
    *George Carlisle and others, Executors of David Loring and others v. Henry D. Foster, Acting Executor of John Young, deceased.
    1. An action for the enforcement of a trust, and for an account by die trustee to the cestui que trust, is not triable of right by a jury, but by the court.
    2. "Where the court in its discretion, on the trial of such action, submit certain. questions to a j ury for trial, it is not error for the court to refuse instructions to the jury on points irrelevant to the questions submitted to them, however pertinent they may have been to other parts of the case.
    3. Where a question is submitted to a jury, whether any notice has been given of a trust to the cestui que trust, and the verdict responds that “ no suffi deni notice was given,” and no exception is taken to the form of the verdict until error brought, it will be held to answer the question in the negaative.
    
      4. Time does not begin to run against a cestui que trust until he has knowledge, or may fairly be presumed to have knowledge, of the existence of the trust.
    
      ■5. Where the operation of a trust is, by the terms of the instrument creating it, conditioned upon the execution of a release by the cestui que trust, who is brought into court as a defendant, claims the benefit of the trust, and alleges that such release has been duly executed, but fails to prove such allegation, and thereupon the court adjudge the enforcement of the trust in his favor, there is no error of which any party can complain, inasmuch as the record itself, operating as an estoppel, is equivalent to such release.
    Error to the Superior Court of Cincinnati.
    The record discloses the following state of facts:
    On the 20th of May, 1842, Charles Sontag, of the city of Cincinnati, being the owner of certain property known as the “ Chemical Laboratory,” which was subject to two certain mortgages in favor of David Loring and the estate of John Young, deceased, under which mortgages said property was about to be sold at judicial sale, he (Sontag) transferred to said Loring sundry ehoses in action and assets, set out in the pleadings, “ for the uses and purposes and upon the conditions” following, to wit:
    “1. If at the time of the sale of the Cincinnati Chemical Laboratory, under a foreclosure of two mortgages held by said Loring and the estate of John Young, .^deceased, the said Loring becomes the purchaser, and obtains possession of the same, he skáll then re-transfer and assign to the executors of the aforesaid John Young, deceased, for their use and benefit, all the said debts and property, upon condition that they release the said Sontag from all obligations; otherwise, the aforesaid debts and property, or whatever may have been realized therefrom, are to be retransferred to the «aid Sontag.
    “ 2. If D. Loring does not become the purchaser of the aforesaid laboratory, then he shall have and hold for his own use and benefit all the said debts and property.”
    David Loring did, at the sale referred to, become the purchaser of said laboratory.
    On the 16th of January, 1843, said Sontag, by a certain writing; assigned said assets to James Glascoe, who at a subsequent date assigned the same to Douglass, the plaintiff below, for collection from the plaintiffs in error. On the 5th of December, 1854, Glascoe, by a written assignment, undertook to transfer said assets to Winthrop B. Smith.
    On the 12th of February, 1855, Peter Douglass filed his petition, in the Superior Court of Cincinnati, to recover from the executors of Loring, the now plaintiffs in error, the proceeds of said assets, claiming the same in right of James Glascoe, the assignee of Sontag.
    Loring’s executors answered the petition on the 15th of March, 1855, alleging, among other things, that Winthrop B. Smith was the real owner of said assets, and that they had settled with him as such therefor.
    On the 27th of April, 1855, the court entered an order, making Henry D. Foster, the executor of Young, and now defendant in error, and also W. B. Smith and James Glascoe, parties to the cause.
    On the 30th of November, 1855, Henry D. Foster, who resided in Pennsylvania, filed his answer and cross-petition as the representative of Young’s estate, claiming for said *estate the contested fund, under the urovisions of the original assignment.
    
