawrence vs. Dridleman, 3 Yerg. 496; 3 Pet. 52/ 6 Pet. 65/ 5 Mass. 143/ 17 Yes. 96/ 2 Story Eg., sec. 1520.
    This must be true, for all our statutes are positive bars, and rest not on mere presumption. In effect, they are like the modern English statutes. Coote’s Mort. 449, 450, 66, 67, 518. '■
    If it is treated as a deed of trust, perhaps the only difference is, that Hadley had a right to sue for the negroes instantly on the execution of the deed — was entitled to immediate possession. The statute would, in that case, attach one year earlier than if treated as a mortgage. There never was a doubt that the statute does not run as between trustee and cestui que trust. Here Sullivan, if trustee at all, was only so by implication, not directly. The trustee was Hadley himself, and the cestw que trust, were the creditors, secured. Except, as between them, the statute would run. Hill on Trus.,p. 508/ 8 Humph. 563 / 6 Ham. 96/ Doe ex., dem., c&c. vs. lÁghtfoot, 8 Mess. <& Wei. 558 / 1 Bro. 0. 11. 554/ 17 Ves. 87.
    It is a mere perversion of all principle to say that where property is conveyed intrust to pay debts, the statute never attaches upon the property. That is only true as between trustee, and cestui que trust. It is not true, as between persons not standing in a fiduciary relation to each other. Hill on Tr. 503. As between trustee and cestui que trust, it is true, neither the debt can be barred, nor title to the property transferred by statute. But the statute does attach, even in cases of trusts, wherever there is •a remedy at law. 7 J. O. R-, 110, 111 / 1 Watts <& Sergt. 118 / 15 Wend. 302/ Robinson vs. Oook, 4 Mas. 150, c&c. ; Serwoodvs. Sutton, 5 Mas. 146, c&c; Denton’sex. vs. Embry vs. Yoimg, 5 Eng. 228.
    There was a perfect remedy at law, all the while for all relief, complainant now seeks or cam have. There never has been any •obstruction to such remedy.
    The idea of a tenancy and holding under mortgagee, when mortgagor is in possession, is mere fiction, and only prevails for some purposes. Christophers vs. Sparks, 2 Jac. <& W. 234/ Ohol-■mondeley vs. Clinton, ib. 179/ Jackson ex. dem. vs. Wood, 12 J. li. 242/ Angelí on Li/m., p. 4.90, 1, 2/ Ooote on Mori. 518.
   Mr. Chief Justice ENGLISH

delivered the opinion of the Court.

This was a bill to foreclose a trust deed, or mortgage, with a power of sale.

The bill was filed on the 4th day of September, 1850, in the Union Circuit Court, by James Hadley, the trustee, against Lee Sullivan, the maker of the deed, and alleges, in substance, as follows :

That, on the 20th December, 1841, in Tipton county, State of Tennessee, Lee Sullivan, then (as well as complainant) a resident of said county of Tipton, executed to complainant as trustee, a deed of trust, by which, after reciting that the said Lee Sullivan was indebted to John L. Iiadley, of Green county, Alabama, in the sum of $629 88, due by writing obligatory of that date, to O. JI. P. White, by two notes for about $21, and by open account, due first January, 1842, for about $30, and to sundry other persons in small sums, by notes, accounts, &e., the names of whom, and the sum due to each, being stated; and the said John L. Hadley, and the other creditors named, being willing to wait twelve months longer, with the said Lee Sullivan, upon having their debts and interest secured, and the said Lee Sullivan being willing to give them a certain assurance that their money should be paid at the expiration of twelve months from the date of the trust deed, he, the said Lee Sullivan, as well in consideration of securing his said creditors, in the payment of their demands, with interest, as for the further consideration of onedolllar, &c., granted, bargained, sold, assigned, tranferred and set over, unto the complainant, his heirs and assigns, the following property, then in the possession, and under the control of said Lee Sullivan in said county of Tipton, to wit: a negro woman Easier, and her five children, Hardy, Gabriel, William, Sarah, and Rossilla, slaves for life, &e., one sorrell horse, a bay mare, all his household and kitchen furniture, one wagon, carryall, barouche, and six spinning machines : to have and to hold said slaves and other property unto said complainant, his heirs and aesigns forever, in trust however and to the intent and purpose, that if all the claims set forth in said deed of trust, with lawful interest, should not be paid off, and fully discharged by the said Lee Sullivan, or some other person for him, before the expiration of twelve months from the date of the execution of said deed of trust, that complainant should, in the execution of the trust conferred upon him by the deed, and accepted by him, advertise said property, for twenty days, in a newspaper published in Memphis, Tennessee, {Memphis Enquwer), and by posting up written notices at four of the most public places, in said county of Tipton, for sale to tho highest bidder for cash, &c.

That it was further stipulated in said deed, that if said debts, &c., were not paid on the day appointed for such sale, complainant, as such trustee, should proceed to sell the trust property to the highest bidder for cash, and make bills of sale thereof to the purchasers, conveying to them all the right and title of the said Lee Sullivan, his heirs, &c., therein : the deed of trust to be void, and of no effect, if the debts secured thereby should be paid off before the day of sale. That tho trust deed was duly acknowledged on the 27th day of December, 1841, and on the same day recorded in the Register’s Office of Tipton county, Tennessee, and on the 26th day of August, 1844, duly recorded in the office of the Recorder of Union county, Arkansas.

The deed, with the several certificates of acknowledgment and registration thereto attached, is exhibited with the bill.

The bill further alleges, that said John L. Iladley and the other creditors of Lee Sullivan, named in the deed of trust, reside beyond the limits of this State. That in the month of October, 1844, complainant, out of his own means, paid to O. IT. P. White, one of the creditors, $16 05 on the claims of said White, secured by the deed, which sum with interest, complainant submits that he is entitled to have refunded to him out of the trust fund. White’s receipt is exhibited.

That in the year 1843, O. II. P. White, an execution creditor of Lee Sullivan, caused one of the slaves, included in the trust deed, to be levied upon, and that complainant believing it to be his duty to protect the trust property, filed a bill for injunction, and procured a release of the slave from execution, and was obliged to pay counsel therefor a fee of $25, which sum, with interest, complainant claims that he is entitled to have re-imbursed to him out of the trust fund: as well as $1 95 paid by him for acknowledging and recording the trust deed. The receipt of the counsel for the $25 is exhibited.

That, after the expiration of the twelve months forbearance, mentioned in the deed, the notice and sale therein required, were .not given or had, because the creditors of defendant were unwilling to harrass him, and were willing to, and had indulged ln'm; and continued to indulge him to the time of filing the bill.

That, in February or March, 1844, the defendant removed from the State of Tennessee to the county of Union, in this State, and brought with him the property mentioned in the deed, by the implied consent and sufferance of complainant; and that defendant, by consent of complainant, and under said trust, had retained and still kept possession of the property. That in consequence of the removal of the property, as well as of complainant and defendant, to the county of Union, it was inconvenient, and would fail to accomplish the object of the parties to the trust deed, for complainant to give notice of sale, at the several places, and in the manner required by the terms of the trust; and hence, complainant applied for the aid of the court of chancery.

That, since the removal of the property to Union county, Pierce, a judgment creditor of defendant, on the-day of-, 1845, caused an execution to be levied upon one of the slaves embraced in the trust deed. That complainant, as in duty bound, and at the instigation of defendant, by au attorney, who acted at the request of both complainant and defendant, caused the sale of said slave to be forbidden, and notified the sheriff' of the claim of complainant to the property. That defendant had repeatedly, and at divers times, within the last five years, acknowledged the said trust, and particularly the debt due to John L. Hadley, and bad been bolding tbe property subject to said trust, and bad kept off bis other creditors from collecting their claims out of bis property, by means of said deed of trust.

