
    *Baird v. Bland and Others.
    Argued May 30th, 1811, and
    reargued Jan. 20th, 1812.
    i. Marriage Settlement — Construction.--—If, by a deed of marriage settlement, duly recorded, slaves be conveyed to certain trustees and their heirs, to the use of the wife, for life; and after her death, to the use of the husband, for life; and after the death of the survivor, to the use of the children of the marriage, equally to be divided between them, and their heirs for ever; upon the deaths of the husband and wife, the children of the marriage are entitled, not only to the equitable, but the absolute legal estate,
    a. Same — Statute of Limitations — When It Runs against Remaindermen. — If such case, if the parents, in their lifetime, be deprived of the slaves, and depart this life, leaving children under age, the act of limitations does not run against the children until they attain the age of twenty-one years.
    Chancery Practice — Suit for Legal Estate. — A person entitled to a legal estate in slaves, may sue in equity to recover them, if thereby a multiplicity of suits may be prevented: calling on the defendant to discover how long he has had them in possession, and to discover and state an account of their profits.
    See Alderson v. Biggars and others, 4 H. & M. 470, and Bass v. Bass, Ibid. 478.
    Theodorick Bland and others, children of Theodorick Bland, deceased, and of Sarah, his wife, also deceased, brought suit in the late high Court of chancery against Thomas L. Lee, Peter S. Randolph, Anthony Thornton, and John Thornton, heirs of Thomas Ludwell Lee, and others, who were trustees in a deed of marriage settlement between the said husband and wife, before their marriage ; by which deed, bearing date the 4th of December, 1772, sundry slaves, and other property, were conveyed to the said trustees, to the use of the said Sarah during her life ; and, after her death, to the use of the said Theodorick, during his life, for the maintenance of himself and of the children of the marriage, “in lieu and satisfaction of any claim of dower or distribution which the1 said Sarah might claim in any of the slaves and other personal estate of which her said intended husband might die possessed ; and, immediately after the death of the survivor, the said slaves and other personal estate to be to the use and behoof of such child, or children, of the body of the said Sarah, begotten by the said Theodorick, for such estate and interest therein, and for such parts and proportions thereof, as he, by deed, or will, might appoint; and in case no such deed, or will, should be executed, then to the use and behoof of all the children of the body of the said Sarah, begotten by the said Theodorick, equally to be divided between them and their heirs for ever ; and, in default of such child or children, to the use and behoof of such person or persons as the said Sarah, by will, or deed, might appoint.”
    *The bill charged, in general terms, the trustees, and their heirs, with misconduct and negligence, by which the plaintiffs, in their minority, (both parents having died intestate, and without making any appointment by any other deed,) had sustained great losses ; and further alleged, that the plaintiff, Theodorick, attained his full age on the 6th of December, 1797, after which he discovered that a certain John Baird, jun., by some unlawful or covinous means, had obtained the possession of a ¡negro-man slave, named Will, one of the slaves in the said deed mentioned ; and that Lydia Richardson had, in like manner, obtained the possession of another, by the name of Bill; that the plaintiffs had ■demanded the said slaves, which the said John Baird, jun., and I,ydia Richardson, {who were made defendants,) had refused to deliver, although they well knew the same to belong to the plaintiffs, who, therefore, prayed a decree for the said slaves ; that each of the said defendants be compelled to discover how long he, or she, had had possession thereof, respectively, and also to discover and state an account of profits. The bill, moreover, contained a prayer, that the heirs of the trustees be compelled to carry the trust into effect.
    
