
    Philip Moore v. Mary J. Porcher, Administratrix of James Porcher, deceased.
    In 1803, the defendant’s intestate took possession of certain slaves, and some other personal property of inconsiderable value, to which the complainant, and his brother, both at that time infants, were intitled, by the trusts of a deed, executed by their mother; the trustees appointed by the deed not having acted under it. The complainant’s brother, having come of age, made his will, by which he bequeathed one half of his estate to complainant, and subsequently died. In 1814, the defendant’s intestate delivered over the slaves to complainant; and in 1830, complainant filed a bill, for an account of the hire of the slaves, and the proceeds of the other property, which had been sold. Held to be a stale claim, and bill dismissed with costs.
    When a trustee does an act, which purports tobe an execution of his trust, he is thenceforth divested of his fiduciary character, and will he protected against an account by the statute of limitations.
    This was a bill for an account, and came on to be heard, at Coosawhatchie, in January, 1830, before Harper, Chancellor, from whose decree, the case will be fully understood.
    
      Harper, Ch. The pleadings and evidence, make out the following case. In 1796, Mary Moore, the mother of complainant, executed a deed, by which she conveyed to trustees, three slaves, and certain other personal property, consisting of cattle, &c., in trust for her two sons,' Daniel Moore, since deceased, and the complainant ; reserving to herself the use of the property, for life. She soon after married one Zimmerman, and retained possession of the property. After the death of herself, and Zimmerman, both of which happened, in, or about.the year 1803, the trustees not acting, the intestate, James Porcher, took possession of the children, and of the property conveyed by the deed ; and, according to the testimony of Thomas Roberts, sold the personal property, exclusive of the slaves, for $600, or upwards. Mr. Porcher, in taking possession of the children, and their property, seems to have acted merely as a friend, or voluntary trustee.
    In 1807, Daniel Moore, who had assumed the name of Porcher, came of age, and died in the same year, having made his will. By this he devised his whole estate to the complainant, and his half sister, Harriet Zimmerman; with a limitation to the survivor, in the event of either dying without- leaving issue. The intestate, James Porcher, who was appointed executor, soon after proved the will of Daniel Moore, and qualified. . The complainant came of age in 1813, and on the 3d of January, 1814, according to a receipt produced in evidence, received from Mr. Porcher, the slaves belonging to himself, and his sister Harriet, under the deed, and will. This is the last transaction in evidence, until the 17th Feb. i'tmry, 1821, when, according to the testimony of Joshua Kirkland, there was a meeting of the parties concerned, complainant,j; and one Jones, who had married Harriet Zimmerman, at the house of Mr. Porcher, who was present, to make a division of the property, between complainant and his sister. The property, I suppose, was the slaves, which the witness stated to have been in complainant’s possession. The division was to be made by friends; but Jones brought no one to apt for him, and nothing was done, Mr. Porcher saying that the business might lie over till another time. At this meeting, at the request of Mr. Porcher, complainant signed the following paper: — “I do hereby protest against Mr. James Porcher allowing the estate of Jacob Zimmerman the amount of the perishable property, that was sold for that estate, by him, and Mr. Nicholas Winckler, as I was intitled to one half by my own right, and one half of my brother Daniel Porcher’s half, which gives me a title to three-fourths, by my mother’s deed to my brother Daniel, and myself: a reference to the deed will fully show, as Mr. Zim. merman had no property when he married my mother. Philip Moore.” '
    Mr. Porcher died on the 7th February, 1823. There was evi-' •/ ' dence of demands by the complainant, after Mr. Porcher’s death, on his administratrix, the present defendant, in respect of the present claim ; and of her referring him to her lawyer, Mr. Martin, to effect a settlement; as well as of some attempts to settle between themselves. She said she knew nothing of the business.
    The bill which was filed in January, 1830, claims an account of the perishable property, sold by Mr. Porcher, after the death of Zimmerman; of the hire of the slaves, before their delivery to complainant, in 1814 ; and of the personal estate of Daniel Moore, or Porcher. The answer relies on the lapse of time, and statute of limitations, and states circumstances to aid the presumption of some settlement between complainant, and defendant’s intestate, in his life lime.