That tbe creditors mentioned in tbe deed of trust, and particularly John L. Hadley, were unwilling longer to indulge tbe defendant, and insisted upon tbe collection of tbe several claims; and that John L. Hadley bad particularly instructed complainant to take steps necessary to close said deed of trust as soon as possible. That tbe debts mentioned in tbe deed of trust, with tbe sum paid White by complainant, and also tbe sums of money paid by complainant, out of bis own funds, together with a considerable arrear of interest thereon, remained unpaid, and tbe trust unsatisfied, and still in force. And tbe complainant being desirous of having tbe claims paid off, and tbe trust discharged, bad several times applied to tbe defendant for payment thereof, as bad also tbe said John L. Hadley, but tbe defendant bad failed to pay tbe samé, although be bad repeatedly promised to do so, and bad several times, within tbe last five years, acknowledged that be owed tbe said debts, and bad but recently, and after complainant was instructed to close tbe trust, pretended that said debts, and particularly that due to John L. Hadley, was unjust, and refused to pay tbe same.

Prayer, that defendant be required to answer, &c., and particularly whether be bad not repeatedly acknowledged verbally, and by letteis, tbe debt due to John L. Hadley, and promised to pay tbe same, within tbe last five years, &c. That an account might be taken of what was due, principal and interest, to John L. Hadley, tbe other creditors, and to complainant for money advanced, expenses of tbe trust, &c., and that defendant be decreed to pay tbe same, with costs, &c., by a day to be fixed, and that in default thereof, tbe trust property be sold for that purpose, and for general relief.

Tbe defendant, Lee Sullivan, admits in bis answer to tbe bill, tbe execution and registration of tbe trust deed, as alleged by tbe complainant. He avers that tbe obligation to John L. Had-ley, mentioned in the deed, was obtained from him by misrepresentation, fraud, and without consideration, setting forth the facts upon which this allegation is based. The pleadings and evidence in reference to this feature of the defence, constitute the principal portion of the record. The answer is made a cross-bill against John L. TIadley, &c., who positively denies that the obligation was procured by such misrepresentation, fraud, «fee., and states the consideration upon which it was executed. His version of the transaction is sustained by the decree of the court below, and we think by the preponderance of the testimony; and with this remark, this branch of the defence may be dismissed from further consideration.

Lee Sullivan further answers, that he executed the notes; and, at the time of the making of the trust -deed, owed the accounts, mentioned in the deed, and insists that they shall be produced and filed for cancellation upon the final decree, and that all the trust creditors were necessary and proper parties to the bill.

lie avers, that he had paid all the trust debts, except the obligation to John L. Hadley, which was fraudulent, &c.

And this defendant further says and avers, that the cause of action arising on the said several notes and accounts in the said deed of trust specified, did not accrue to the said John L. Had-ley, c%c., (naming each of the creditors), “within five years next before the said complainant exhibited, and filed his bill of complaint, and commenced his suit herein.”

“ And this defendant further says and avers, that he did not promise and undertake to pay to the said John L. Hadley,” &c., (naming each of the other creditors) “the said several notes and accounts in the said deed of trust specified, within five years next before the said complainant exhibited his said bill, &c., and that said cestui que trusts, are all residents of Alabama and Tennessee.”

Avers that if complainant paid "White the $16 OS, he did it without authority, and in his own wrong, because the whole of White’s debt had been paid by defendant.

Denies that there was any necessity for complainant to pay the counsel’s fee of $25 to protect the trust property from execution, &c.

Does not know that complainant paid for the acknowledgment and registration of the deed, and requires proof thereof, &c. Admits that no notice was given, or sale made in Tennessee, in pursuance of the requirements of the deed of trust, and that the trust h ad not been closed. Admits that he removed to the county of Union, in the year 1844, and brought with him the slaves, and some of the other property, specified in the deed ; but denies that it was with the implied consent, and sufferance of complainant, and avers that it was with his express assent, knowledge, and approbation. Admits that defendant has the property in possession, and waives the necessity of notice, or sale, in Tennessee, in pursuance of the terms of the deed.

Admits that he caused the sale of the slave levied upon, by the the sheriff of Union county, under the execution in favor of Pierce, to be forbidden, and the sheriff to be notified of said deed of trust, as alleged in the bill, but insists that he did not thereby, recognize the justness of said deed of trust as between defendant and said John L. Hadley, or waive any right as against .him.

Admits that he may have, within the last five years, acknowledged the existence of-the deed of trust, but denies that he had, at any time within that period, acknowledged the justness of the deed of trust, and the debt supposed to be due to said John L. Hadley, and held his property subject to said trust, and kept his creditors from collecting their debts by reason thereof.

Denies that any of the trust creditors except Hadley had instructed or desired complainant to file the bill, and again avers that all the creditors had been paid, but Hadley, whose claim was fraudulent.

Avers that complainant is indebted to him in about the sum of $400, and pleads this as a set-off against any sum that may be allowed complainant, exhibiting a bill of particulars.

“And this defendant further says and avers, that the said complainant lias not made or stated snob a cause in and by bis said bill of complaint, as entitles liim to any such relief, as be, by bis said bill, bas prayed from and against this defendant, and he prays that, upon the final hearing of this canse, he may have the same advantage, as upon demurrer interposed in due. form.”

The answer is made a cross-bill against complainant and the trust creditors, with a prayer that they be compelled to answer, &e., for decree against complainant for any excess of indebtedness, that may be found to be due from him to defendant, and that the trust creditors be perpetually enjoined from further proceedings upon the trust deed, &c. Special interrogatories are propounded to complainant, in reference to his alleged indebtedness to defendant and to John L. Hadley, in relation to the consideration upon which the obligation to him was executed.

John L. Iladley was made a party to the bill by consent. None of the other creditors were made parties.

He states, in his answer to the cross-bill, that he was the uncle of the defendant, Lee Sullivan. That the obligation specified in the trust deed as due to him, was executed for costs, attorneys fees, expenses, &c., incurred by him in prosecuting a claim to some slaves at the instance and for the benefit of Lee Sullivan; that the trust deed was taken in good faith to secure the payment of the debt, and that he had indulged Sullivan in consequence of his being a relation, &c.

He submits that the note is not barred, but that it is quite immaterial whether it is or not, that he is pursuing his remedy, on the trust deed, and that his rights are dependant on the statute of limitation applicable to it.

He insists that he had three remedies: a suit upon the note, an action at law for the trust property, and a bill to foreclose, and that the statute of limitations, applicable to any one of his remedies, had no application to the other. That the statute of limitations is only a bar to the remedy, and not a destruction of the debt, but mere evidence of it. That the trust deed is evidence of the debt without resort to the note, and that any bar to tbe note in no wise affects tbe debt, or bars evidence under seal of its existence.

That tbe bar interposed by Sullivan, is to tbe note only, and not to tbe trust deed. That Sullivan bad, witbin five years, promised to pay tbe note.

Tbe draftsman of tbe answer seems to have been under tbe impression that tbe note referred to, was not under seal, but it is a writing obligatory, due 20tb December, 1841, tbe date of tbe trust deed.

Tbe answer of James Hadley to tbe cross bill, denies that be is indebted to Lee Sullivan in one cent — on tbe contrary, be avers, that they bad a full settlement of all tbeir matters in March, 1844, and Sullivan was found to be indebted to bim, &c.

No written acknowledgment of, or promise to pay tbe debt of Joba L.' Hadley, by Lee Sullivan, subsequent to tbe date of tbe trust deed, was proven.