      
      W. B. Smith also filed a counter-claim, alleging himself to be the owner of the fund, as the assignee of G-lascoe.
    Boring’s executors answer the cross-petition of Foster, denying his title and alleging the right to the fund to be in Smith.
    IJpon the trial, two issues of fact alone were submitted to the jury, the other questions being reserved, by the order of the court, to be decided by the court. The two questions of fact submitted to the jury were, first, what amount of money had Boring, or his executors, received upon the assets convoyed by the assignment; and, second, whether Young’s executor had been notified of the trust, or had refused to accept the property under its provisions.
    The defendants below asked the court to charge the jury as follows:
    1. There being no proof of a release of Young’s executors, or of Young to Charles Sontag, Young’s estate can have no claim.
    2. If Young’s executor had notice of the assignment made by Sontag to Boring in his favor, and neglected to make a release for six years thereafter, his claim is barred.
    3. If he, under the same circumstances, neglected to make the release until 1855, the claim was a stale one, which the court would not enforce.
    The court declined to give the instructions asked; and the jury in their verdict respond to the questions submitted to them by finding the amount of the assets collected to be $504.14; and that “sufficient notice was not given to the executors of Young, deceased.” A motion for a new trial having been made and overruled, a final judgment was rendered at the next ensuing February term of the court, in favor of Foster, the executor of Young’s estate, and charging the costs of the action and the attorney’s fee of Boring’s executors upon the fund.
    A petition in error was prosecuted to the general term, *on which the judgment of the special term was in all respects affirmed, except as to costs and attorney’s fees, in which respect the judgment was modified.
    This petition in error is now prosecuted to reverse the judgment of-the general and special term in favor of said Henry D. Foster.
    The plaintiffs’ assignments of error are as follows :
    1. That the. said court, at the special term thereof, erred in refusing to charge the jury, as requested by the plaintiffs in error.
    
      2. That the court at special term, erred in refusing to give a new trial by jury.
    3. That the court at said special term, erred in refusing to give a new trial by the court.
    4. That the judgment of the special term was given for the said Poster, when it should have been given for the plaintiffs in error.
    5. That the said court at the general term thereof, erred in affirming the judgment of the special term as to said damages and order.
    
      Mills & Soadly, and Alex. S. McGuffey, for plaintiff in error.
    
      Smilh & Lowe and L'dward Woodruff, for defendant in error.
   Brinkerhorr, C. J.

This was not an action for the recovery of money only, nor for the recovery of specific real or personal property; but was an action, in the nature of a bill in chancery, for the enforcement of an express trust, and for an account by the trustee to his cestui que trust. It was, therefore, a matter of discretion in the court below, whether it would submit any questions ■of fact, and if so, what questions, involved in the case, to be tried ¡by a jury. It in fact submitted to the jury but two questions; and ;as the instructions to the jury asked for and refused, had no relevancy *to the questions submitted to the jury, there could be mo error in refusing them, however pertinent they might have been to other parts of the case. This disposes of the first assignment <of error.

Exception is taken in argument here, though none was taken ¡in the court below, so far as appears from the record, that the ver<dict of the jury does not respond to one of the questions submitted to them by the Gourt; the question submitted being, whether Young’s executor had any notice of the trust, and their answer being that he had not “ sufficient notice.” Now, the question of notice, ¡and its sufficiency, was a mixed question of law and of fact, in re•gard to which, it is to be presumed, the court below gave the jury proper instructions ; and giving to the court below the benefit of this presumption, we think the verdict on this point was sufficiently ’responsive to the question submitted, and fairly enough answers it •in-the negative.

There was evidence, as is shown by the record, to sustain the ifinding of the jury on this point; they and the court below had better means of judging of its credibility than we can have; and we are not.disposed to disturb it.

The executor of Young, then, having had no notice of the existence of the trust in favor of the estate he represented, he would not be barred from the enforcement of his rights by any lapse of time'. Time would not begin to run against him until he acquired, or might fairly be presumed to have acquired, knowledge of his rights in the premises. Hill on Trustees, 168, 583.

Loring, by accepting the assignment from Sontag, and the purchase of the labratory property,” became fully vested with the trust for the benefit of Young’s estate ; and he could be discharged from the obligations which that trust imposed, only by their fulfillment, or by the refusal of the representative of Young’s estate to accept its benefits upon the conditions annexed, or some act, or omission *to act, equivalent to such refusal. The trust was not fulfilled, and no such refusal, or its equivalent, is made apparent in the record.

But by a recurrence to the terms of the assignment from Sontag to Loring, it will be observed that the assignment was to operate as a trust in favor of the executor of Young, only on condition that he released Sontag, the assignor, from all obligations. And it is contended that such release was not proved, and that therefore the court below erred in giving effect to the trust.

Young’s executor, in his answer, alleged that such release had been duly executed. This was denied in the reply; and on the trial there was a failure to prove the due execution of the paper produced, purporting to be such release. But Young’s executor' having been brought into court as a defendant, appeared and claimed the benefit of a trust, which he was entitled to only on the condition of such a release. His answer, which is part of the record, alleges its existence; and this record will therefore forever operate to estop him from denying it. It seems to us, therefore, that this error, if error it be, can never operate to the injury of the plaintiffs in error, or any of them. The record itself is equivalent to the release, of the absence of which they complain.

On the whole we can see no error in the record and proceedings of the court below of which the plaintiffs in error can complain.

Judgment affirmed.

Scott, Sutliff, Peck,'and G-holson, JJ., concurred.  