
    
      Philip W. Pledger vs. Henry Easterling.
    
    Land was devised to trustees in trust to permit A. B. to have the use and occupation for life, and after his death to convey to the heirs of his body, with a limitation over if ho died without such heirs; and with further power, in a certain event, to convey the land to A. B. in fee, discharged of the trust. In February, 1837, defendant, under some agreement to purchase, entered into possession of the land, and held the same adversely. In 1845 the trustees conveyed the land to A. B., who, in September, 1848, sued the defendant therefor: Held (1) that, under the devise, the legal title to the land was in the trustees; (2) that, in February, 1837, the statute of limitations commenced to run against them; (3) and that, as the statute of limitations would have barred the trustees before September, 1848, had the title continued in them, so it barred A. B., who occupied, under his conveyance, no better position, as against the defendant, than they would have done had the conveyance not been executed.
    
      Before Evans, J., at Marlboro, July, Extra Term, 1850.
    The following is the report of his Honor, the presiding Judge:
    “This was an action of trespass to try title. The facts connected with the questions made in the notice are these: By the last will and testament of William Pledger, father of the plaintiff, a large real estate (of which the land sued for was part) was given to certain persons named therein, as trustees, to permit the plaintiff to have the use and occupation, with a limitation over if he died without issue. There was a clause in the will, whereby the trustees were authorized, in the event of his marrying and having a child, to convey the land to him in fee, discharged from the trust. The testator died soon after the making of the will, and the plaintiff took possession. The testator’s widow was the executrix, against whom, as such, a judgment had been rendered for six or seven hundred dollars. Besides this sum. the plaintiff was largely indebted in the sheriff’s office. After offering this piece of land to two others, and making a contract with one of them, he entered into an arrangement, whereby he agreed to sell the land to the defendant for four thousand two hundred dollars; but, as the legal estate was in the trustees,'it was necessary to sell the land at sheriff’s sale, in order to perfect the title under the execution against the executrix. The land was accordingly levied on and.sold by the sheriff, when the defendant became the purchaser, at the price above stated. The sale was made in February, 1837, the titles executed a few days after, and defendant went into possession within a month after. He paid seven hundred dollars in cash to the sheriff, and gave notes for the balance — all of which the plaintiff received. In 1845 the trustees executed the power given them by the will, and conveyed the estate to the plaintiff.
    “In September, 1848, this action was brought, the defendant having been in possession since his purchase in February, 1837. The allegation under which this action was brought was, that the execution was for a debt of the executrix, and not of the testator, and that in the sale there was a combination between the sheriff and the defendant to sell this piece of land for less than it was worth. Evidence was offered on both of these points, but it is unnecessary to state it. In my judgment, neither proposition was sustained. After the evidence was closed, I suggested to the plaintiff’s counsel that, as the defendant had had eleven years and a half adverse possession, I did not see how the plaintiff could avoid the statute of limitations. As then advised, I should feel bound to charge the jury that the plaintiff’s action was barred. I made this suggestion to save the time which would bo consumed in the argument on the facts. At my suggestion the plaintiff submitted to a nonsuit, with leave to move to set it aside.
    “It was clear the statute began to run against the trustees in February, 1837. If the estate had remained in them, they would be barred; their conveyance to the plaintiff, in the mean time, would not arrest it.”
    The plaintiff appealed, and now moved this Court to set aside the nonsuit, on the following grounds:
    1st. Because his Honor erred in holding that the plaintiff’s claim was barred by the statute of limitations.
    2d. Because the statute did not commence to run against the plaintiff until the execution of the deed of the trustees, in October, 1845, and he cannot be barred of his rights by any time which may have run against the said trustees.
    
      Hunt, Hanna, for the motion.
    
      Thornwell, Dudley, contra.
   Curia, per

O’Neall, J.

In this case we are satisfied with the decision of the Judge below.

The legal estate was in the trustees, both by the words of the will and also by the necessary implication arising from the direction to hold for the plaintiff during his life, and after his death to convey to the heirs of his body; and failing such, then to the testator’s children surviving. The further direction, authorizing them to convey to the plaintiff absolutely on a certain contingency, only enabled them to divest themselves of this legal estate. Doing so could not affect the defendant as to the effect of his possessory rights. When the trustees conveyed to their cestui que use, the statute, which had previously began to run, run on exactly as it would in the case of a descent cast on an adult heir, where possession had begun in the lifetime of the ancestor.

In such a case, when the ten years ran out, the statute would bar the heir. So here. The estates of cestui que use and of the trustees are, in law, one legal estate: and whatever would have barred the trustees, if they had not conveyed, will bar him.

It is true, if the plaintiff had been a minor when the conveyance was made to him, it might have been that his infancy would have arrested the statute. But even that is by no means certain.

Here, however, he was of full age, while the whole possession of the defendant was maturing — and therefore he has no cause to complain that the statute is opposed against his title.

The motion is dismissed.

Evans, Wardlaw, Frost, Withers and Whitner, JX, concurred.

Motion dismissed.  