R. W. McHenry's deposition was taken by tbe parties on tbe 9th of April, 1852. He states as follows : “He beard Lee Sullivan say, that in consequence of a heavy law suit be lost, be bad become involved in debt, and that Dr. Hadley (John L.,) bis uncle, bad advanced bim money, (witness understood Dr. Had-ley lived in Alabama), for which be bad given bim a mortgage on bis property, and if be could make one or two good crops, be could pay out, as that was about all be owed. All this conversation took place some three, four, or five years ago; not exceeding five years ago, from this time.”

Harriet McHenry testified that Lee Sullivan moved to Arkansas, in tbe year 1844, and that be left Tennessee with his negroes, with tbe knowledge, and in company with James Hadley. That in 1846, she beard Lee Sullivan say that be was doing all be could to pay tbe amount due on Di\ Hadley’s deed of trust. That in tbe year 1841, John L. Hadley and defendant met at James Hadley’s, in Tennessee, for tbe purpose of getting him to act as trustee in tbe deed of trust, &c.

Holmes testified, that about tbe 9th March, 1843, an officer of Tipton county, levied an execution upon one of tbe slaves embraced in tbe trust deed, in tbe absence of Lee Sullivan and bis white family, and that at tbe instance of James Hadley, tbe trustee, witness, as an attorney, filed a bill to enjoin tbe execution, for wbicb be charged $25, and Hadley gave him bis note for tbe amount, wbicb be afterwards paid, with interest, on tbe 30th December, 1844.

A letter from Lee Sullivan to John L. Hadley, dated July 11th, 1846, was made part of tbe evidence in tbe cause. In this letter Sullivan gives a detailed account of bis pecuniary affairs, prospects, &c., but makes no reference to tbe trust deed, or to Had-ley’s debt. There is no other evidence in tbe cause, material to tbe defence of limitation, wbicb is tbe main question to be determined.

Tbe court decreed, upon tbe bills, answers, exhibits, replications, and depositions, that tbe cause of action was not barred, &c.; that Lee Sullivan was indebted to John L. Hadley, upon bis trust debt, principal and interest, from tbe 20th December, 1841, in tbe sum $1064 49; and to James Hadley in tbe sum of $25, for so much money, necessarily and properly advanced by him, on tbe 9th March, 1843, in tbe protection of tbe trust property, with $15 50 interest, making $40 50, and that Sullivan presently pay tbe sums, so found due with tbe costs of tbe suit, or that tbe slaves mentioned in tbe trust deed, be sold for that purpose, &c., authorizing tbe issuance of process, to obtain possession of tbe slaves, &c. Sullivan appealed from tbe decree.

Though tbe trust deed conferred upon James Hadley, tbe trustee, tbe power to sell tbe property, on tbe failure of Lee Sullivan to pay tbe trust debts, at tbe end of twelve months from tbe date of the deed, yet it seems that tbe trustee might resort to equity to foreclose and sell; and tbe removal of tbe property from Tipton county, Tennessee, whore, according to the terms of tbe deed, tbe notices of tbe sale were to be posted up, &c., perhaps rendered tbe application for tbe aid of tbe chancellor tbe more appropriate course. Bennett et al. vs. Union Bank et al., 5 Humph. 612; Ford vs Russell, Freem. Ch. 42; Marriott et al. vs. Givens, 8 Alabama R. 706; McGowan et al. vs. Br. B. Mobile, 7 Ala. R. 823; Dig. Stat. Ark., ch. 110, sec. 4.

There is nothing, therefore, in the objection, that the court below had no jurisdiction in the cause.

Was the right to foreclose the deed, and sell the property, for the payment of the debt of John L. Hadley, the only trust creditor, for whose benefit the bill appears to have been prosecuted, barred by the statute of limitations ?

The remedy is sought in our forums, and by our laws it must be governed. No statute of Tennessee, where the contract was entered into, is proven, or relied upon as affecting the rights of the parties in any way.

When a mortgage is executed upon land, and the mortgager remains in possession of the property, on the maturity of the debt, the mortgagee has three remedies : 1st. A suit at law upon the bond, bill, note, account, or other evidence of debt. 2nd. An action of ejectment, to obtain possession of the mortgaged premises, and take the rents and profits until the debt is thereby extinguished : and 3d. To bring a bill in equity to foreclose, &c. Smith et al vs. Robinson, 13 Ark. R. 538; Earle et al. vs. Byrd et al., 14 Ark. R. 499; 1 Alabama R. 744; Price vs. State Bank, 14 Ark. R. 50.

If the mortgagee bring an action upon the bond, bill, note, account, or other evidence of debt, the limitation to the action would be governed by the grade of the instrument sued upon as the foundation of the action. If he resort to an action of ejectment, to obtain possession of the land, the limitation applicable to such action, would be the bar, which, under our general statute, is ten years. Digest, ch., 99, sec. 1, &c.

But if he bring a bill to foreclose the equity of redemption, and sell the land for the satisfaction of the debt, secured by the mortgage, what is to be taken by the court of equity as the period of limitation, when there is no statute expressly fixing the lapse of time, which shall bar a suit to foreclose?

As a general rule, tlie court of equity would hardly adopt, as the period of limitation, that which is applicable to the action at law upon- the debt, because that may be evidenced by an unsealed instrument, while the mortgage, upon which the bill to foreclose is founded, and which is also evidence of the debt, is under seal, and an instrument of a higher grade. See Miller adm. vs. Helm. et al., 2 Sm. & Marsh. 687; Miller vs. Trustees of Jefferson College, 5 ib. 651; Doe ex. dem. Duval's heirs vs. McLasky, 1 Ala. Rep. 744, and cases cited; Inge et al. vs. Boardman, 2 ib. 331. These cases stand upon the principle, that when a party has two remedies, one of which is barred, and the other is not, he may successfully pursue that which is not barred.

But it seems to be settled that the courts of equity have adopted, as the period of limitation to a bill to foreclose and sell land, the length of time which is allowed the mortgagee to bring ejectment in order to obtain possession of the land and satisfy his debt out of the rents and profits. 4 Kent. Com. 189, 190; 2 Story's Equity, sec. 716; Hughes vs. Edwards, 9 Wheat. R. 497; Doe ex. dem. Duval's heirs vs. McLasky, 1 Ala. R. 745, and the same period is allowed the mortgager to redeem.

So in Moore & Cail adm. &c. vs. Anders, 14 Ark. R. 629, where the limitation on the bond was five years, Mr. Chief Justice Watkins held, that, inasmuch as our statute allowed the mortgagee ten years to bring ejectment, he had a like period to foreclose, &c.

But the mortgage or trust deed, in the case before us, is not upon land, but upon slaves, and other personal property. The decree was for the sale of the slaves only. What statute of limitations is to be regarded as applicable to the remedy here sought in equity ? The debt to John L. Hadley is evidenced by a writing obligatory, dated and due on the 20th December, 1841. The limitation applicable to an action at law upon it, was five years. Revised Statutes, ch. 91, sec. 11; Baldwin vs. Cross, 5 Ark. 510; Dickinson vs. Morrison, 1 Eng. R. 264; Lucas vs. Tunstall, ib. 443; Couoh vs. McKee, ib. 484; Hawkins vs. Campbell, ib. 513; Davis ex., use, &c. vs. Sullivan, 2 ib. 449; Bird vs. Smith, 3 ib. 368; Calvert, use, &c. vs. Lowell, 5 ib.