    Anthony Thornton, eldest son of one of the trustees, by his answer, denied any knowledge of the transactions in question, or any responsibility arising from his father’s having been a trustee in the deed ; averring, that he was in no manner interested in his •father’s estate; from which he was to receive no advantage ; nor did he, by any means, think himself bound to carry into effect the trust in the deed executed by his father ; but he had no objection to the plaintiffs’ using his name ( if necessary) in carrying on a suit, or suits, for obtaining justice for them. ^JSTo answer was filed by any other defendant, except John Baird, jun., who relied on his being a fair purchaser of the slave, Will, at a sheriff’s sale, without notice of any dispute as to the title, and (alleging that, for more than five years past, to wit, from the28th day of J uly, 1791, he had been in possession of the said slave) claimed the protection of the act for the limitation of actions. “This defendant never heard of the marriage settlement in the bill mentioned, nor of the trustees therein, until the commencement of a suit against him in the district Court of Petersburg, in the names of the said trustees, or some of them, or their heirs, or the heirs of some of them, for the said slave, Will, which suit this defendant avers was prosecuted by the said Theodorick, the plaintiff, and by his own neglect dismissed. This defendant, therefore, denies the suggestion of the complainant to be true that he has no remedy at law : if a title can be made out under the said deed, it can be supported in an action of detinue, and ought not, therefore, merely at the discretion of the plaintiffs, to be brought in question in this Court.” The time when the bill was Sled, or subpoena issued, does not appear in the transcript of the record; but it probably was in, or before, the year 1798 ; the answer of John Baird, jun. being sworn to in August, 1798.
    The plaintiffs proved, by the deposition of John B. Ritzhugh, that the slaves in question were two of those comprehended in the deed of trust; that Theodorick Bland, and Sarah, his wife, were married in December, 1772, and both died in April, 1793, leaving issue, the plaintiffs, Theodorick, Sophia, and Henry, Bland; that, on the 5th day of March, 1798, the deponent saw the slave, Will, in the possession of John Baird, jun., when the plaintiff, Theodorick, demanded, and Baird refused to deliver him, “alleging, that he had bought him at a sheriff’s sale about seven years ago.”
    The suit abated as to Thomas Dud well Lee and Peter S. Randolph, by their deaths; and the bill being taken for ^confessed against the defendant, Lydia Richardson, for failing to appear and answer, after an attachment for that contempt had been returned executed upon her, the cause came on to be heard the 14th of May, 1805, when the late Chancellor Wythe pronounced his opinion, “that the bill is properly maintainable in the Court of equity, not only because here the plaintiffs may, as they now do, claim the benefit of a trust estate in slaves, to which species of property the statute transferring uses into possession extendeth not; but because the plaintiffs demand (what they could but partly demand in the Court of common law) both a discovery of sundry material facts, and an account of profits, which can be settled in this Court, by one of its officers, more conveniently than by a jury ; so that the plaintiffs, although relievable by an action of detinue in the names of their trustees, are more completely relievable by this mode of proceeding; and that of this relief the plaintiffs are not deprived by equity of the statute for limitation of actions and avoiding of suits,” (the agreement in consideration of marriage, in the bill mentioned, having been legally recorded in due time,) “if the defendant’s, John Baird, jun., possession, by him alleged, but not proved, had been as long as he affirmed. ’ ’ It was, therefore, adjudged and decreed, that the defendant, John Baird, jun., delivered to the plaintiffs the slave, Will, first named in the bill, and account for his profits, &c. A decree nisi was entered against the defendant, Lydia Richardson; and as to the defendants, Anthony Thornton and John Thornton, the bill was dismissed, with costs.
    
      During the same term, on motion of John Baird, jun., by his counsel, the decree was set aside, and he was permitted to file several exhibits; from which it appeared that the negro man, Will, was taken in June, 1791, by the sheriff of Chesterfield county, upon an attachment against Theodorick Bland, for a debt alleged to be due to John Pride; and, by virtue of an order of the Court of *said county, was sold by the sheriff, and bought by John Baird,-jun., July 28th, 1791, for the sum of 671.; that the suit against him, in the Petersburg district Court, in the name of the. heirs at law of the trustees aforesaid, was instituted September 4th, 1793, and dismissed, for want of prosecution, September 19th, 1796.
    May 19th, 1806, the cause being reheard, the chancellor retained his former opinion, and renewed his decree; whereupon the defendant, John Baird, jun., appealed to this Court.
    George K. Taylor, for the appellant.
    The Court of chancery had no jurisdiction; there being a plain and adequate remedy at law, by action of detinue in the name of the trustees. The legal title was, to all intents and purposes, vested in the trustees, who were living at the time when Baird obtained possession of the negro. They took upon themselves a sacred duty, to assert the right whenever it was impugned. Suit should,, therefore, have been brought by them. It appears, indeed, that the heirs of the trustees did bring a suit, which they might have prosecuted.
    There was no necessity for a discovery.’ The plaintiffs themselves have exhibited testimony. The chancellor has taken another strange ground of jurisdiction ; that an account of hire of negroes was demanded. But the plaintiffs were not compelled to come into equity for this. A jury could hatfe settled it better than a commissioner. Bland ana wife, when living, could not have sued the appellant, Baird, in a Court of equity; and their posterity can have no better title than they.
    2. The act of limitations was a bar to the claim of the plaintiffs; for the rule of equity, that the statute does not bar ' a • trust estate, holds only as between cestuy que *trust and trustees, not between cestuy que trust and trustees on one side, and strangers on the other; therefore, where a. cestuy que trust, and his trustees, are both out of possession for the time limited, the party in possession has a good bar against them both.
    