It follows, that on the 4th day of September, 1850, when the bill was filed, and process issued, an action at law upon the bond was barred. The pleadings and evidence in the cause show no part payment upon the bond, and no written promise to pay, or acknowledgment of the debt, subsequent to the execution of the trust deed, on the part of Lee Sullivan. Yerbal acknowledgments and promises would not extend the period of limitation, or revive the debt. Dig., ch. 99, p. 698, sec. 18, 19; Ringgold & Hynson vs. Dunn, 3 Eng. R. 497; Grant adm. vs. Ashley, 7 Eng. 762; 5 ib. 134; 4 ib. 450; 5 ib. 638; 6 ib. 29.

It seems that John L. Hadley was a non-resident of this State when the bond was executed, and so continued to the 4th September, 1850. But the exception in favor of non-residents, made by the 13th section, Revised Statutes, chapter 91, was repealed by act of 14th January, 1843, and the limitation ran against his debt from the date of the repealing act, (Watson vs. Higgins, 2 Eng. R. 475) in the absence of any showing to bring it within the exceptions made by the act of December, 14th 1844. Dig., eh. 99, see. 12, 13, 14, 15. See, also, Calvert use Lawson vs. Lowell, 5 Ehg. R. 147; Brian vs. Timms, ib. 597.

But to return to the question, as to what statute of limitation is to be regarded as applying to the remedy sought in this case in equity.

It is a general rule, that where there is a legal and an equitable remedy, in respect to the same subject matter, the latter is under the control of the same statute bar as the former. Kane vs. Bloodgood, 7 John. Ch. R. 117; Harris vs. King, present term.

Humphries vs. Terrell, 1 Ala. R. 650, was a bill by a mortgager to redeem slaves from the possession of the mortgagee. The defendant relied upon the limitation applicable to the action of de-tinue, as a bar to the bill. Goldthwait, Judge, said: “The complainant seeks to avoid the plea of the statute of limitations on the ground, that the defendant is a mere trustee ; and, as such, unaffected by the lapse of time. The only cases which are not barred by lapse of time, are those which arise out of trusts, which are, peculiarly and exclusively, the creatures of a court of equity.” Maury’s adm. vs. Mason’s adm. 8 Porter 211. After stating the relation which exists between the mortgager and mortgagee, and the nature of the contract, he proceeds :

“It is equally true, however, that equity will not always listen to a claim to redeem. If amortgager, &c., lies by, and will make no attempt to redeem within the period, within which any title, however good, will be barred by lapse of time, a court of chancery cannot, indeed, it ought not, to relieve; this is the well settled rule with respect to real estate, and if a moatgagee has been in possession of the mortgaged premises for twenty years,” (ten in Arkansas. See Moore & Cail vs. Anders, 14 Ark. 628) “taking the profits without any account, or act done by which he admits himself to hold them as a qualified estate, the equity of redemption will be presumed to be extinguished, or to have been abandoned by the mortgager, and a bill to redeem will not be entertained by a court of equity.

This rule is adopted by courts of equity, not in obedience to the statutes of limitation, but in analogy to them, and from the obvious necessity which exists that some lapse of time should quiet the possession. All the reasons of the rule apply with as much force to personal as to real estate, and if it has been considered judicious to make a shorter period of time applicable, as a limitation to a suit for the former, it is the duty of a court of equity to adapt its decisions to the recognized rules of law. A claim to personal estate is barred at law after the lapse of six years, no matter how imposing it may be; and what reason is there that a court of equity should open its doors to relieve a suitor, who, under similar circumstances, is banished from a court of law ? We know of none. And it may be added, that an equitable claim not resting on a trust exclusi/ueVi/, the creature of a eov/rt of eguity, which has not bad sufficient merit to induce a prosecution within six years, ought, after that period, to rest forever.”

In Sims vs. Canfield exr., 2 Ala. R. 555, which was also a bill to redeem slaves, aud the limitation applicable to detinue was relied upon as a bar, it was held that where slaves have been possessed under a claim of title for a period analogous to the statute of limitations, the possession operates not only as a bar, but also invests the possessor with the absolute title. That the action of detinue (in Alabama) is the only one at law, analogous to a bill to redeem a specific chattel, and so far as the statute of limitations can have any bearing on such a bill, it is to be considered precisely as if it was an action of detinue at law.

In Fenwick vs. Macey’s exrs., 1 Dana 276, the court being divided, the same doctrine is, to some extent, recognized, and to some extent disavowed; but the disavowal is"based upon a dissent from the rule, that equity adopts the statute of limitations applicable to ejectment, in fixing the period allowed for a bill to foreclose and sell land, or to redeem. The current of decisions, however, sustains this doctrine, and we have seen that this court lias adopted it in Moore & Cail vs. Anders.

.Assuming, therefore, by analogy to the rule applicable to mortgages upon land, that where the mortgage, or trust deed is upon slaves, and the mortgager continues in possession, after de_ fault of payment, that the mortgagee or trustee, has the same time to bring a bill to foreclose and sell, that is allowed him, under like circumstances, to commence an action at law for the possession of the slaves, we- shall proceed upon this hypothesis to determine whether the bill in this case was barred by such limitation.

The trust deed was executed by Lee Sullivan to James ITadley, as trustee, 20th December, 1841, to secure the payment of the debt to John L. Hadley and others, with power to sell the property for the satisfaction of the debts, after the expiration of one year, on default of payment. The maker of the deed remained in possession of the property; and, from the nature of the instrument, it was, doubtless, tbe intention of tbe parties,.that be should continue in possession until be was in default. After tbe expiration of the year, Sullivan failing to discharge Hadley’s debt, tbe trustee bad tbe right to take possession of tbe property, and sell so much of it as was necessary to pay tbe debt, &c. If it was necessary, be bad tbe right to bring an action at law for tbe possession of the slaves, &c., to enable him to sell them, and transfer them to tbe purchaser; and no demand, it seems, need have been made before suit; (Smith et al. vs. Robinsin, 13 Ark. 538; Evans et al. vs. Merriken, 8 Gill & John. 47,) and, in such action, tbe trust deed would have been evidence of bis title; or be bad a right, as we have seen, to resort to a court of equity to compel tbe surrender of tbe property, and obtain a decree for its sale to satisfy tbe debt.

Tbe right of action accrued on the default, 20th December, 1842, Pickard vs. Low, 15 Maine R. 48; Ingraham vs. Martin, ib. 373. There is no allegation in tbe bill or evidence, that Sullivan remained in possession of tbe slaves, after default, under any new agreement or contract with .the trustee, or cestui que trust, for delay of payment or sale. Tbe bill puts it on tbe ground of indulgence, on tbe part of John L. Hadley, prompted by a disposition not to harrass Sullivan. The trustee seems to have acted, finally, under instructions from tbe creditor, to take steps to close the trust, given shortly before tbe filing of tbe bill.

Such is tbe inference from the allegations of tbe bill. Mere indulgence, on the part of tbe trustee or creditor, would not prevent tbe running of tbe statute, in tbe absence of any act, on tbe part of Sullivan, to prevent it.

On tbe default, tbe trustee might have brought replevin or de-tinue for tbe slaves. Three years was tbe limitation to tbe former action. Revised Statutes, chap. 91, sec. 6; Digest, chap. 99, sec. 7; Payne vs. Bruton, 5 Eng. R. 54. Hpon principle, tbe same period was tbe limitation to detinue.

In tbe absence of any act, therefore, on tbe part of Sullivan, recognizing tbe right of tbe trustee to tbe slaves after tbe default, three years would have barred their recovery, by the act of limitation then in force.

The bill alleges, and the answer admits, that Sullivan brought the slaves to Union county, in February or March, 1844, with the knowledge and consent of the trustee, where the deed was recorded in August of the same year; but, at whose instance, does not appear. That, in the year 1845, (the month is not stated) one of the slaves was levied upon by the sheriff of Union county, under an execution, in favor of a creditor of Sullivan, and that the trustee, at the instance of Sullivan, notified the sheriff of the existence of the deed, and forbid the sale of the slave. Though such verbal recognitions of the trust would not remove the bar to an action on the bond for the debt, as we have seen, yet they tended to show that Sullivan was not, at that time, holding the slaves adversely to the right of the trustee, and had the bill been filed within three years afterwards, our inclination would be to hold that it was not barred, though the effect of such verbal admissions would be greatly weakened by the decision of this court in Prater adm. vs. Frazier and wife, 6 Eng. R. 249, if applicable to such case in equity. But it does not appear that the bill was filed within even five years after the sale of the slave was forbidden by the interposition of the trustee, at the instance of Sullivan; nor is there any allegation in the bill, that Sullivan, in any way, verbally or in writing, recognized the claim of the trustee to the slaves, or that they were held subject to the trust at any time within three years next before the bringing of the bill. The answer contains a demurrer to the bill; and, on the hearing, this objection was fatal. Meux vs. Anthony et al., 6 Eng. R. 425; Cook vs. Bronaugh et al., 13 Ark. 183; Story's Eq. Plead., sec. 28, 257, 260, 496, 523, 751.

Nor is the bill aided by the proof in the cause. Harriet Mc-Henry stated that, in 1846., she had heard Sullivan say “he was doing all he could to pay the amount due on Hr. Hadley’s deed of trust.”

R. W. McHenry deposed, that he heard Sullivan say that he bad given Dr. Iiadley a umortgage on bis property, and if be could make one or two good crops, be could pay out — that “this conversation took place some three, four, or five years ago, not exceeding five years ago from this time,” (9tb of April, 1852.)

If these declarations could be beld as a recognition of any right in James Hadley, the trustee, to the slaves under the deed, the witnesses do not prove that they were made at any time within three years before the filing of the bill, (4th Sept. 1850.)

The memory of the lasfwitn ess swept over too many years to be relied upon in the settlement of important legal rights, and such loose testimony shows the propriety of the policy of our legislation, and the course of our decisions, which tend to disallow verbal admissions, or promises, to remove the bar, and revive debts, or divest property acquired by lapse of time.

It is not insisted in the argument for Hadley, that the act of December 19th, 1846, (Digest, chap. 158, art. 1, sec. 3-4,) making the possession of slaves for five years after its passage,"a bar to any action for them, would have applied to an action of detinue or re-plevin, brought for the slaves in question, on the 4th of September, 1850. There is nothing in the pleadings or evidence that could make this statute applicable, and the course of decisions of this court forbids its application. See the cases above cited, as well as Calvert, use, &c. vs. Lowell, 5 Eng. 147; Biscoe et al. vs. Stone et al., 6 ib. 39; Mason vs. Howell, 14 Ark. 199; Bank of the State vs. Gray et al., 13 ib. 39; State Bank vs. Conway, ib. 344; Woods vs. State Bank, 7 Eng. 693.

It would seem, therefore, from the pleadings and evidence in this case, that on the 4th September, 1850, when the bill was filed, the right of John L. Hadley to maintain an action upon the bond, and of Janies Hadley, the trustee, to bring an action for the possession of the slaves, was barred by the statutes of limitation, applicable to such actions.

Story says: (Eq. Plead., sec. 716,) “If an equitable title is not sued upon until after the time within which a legal title, of the same nature, ought to be sued upon, to prevent a bar by the statute of limitations, courts of equity, acting by analogy to the statute, will not entertain it. For, in courts of equity, lapse of time is emphatically an ingredient in regard to entertaining suits for relief. If the party be guilty of such laches in prosecuting his equitable title, as would bar him, if his title were solely at law, he will be barred in equity,” &c.

In determining the period allowed to the trustee to bring his bill for foreclosure and sale of the slaves, if the court of equity is to be governed by the statute, applicable to the action upon the bond, the remedy in chancery was barred on the 4th September, 1850.

If the court, is to be governed by the limitation, applicable to the action of replevin, or detinue for the possession of the slaves, the remedy in equity was equally barred.

If the court is to look to the deed of trust, as a sealed instrument, and as evidence of the. debt, it is of no higher grade than the bond: it was executed at the same time, and although it matured a year afterwards, if it could have been made the foundation of an action at law, the same statute of limitation which applied to the remedy upon the bond, would have applied to it. There is no ground, therefore, upon which the case can be put, so as to maintain the right of the trustee to resort to equity, after such delay, to compel Sullivan to surrender the slaves to be sold for the satisfaction of the debt of John L. Hadley.

This may, perhaps, be one of the cases in which the enforcement of the statute of limitations works a hardship upon an indulgent creditor, but general rules of law cannot be warped for the purpose of excepting individual cases. “Partial evil” may be “universal good.”

The objection of Hadley’s counsel, that limitation was pleaded to the debt, and not to the bill to foreclose, is rather technical than substantial. The object of the bill was to enforce the payment of the debt, by a sale of the slaves, and the defendant manifestly intended to interpose the statute bar to the relief sought. But if the objection were good, it does not aid the complainant’s bill, which we have stated was demurrable.

The $25 paid by James Hadley, the trustee, in 1843, for the protection of the trust property, as he alleges, was paid, not for the benefit of Sullivan, but for the benefit of the cestui gue trust, and the remedy upon the trust deed, to enforce the payment of the claim of the creditor, being barred by lapse of time, it follows that the demand of the trustee, for expenses, falls as an incident.

The decree of the court below is reversed, at the costs of the appellees, and the cause remanded, with instructions to dismiss the bill for want of equity, and that the costs which accrued at the instance of John L. Hadley, in the attempt to enforce the collection of his debt, be taxed to him; that the costs incurred at the instance of James Hadley, to enforce his individual demands, be taxed to him; but as the record has been much encumbered by Sullivan, in an unsuccessful attempt to avoid the debt of John L. Hadley, on the grounds of fraud and want of consideration, it is deemed but just that he should pay all costs accruing on account of this branch of the defence, and the chancellor will so decree.


source: Caselaw Access Project

author: Mr. Justice Wai/heb

license: Public Domain

text:
    Carter et al. vs. Cantrell et al.
    "Where the personal property of the wife is not reduced to possession by her husband during the lifetime of the wile, upon her death, it descends to her heirs or representatives, and not to her husband. Cox et al. vs. Morrow, 14 Ark. 61Í.
    Disabilities, which bring- a party within the exceptions of the statute of limitations, cannot be multiplied: as whore, at the time of the accrual of the cause of action, the party entitled was a female infant, she cannot, after that disability is removed, set up coverture to avoid the statute bar.
    If the wife be entitled to personal property, and a sufficient time has elapsed for the statute of limitations to constitute a bar to a recovery, the coverture of the wife will not avoid the statute in a suit by the husband and wife — it could only do so in a suit by the wife after the death of the husband.

      Appeal from the Cvreuit Court of Jefferson County in Chcmeery.

    lion. SheltoN "Watson, Circuit Judge.
    Fowler, for tbe appellants.
    PiKE & Cummins, for tbe appellees.