    Hay, on the" same side,
    referred also to Judge Tucker’s opinion, in Fitzhugh v. Anderson and others, 2 H. & M. 301.
    Wirt, for the appellees.
    The deed of marriage settlement was recorded, which was notice to all the world; so that Baird had constructive notice, if not actual. By the deed, the children are original purchasers, taking as remainder-men, not as heirs. The slave, named Will, was sold for Bland’s debt, and purchased by Baird, while the plaintiffs were infants. The suit was brought by one of them, as soon ás he came of age, for himself, and the other two, who were yet under age, to bring the trustees, and the holder of the property, into a Court of equity, demanding an account of the trust, and a discovery by what title the defendant, Baird, held. The witness does not show when Baird’s title commenced, or how it accrued. It was a proper case, therefore, for discovery. The plaintiffs could not know but that Baird held under the trustees themselves. The account of hire was to be founded on facts to be disclosed by the answer. At law, the plaintiffs could not have obtained a verdict for hire, because they knew not when it commenced.
    If Bland and wife had sued in equity, a demurrer to their bill would not have been sustained; because they had no remedy at law, their title being equitable only. Their neglect, or omission, cannot prejudice the present plaintiffs, who claim under the deed. The act of limitations, therefore, does not apply. The whole time, on *which Baird relies, ran during the minority of the plaintiffs. The two years in Bland’s lifetime did not run against them, for they do not claim as heirs, but as purchasers. I admit the law to be as Mr. Taylor has said, in relation to the legal title; but the rule is, that the act must run against the equitable title, as well as the legal, before the holder of the equitable can be barred. But it could not run against the infants. They are expressly excepted in the act. Their right of action accrued in 1793, when their father and mother died. The cestuy que trust must be equally negligent with the trustee to make the statute a bar against both. In Llewellin v. Mackworth,  the time was counted against the cestuy que trust, who was of full age. In Townshend v. Townshend,  it was counted not upon the trustee, but upon the man who had the substantial claim to the property. No case, or dictum, can be shown, that the act shall run against the cestuy que trust merely on the ground that it ran against the trustee, or that the former cannot sue in equity, because the latter cannot sue at law.
    Hay, in reply.
    The chancellor’s benevolent feelings influenced his judgment. The decree is fraught with error from beginning to end. Suppose a landed estate conveyed to trustees to receive rents and profits, and they and cestuy que trust are both disseised; could they come into equity to try the title? Ljectment should be brought in the names of the trustees.
    A plaintiff should not come into equity, merely for a discovery of facts which can be proved by testimony at law. A bill for discovery lies in cases only where the discovery cannot be obtained without the defendant’s answer. In what manner Baird got possession of the slave was unimportant, since the plaintiffs claimed under their deed. When he got possession might easily have been proved by the neighbours. The mere allegation, that the plaintiff knows not when the defendant obtained possession, is not sufficient to give the Court of equity ^jurisdiction. Such a doctrine would destroy the common law jurisdiction altogether.
    As to the act of limitations, the trustees discontinued the suit, brought by them, before the time had elapsed. Bet the consequences be upon them. If they were barred by the act, the legal title was gone; neither they, nor the cestuys que trust, could have recovered at law in 1797, the five years having then elapsed. Bquitas sequitur legem. If the trustees were barred at law, the cestuys que trust must be barred in equity. It is monstrous that the plaintiffs should give the Court of equity jurisdiction, merely by coupling the trustees, as defendants, with Baird, whose right was complete at law by his five years’ possession.
    In 1 Call, 428, it is said that the statute runs, both in equity and at law, in favour of disseisors and tortfeasors. Surely, then, in favour of a bona fide purchaser. Infants are not the only objects of the fa-vour of a Court of equity: fair purchasers are equally favoured. Baird bought at a sheriff's sale, and paid his money, without any suspicion of a defect of title.
    The trustees executed the deed, and bound themselves to fulfil the trust. They have neglected their duty: but Baird is not to pay the penalty. They ought to be responsible to the cestuys que trust. Between them and the plaintiffs, I admit the Court had jurisdiction. Yet the chancellor dismissed the bill as to them, and gave relief against the wrong person !
    The great question is, can the present plaintiffs stand in a better case than their own trustees? Can the cestuys que trust be entitled to recover, when the trustees cannot either in law or equity? The moment Baird got the property, there was an existing right of action in the trustees: (it was totally unimportant whether Bland and wife were alive or not:) the act therefore began to run immediately.
    *Wirt referred to Sugden, 242, citing Bytton v. Bytton, 4 Bro. Ch. Rep. 441.
    Curia advisari vult.
    