      We are really at a loss to know on wbat ground tbis suit was brought. It seems, from tbe allegations of tbe bill, to have been imagined that where a specific legacy is made to a woman, during her coverture, and she dies before her husband has reduced the legacy into actual possession, leaving him surviving, the legacy belongs not to him, but to her heirs or representative. And, if that be the ground, it is one as strikingly erroneous as any position we ever knew assumed. Whitalcm' vs. Whitaker, 6J. B. 117/ McQueen onHus-ba/nd mid Wife 19, 22, 46, 47 ; Milner vs. Milnet ,3 T. B. 627/ Commonwealth vs. Manly, 12 Piole. 175 / Halbroole vs. Waters, 19 Piole. 354/ Wheeler vs. Bowen, 20 ib. 563 / Pitch vs. Ayer, 2 Conn. 143 / Criswald vs. Pemiiman, ib. 564 / Hayward vs.

      Ha/yioczxl, id. 517 / Schuyler vs. Hoyle, 5 J. C. R. 206 / Hass-good vs. Houghton, 22 Pick. 484/ Wallace vs. Taliaferro, 2 Gall 447 / Woel/per’s Appeal, 2 Barr 72 / Oaxton vs. Exerrs. of Haig, 4 Dessau,. 343/ Dodd vs. Geiger, 2 Grattan 102/ Lowry vs. Houston, 3 Howard Miss. Rep./ Stewart vs. Stewart, 7 J. O. R. 244 / 2 .Not. 260 / 14 Gonn. 102 / 1 Munf. 98,/ 5 Not. & Marsh. 772/ Yerby vs. Lynch, 3 Grattan 469, 488 / 6 & JuAw. 31 / 1 IZar. & 88 / Lasseter vs. Turner, 1 Yerg. 414 / Bowman vs. Tucker, 3 Humph. 648/ Brown vs. Brown, ib. 128/ Pattic vs. Hcdl, 2 B. Mon. 462/ 12 ib. 42/ 10 ib. 412.
    Moreover, tbe statute of limitations of Tennessee was three years wlien this right accrued. The only disability in the complainants, at the time, was infancy. No subsequent disability could be added. 6 J. G. R. 360/ 3 LG. R. 129/ 17 Pet. 37/ 7 Mon. 59 / 17 Verm. 165 / 2 Brock. 436/ 9 Dana 391 / 4 Yerg. 232/ 258/ 7 Mornr. 59/ 3 Gown. 227/ 12 Wend. 602/ 1 Pennsylvania 6.
    Their mother died about February, 1816, and of course they must all have been of age in February, 1837. The negroes remained in Tennessee more than three years after that.
    The running of the statute of limitation confers an absolute right on the possessor. Calvert use ése. vs. Lowell, 5 Eng. 151/ Shelby vs. Grey, 6 Oon. R. 350/ Hewby vs. Blalcey, 3 Hen. & Munf. 57 / Brent vs. Ghapman, 5 Oranch 358 / Hardeson vs. Llays, 4 Yerg. 507 / 3 J. J. Marsh. 363 / 5 Mumf. 435 / 3 Gall 362.
    Both D. W., Landon D. Carter, and James D. Eea, are barred. The whole of complainants are barred for this reason. Mrs. Rea has no right at all in the negro, unless she survives her husband, lie alone has the absolute life estate. If she survives, of course, the statute would not affect her. Now it does affect the husband, who has the only present interest. And this position the foregoing authorities prove. 1 Dev. 321 / 10 Ohio, 11, 135/ Litt. Sel. Gas. 296/ 294/ 5 Day 211/ 4 Dory 265, 310, all show that where several are interested in property, and one is barred, all are so, Certainly tills is so as to those not under disability. 7 Gra/noli. 156/ 2 JSrooh. 436.
   Mr. Justice Wai/heb

delivered the opinion of the Court.

This is a suit in chancery, brought by the complainants, as heirs of Matilda M. Carter, to recover certain slaves and their hire.

The bill charges, that on the 5th of November, 1814, in Ten.nessee, Susanna Wendell, by will, devised to her daughter, Matilda M. Carter, a negro girl named Harriet. That the testatrix died in 1816, and her daughter, Matilda M. Carter, within a few weeks thereafter, without having reduced the negro Harriet to possession, and without any knowledge of the bequest. That Hubert Searcy, the executor, proved the will, but his health being bad, he delivered the girl Harriet to Stephen Cantrell, as his agent, or in trust for the owners, or in some trust and fiduciary character. That although Matilda M. was, at the time of the bequest, the wife of Alfred M. Carter, (father of the complainants) the property in the slave never vested in him, but remained in the wife, and, at her death, passed directly to the complainants, her heirs. That Harriet was the mother of a family of children of much value; that she and her children have been kept in the employment of defendants, and that their hire is of great value. That complainants were at the death of their mother, infants, and resided more than three hundred miles from Nashville, the residence of their grand-mother, Mrs. Wendell, and of defendants, who thus became possessed of the property. That defendants always knew of complainants’ rights, but fraudulently concealed from them the fact that they had any title or claim to the slaves, and that complainants never had any knowledge of their rights until shortly before their suit was brought. The bill was filed on the 13th of February, 1851.

The defendants answer, and admit the execution and validity of the will. That the complainants are the children and heirs of Matilda M. Carter, to whom the girl Harriet was bequeathed. That they were infants, at the death of their mother, and resided in Carter comity, Tennessee, some three hundred miles from Nashville, the residence of Mrs. Wendell, and of defendants.

But they positively deny all fraud or concealment, and all knowledge of complainants’ rights, or that under the will, they ever had any rights, or that the slave Harriet ever came to the hands of them, or either of them, in trust for the owners, or others. But, on the contrary, assert, that the slave Harriet, was the property of the father of complainants, that he did reduce her to possession, and sold her for the valuable consideration of $500, to Stephen Cantrell, on the 11th of November, 1819, and exhibit a bill of sale of that date for Harriet; and also a letter written by the father, (Alfred M. Carter) as early as the 23d of March, 1817, from which it appears that he had been informed of the bequests, and had received from Stephen Cantrell a proposition to buy Harriet.

The answers then set up a chain of title through several persons to the defendant, Gr. M. D..Cantrell, in 1840 or 1841, and that as the slaves, from 1819 to 1832, were held in the State of Tennessee adversely by Stephen Cantrell, all the parties then being residents of Tennessee, and from 1832 to 1842, still in said State, by G-. M. H. Cantrell and others, and from 1842 until the 13th of February, 1851, the time when this suit was brought, in Arkansas. The defendants set up, and insist upon the statute of limitations in bar of the complainants’ right of action.

After a careful examination of the allegations and the evidence on both sides, the questions at issue are, substantially, but two.

First. Did the title to the girl Harriet, upon the death of Mrs. Matilda M. Carter vest in Alfred M. Carter, her husband, or did it descend to her children, the complainants?

Second. If the title to the slave did pass to the complainants, (her children) have they lost their right of action by the statute bar of limitation?

In proceeding to the investigation of the first point, it may suffice to say, that there is no doubt, from the allegations, the admissions of answers, and the proofs, but that Mrs. Wendell made a valid bequest of the slave to Mrs. Carter, which took effect a very short time before her death. There is no positive evidence of the time when Mrs. Wendell died. The testimony of the wit-nes Thomas Washington, who was an old and intimate friend of Mrs. Wendell, comes nearest fixing the time; and, from his statement, it was in the winter of 1816, and but for the allegation that she died a few weeks before Mrs. Carter died, it would be a question of some doubt which of them died first. Mrs. Carter, as it is clearly shown, died on the 4th February, 1816, and it is highly probable, from all the circumstances in evidence, that she was not, at that time, aware of the death of Mrs. Wendell, or of the bequest of the slave. They resided something more than three hundred miles from each other, and at a time when comparatively but few facilities for communication were afforded; nor is there any evidence, nor do the facts tend to raise any presumption that Alfred M. Carter, her husband, was, at the time of her death, aware of the bequest in favor of his wife. The first knowledge of that fact, traced to him, was a letter from him to Stephen Cantrell, dated 23d March, 1817, in which he alludes to a proposition from Stephen Cantrell to him to purchase the girl. This letter pre-supposes a communication from Cantrell to him, on the subject of the purchase of the girl, but when it was made, does not appear, nor is it a matter of importance, from the view which we take of the ease, whether he was so informed before or after his wife’s death; because, if his title to the slave was perfect under his marital rights, from the time his wife took under the will, without reducing her to actual possession before the death of his wife, then such legal title would draw with it the right of possession, and he could reclaim the property, or dispose of it by sale, without reducing it to possession, and this brings up the precise question now to be considered. Because^it is not pretended that he ever did reduce the girl into actual possession, at any time, unless it was formally at the time of his conveyance to Stephen Cantrell, which was some three years after the death of his wife.

The question is one of much difficulty, and there are not wanting highly respectable authorities, which would seem to sustain the validity of the husband’s title to the personal property belonging to the wife, but -which he did not, until after her death, reduce to actual possession.

TJpon a careful examination of them, however, it will be found that these decisions were for the most part, made in cases where theVife had_a clear legal title to the property, which, although not reduced to possession during the life time of the wife, was nevertheless not held under any adverse claim, and being subject to immediate possession, or held by one as bailee, or agent for the husband and wife, it became rather a question of fact, as to whether the property was, in effect, not in the possession of the husband although no acts of ownership had been asserted by him.

It is, however, unnecessary to refer particularly to them, because most of them were cited and relied upon by the counsel in the case of Cox vs. Morrow, and were carefully examined by the court, at the time that opinion was delivered, and the additional authorities gotten up with much care by the coirnsel for the ap-pellee,' are not stronger, or more favorable to the doctrine for which they contend, than those heretofore examined.

The right of the husband to the property of the wife, by the common law, is founded upon duties and liabilities incurred by the marriage or growing out of it. He is tenant by courtesy of the wife’s real estate, after the birth of a living child, because he is chargeable with the care, education, and support of the child. And he acquires a title to the personal property of the wife, because, upon his marriage, he, with other responsibilities, becomes liable for the payment of her debts. As regards the tenancy, that survives the death of the wife, because the charge to maintain the child is not removed by her death: but after the death of the wife, as the husband is relieved from all liability to pay the debts contracted by her before marriage, there ceases to be any reason why he should recover the property, but there is a manifest reason why he should not do so: which is, that if there are debts still unpaid at tbe wife’s death, the property should go to her administrator, to be applied to their payment, and the surplus, if any, to her heirs, which in the absence of any statute in Tennessee giving the property a different direction, would pass to her children, the complainants. Such, in effect, was the decision of this court in Cox et al. vs. Morrow, 14 Ark. Rep. 617.

It is true, in that case, that Mrs. Morrow held a life estate in the slaves, which bad not terminated until after Mrs. Williams, who held the remainder, died; and, therefore, in that case neither the husband or the wife had either the possession, or the right of possession at the death of Mrs. Williams; but the grounds upon which the decision was made, went to deny the right of the husband to any personal property of the wife, not reduced to possession by him before her death. This question, as to what is, or is not an actual possession of the husband, must necessarily depend upon the circumstances of each particular case. If this property had been in the possession of the wife, or of any one under her, at the time of the marriage, there is but little doubt that the title, by virtue of the marriage, would have passed to him without any formal delivery or actual exercise of ownership. In that' case, the possession of the wife would be the possession of the husband also, but where the wife has a legal title to the property, whether acquired before or after marriage, but has never reduced the¿property to possession, unless it is done by the husband, before the death of the wife, he can never do so afterwards, because the considerations which come into existence with the marriage, and conferred the right to recover and appropriate the property, ceased to exist at her death.

In the case now under consideration, if it had been shown that the executor of the will of Mrs, Wendell had delivered this property to Mrs. Carter, or to her husbahd, or to any one for them, before the death of Mrs. Carter, we would not say that this would not be sufficient, because a delivery to the wife,. or to any one for her, would be a delivery to the husband.

Such, we have seen, was not the case here. There is no evidence tbat this slave ever came to the hands of the executor until after Mrs. Carter’s death, and even if she had, Mrs. Carter, if living, could not have recovered the slave from the executor, until the debts were paid, or at least until time had elapsed for their payment, because she takes the bequest under the will, subject to the payment of the debts, and the whole estate of the testator passes to the executor, in the first instance, for that purpose.

In Refeld ex. vs. Billette, 14 Ark. Rep. 158, this precise question came up, and it was there held, that the right of the legatee to his legacy, is suspended until by the assent of the executor, or the lapse of time for the settlement of the estate, the suspension is removed. Indeed, this principle has gone further, and it has been held that even where the slave bequeathed was, at the time the bequest took effect, in the possession of the legatee, the executor might recover hire for the period of one year after the grant of letters testamentary, he having until that time to examine into and settle the estate. King vs. Cooper, Walker Miss. R. 389.

Mrs. Carter therefore had, at the time of her death, neither the possession, nor the right to possession, and of course her husband, who could only succeed to her rights by marriage relations, had not. Entertaining these views of the rights acquired to the slave, under the will of Mrs. "Wendell, it follows, that upon the death of Mrs. Carter, her children, the complainants, succeeded to the rights of the mother, as heirs of her estate, and unless barred by lapse of time from asserting their title, must recover the slaves; the proof, in all respects, being clearly sufficient to establish their right to the slaves and to their reasonable hire.

The claim was of more than thirty years standing, and was clearly barred by the statute .of Tennessee, where the right accrued, and where the parties and the property remained for more than twenty years; and also, by the statute of Arkansas, where the property, and one of the defendants have been since the year 1842.

The complainants admit this, but contend that their right to recover, is not affected by the statute. First. Because, by the fraud and concealment of the defendants, complainants were kept ignorant of their right of action until within about one year nest before the time of bringing their suit. And Second, Because they were infants when their mother died, and when the right of action accrued, and one of the complainants contends, that before she was twenty - one years of age, and consequently, before the statute commenced running, she married, and continued in cover-ture up to the commencement of this suit.

Upon the first ground, (the fraud) it is very true, that complainants were, at the death of their mother, too young to understand, or to protect their rights; and that they resided at too great a distance from their uncle, Stephen Cantrell, and their cousin, G-. M. D. Cantrell, to be presumed to know much of their property, or of the title by which it was held. But there is no evidence that either of the defendants, by any means whatever, misrepresented or concealed any facts touching complainants’ title from them; but,'on the contrary, it is abundantly proven that Stephen Cantrell did communicate the fact of the bequest of this slave to Alfred M. Carter, the father and natural guardian of these complainants^; and it is equally well proven that their father sold the girl Harriet to Stephen Cantrell, and received a compensation in cash for her, and although Alfred M. Carter had no right to the slave, not having reduced her to possession during the life time of Mrs. Carter,i it is quite probable, under all the circumstances, that the sale was made in good faith, believing, at the time, he had title to the property; and it is more than probable, that Stephen Cantrell thought the property Carter’s, or he never would have given five hundred dollars for a girl 12 or 14 years of age, which was a fair price for a sound title.

It may have been the misfortune of these defendants, never to have heard of their title, but as far as individual responsibility is concerned, their father, who lived until about the year 1850, is more chargeable with concealment than any one else. But the truth is, that the evidence of their title was matter of record, and as no effort was made to lull them to repose, and prevent them from making the necessary examination, it was tlieir misfortune that tlieir residence was so remote, or that they bad not been made acquainted with tlieir rights under the will, and not attributable to fraud on the part of the defendants. This view of the question of fraud is fully sustained by the Supreme Court of Tennessee, in Haynie vs. Hall’s ex., 5 Humph. Rep. 293.