      
      Marrlage Settlement — Construction.—See mono-graphic note on "Husband and Wife” appended to Cleland v. Watson. lOGratt. 159.
    
    
      
      Statute of Limitations. — See monographic note on “Limitation of Actions” appended to Herrington v. Harkins, 1 Rob. 591.
    
    
      
      Note. There was no demand, in the bill, of an account in what manner the trust had been executed; or by what title the defendants held the slaves. — Note in Original Edition.
    
    
      
      Note. According to the case of Robinson’s administrator v. Brock, 1H.AM. 213, the plaintiffs, in this case, might have brought an action ol detinue in their own names, without using the names of the heirs of the trustees. — Note in Original Edition.
    
    
      
      Note. See Rev. Code, vol. 1, ch. 90, sect. 14, p. 159.
    
    
      
      Note. It does not appear, from the transcript of the record, whether any of the trustees were then living, or not. The hill stated that th ey severally died in the years 1780,1782, and 1783 ; hut there was no proof on the subject. — Note in Original Edition.
    
    
      
       4Bac. 473.
    
    
      
       Per Lord Hardwicke, in the case of Llewellin v. Mackworth, 2 Eg. Ca. Ahr. 579, pi. 8. See also Townshend v. Townshend, 1 Bro. Oh. Rep. 554; Harrison v. Harrison, Call, 428.
    
    
      
      Note. See Tabb and others v. Archer and others, 3 H. & M. 399, pi. 2.
    
    
      
      This appears to be a mistake. See ante.
    
    
      
       2 Eq. Oas. Abr. 579.
    
    
      
       1 Bro. Oh. Rep. 554.
    
    
      
      Note. Tile bill was not dismissed as to the trustees, but their heirs at law.---Note in Original Edition.
    
   The cause was reargued, before a full Court, January 20th, 1812; (in the absence of the reporter;) and, afterwards, on Monday, the 11th of February, 1813, the president pronounced the following opinion of the Court:

“This Court is of opinion, that the appel-lees, upon the deaths of their father and mother, took a legal estate, under the deed of marriage settlement, in the slaves in the bill mentioned; and that, being infants at the time that estate vested, they were within the provisions of the act of limitations, in relation to infants; and that, therefore, they are not barred by that act. And the Court is further of opinion, that, although the appellees have a legal title to the slaves in question, yet, for some of the reasons stated in the decree, and to prevent a multiplicity of suits, the Court of chancery had jurisdiction of the cause; and, for the reasons aforesaid, affirms the decree of the chancellor.” 
      
      Note. See Robinson's Administrator v. Brock, 1 H. & M. 213-255.
     