As between the executor, Searcy, and legatees, there was no doubt an express trust, under which this negro was held, and if this suit had been againt Searcy, the executor, there is authority for holding that the statute would not run to bar a recovery against him, at least until after he had ceased to act as executor, or until, by an assertion of title adverse to the legatee, he had betrayed his trust. But this suit is not against Searcy the executor, but Cantrell, who, conceding that he acquired title to the slave under him, would only have been responsible upon an implied trust. Such was expressly hold to be the law in Haynie vs. Hall ex., in which case the court said:

“The executor of Elijah Ilumphrie’s will was an express trustee, but when Jesse Haynie received the money from the executor, he was placed in a very different relation to complainants, from that in which the executor stood. The law to be sure would turn him into a trustee, but he did not become so by contract, but was such by implication of law, because of his wrongful possession of ynoney, vdiick did not belong to him; nevertheless, he held it in his own right, and for his own benefit, adversely to the complainants.”

Such being the nature of the trust, if indeed, there’could be said to be any trust in this case, it is such as against which the statute bar may be pleaded. The remaining objection to the statute bar is, that they are exempt from its operation, on account of infancy, and as to one of them, also coverture.

The statute did not commence running during the life of Mrs. Carter, because under the decision of this court in Refeld vs. Bellette, the right of action did not accrue against the executor of the will for this bequest until after the payment of debts, or the settlement of the estate, and consequently, as the complainants were infants at the time of her death, they were clearly within the saving clause of the statute, in favor of infants, feme coverts, &c. The youngest of the complainants was born some eight or ten days before the death of his mother, which took place the 4th February, 1816. He was, therefore, of age about the last of January, 1837, and of course his brother and sister, who were older than himself, were, before that time, of age. From that time, therefore, the statute commenced running as to all of them, unless the marriage of the sister may serve to protect her rights, of which we will presently consider: at all events, it commenced as to the two brothers. And the rule is, that when a statute commences running, that it runs out, notwithstanding a change of residence or subsequent intervening disabilities. The removal of the slaves to Arkansas, could, in no respect, change the result, or if it could, their right of action was clearly barred after the removal to Arkansas in 1842, and before the bringing of the suit in 1851.

The last question to be considered, relates to the effect of the statute upon the rights of the complainant, Elizabeth, and her husband, James D. Fea. It is alleged, and we think sustained by the evidence, that she was under the age of twenty-one years when she married, and the question is, as she was an infant when the cause of action accrued, and continued to be such until after her marriage, and up to the commencement of this suit, did the statute bar her right of action; and if not, can she assert it during her coverture, in conjunction with her husband, after the time at which the bar would have attached against her, if she had remained unmarried, or shall she wait until her disability is removed by discoverture ?

It has been held upon high authority, that disabilities, which bring the plaintiff within the exceptions of the statute, cannot be multiplied or piled one upon another, but the party claiming the benefit of the exception, can only avail himself of the disability existing when the right of action accrued. Mercer vs. Mercer, 1 How. U. S. Rep. 37.

And although there is a conflict of opinions of several of the courts upon this point, our statute (Dig. ch. 99, sec. 28,) is conclusive upon the question in this State. In that section, it is provided, that “No person shall avail himself of any disability in this act mentioned, unless such disability existed at the time the right of action accrued.”

Under 'this statute and the authority above cited, which is sustained by the general current of decisions,' inasmuch as cover-ture was not one of the disabilities, under which Mrs. Eea rested at the time the cause of action accrued, she cannot avail herself of it to avoid the statute bar.

To the reverse of this, is the case of Crozier vs. Gano and Wife, 1 Bibb. 260. The court in that case, when, considering the sufficiency of ¿a replication, which set up that defence against the statute bar, said: “The evident design of the replication is to show that the plaintiff, Keziah, from the time her cause of action first accrued, had, at all times, until within five years next before the commencement of the suit, labored under the disabilities of either infancy, coverture, or absence from the country, so as to bring her within the savings of the statute of limitations. If the replication had really shown this, it would have been good, for although one of them (as infancy for example,) had been removed, yet if another of them accrued, as marriage, before the removal of that of infancy, and so on in succession, so that all were not removed at any one time, whereby the statute could attach and begin to run, it would have been a sufficient answer to the plea : this the replication has not done.”

Such was also the decision of the same court, in the case of South’s heirs vs. Thomas’ heirs, 4 Mon. 60. And in Neal vs. Robertson et al., 2 Dana 88, the same rule is stated and approved, but the court held in that case, that notwithstanding the rights of the wife are protected by the continuing disability of infancy and coverture, yet she can only avail herself of it after discover-ture, and that neither the husband alone, nor jointly with the wife, can take the benefit of the proviso, which was intended for her benefit alone during coverture.

After quoting the saving clause of the Kentucky statute, which is substantially like our own, the court says : “There is nothing in the language which does, of itself, constitute a saving in favor of the husband, so as to prevent his being barred. If there be such saving, it must result from the general principles of the law, in order the bettor to secure and preserve the rights of the wife. "We are not aware of any principle that will so operate. It may be, that the interest of the wife would, in some cases, be promoted by a recovery in the life time of the husband, thereby precluding the hazard of the loss of her right, by the loss of the evidence of it. But that is a description of interest not expressly protected by the words of the act, and the hazard referred to may be sufficiently guarded against by' a bill perpetuating the testimony. The saving was not intended to guard his interest against the effect of his own laches, but to save hers, so far as they were separate, and disconnected from his. We do not perceive where- • in their interests are so intimately blended, as indispensably, or even necessarily, to require an enforcement of her rights in his life time. Their interests are so far divisible, that he can maintain a suit in his own name alone for the land, and can by his separate deed alienate during their joint lives: so where a recovery is had in a suit brought by both, it is still for his sole benefit during his life. As then, the recovery is for his sole benefit, and as his separate alienation bars a recovery, on a demise in the names of both, no good reason is perceived why he should be per- " mitted to avail himself of the saving in favor of the wife, to protect him against the effect of laches in this, more than in any other description of case.”

So that giving the complainants the full benefit of these decisions, and leaving out of question the limitation act of December, 1846, limiting the right of action to recover slaves, in which there is no saving clause in favor of any one, and with regard to which we have intentionally declined to express any opinion in this case, because the counsel hare not thought proper to rely upon it, and because the subject is now before the court for determination, it is evident that the right of action would be barred. Because, if the reasons for denying the defendant to recover real estate by joining with his wife, in which he would have but a life estate by courtesy, were sufficiently strong in that case: the same reasons will apply, with increased force, in a suit like this for personal property, because he, in the event of a recovery, gets not a life estate, but an absolute title to the property. It is, therefore, in fact, his suit, prosecuted to recover property for himself under cover of the wife’s disability to sue.

He rested under no disability to sue from the time of his mar' riage, until the statute bar would have attached, if his wife had remained single, and if he suffered the time to elapse for bringing suit without doing so, he must, like other suitors, abide the consequences.

So that in any point of view in which this subject may be considered, whether considering the lapse of time in Tennessee or in Arkansas, and with all the advantages of the saving clause in our general statute, in favor of infants, feme coverts, &c., or the de-disions of the courts of Kentucky, which allow continued disabilities in case there is no intervening time between disabilities, so that the statute may begin to run, to protect the rights of the feme covert, this complainant, as well as all the others, was clearly barred by the statute of limitation.

"We are, therefore, of opinion that the Circuit Court did not err in decreeing that the complainants’ bill be dismissed with costs. Let the decree be affirmed.