    I am of opinion, that this is a stale claim. From the time of the complainant’s coming of age, until the death of Mr. Porcher, nine or ten years had elapsed ; and from that time, up to the filing of the bill, six or seven years. It was replied, however, on the part of the complainant, that Mr. Porcher was a trustee, in whose favor time will not run. He constituted himself a trustee, with respect to the property conveyed by Mary Moore, and was expressly, and directly a trustee, as executor of Daniel Moore. Without any authority to the purpose, I am of opinion, from the reason and analogy of the law, that when a trustee does an act, which purports to be a final execution of his trust, the statute will begin to run from that time, so as to bar an account. It is said, in general, that it takes twenty years to bar an equity ; but the Court often applies the bar of the statute, in cases of demands, analogous to legal demands, although the remedy may be only in equity. An account of the rents and profits of real estate will be restrained, in England, to six years before the filing of the bill, although the person in possession may stand in the character of a trustee, in analogy to the action at law. See Hercy v. Ballard, 4 Bro. C. C. 468 ; Stackhouse 2i. Barnston, 10 Ves. 466, 469 ; and Reade v. Reade, 5 Ves. 744. A bailee, or an agent, who receives money for his principal, is quasi a trustee ; and his possession is not adverse, nor will the statute run. But he may determine that character, either by paying over the money, or refusing to pay on demand, and claiming for himself, and his possession will thenceforth be adverse. A trustee, in equity, cannot determine his character of trustee, by refusing to perform ; but he may by performing his trust. The possession of a trustee is not adverse ; it is the possession of the cestuy que trust, and the statute does not apply : but when he does an act purporting to be an execution of the trust, he shakes off the character of trustee, and thenceforward stands in an adverse relation. If the cestuy que trust supposes that the trust has not been fully and faithfully .performed, he is put upon the assertion of his right. So I think an executor, who makes a general distribution of an .estate, will be protected from an account after the lapse of four years. If he makes a full and fair distribution, he no longer sustains the character of executor; but the trust is discharged. If there be fraud, the statute will not run until it is discovered. If the distribution purports to be a partial one, the character of executor continues. It would be unreasonable that residuary legatees, who have been paid off, should be at liberty to come for an account at any distance of time, suggesting mistakes, or that they were intitled to more than they had received. The time allowed by the statute is long enough for the discovery of errors.
    In the present case, the intestate, James Poreher, delivered over, all that remained of the capital of the property conveyed by Mary Moore’s deed, and the bulk of Daniel Moore’s estate, in 1814. The personal property was very inconsiderable. I think this purports to be a general execution of the trusts, and the statute began to run from that time. The claim to an account of rents and profits is only incidental to the claim for the capital of the estate. There is no charge of fraud, or if we suppose the allegation of a breach of trust to amount to the charge of fraud, the complainant must have known of it, from the time he came of age.
    The transaction of 1821, relating to the division of the slaves, and the writing'called a protest, were relied upon as a recognition of this claim, by Mr. Poreher, and of his still sustaining the charac. ter of trustee. They do not seem to me to have any such effect.
    The division contemplated in 1821, between the complainant, and his sister, was to be an execution of the trust, which he had undertaken in 1814. Mr. Poreher attended that transaction, because he was interested in it. Having devolved his trust, so far as he was concerned, on the complainant, he might have been responsible to Harriet Zimmerman, if complainant had failed to discharge it faithfully. This accounts for his appearing as a party in that transaction, and, certainly, does not amount to any thing like an admission of liability to complainant,
    
      The writing, called a protest, if it is to have any effect at all, seems to me rather unfavorable to complainant’s claim. The only' purpose which I conceive Mr. Porcher to have expected to answer, by taking that paper, is this; to shew, that he had taken possession of the property mentioned in it, at complainant’s instigation, or, at all events, that he had adopted the act, and made it his own, and to secure himself, and throw the responsibility on complainant, in the event of its being demanded by any representative of Zimmerman. But he could be intitled to such acknowledgement, or security, only on the supposition of his having paid over, or accounted for, the proceeds of that property to complainant, or being just about to do so. If these. proceeds were in his hands, to be paid over to either party, that should shew himself intitled, there was no necessity for such a paper, or any title to demand it. It is difficult to give a meaning to this transaction, but I can think of no other than the one 1 have suggested. Tf this.be the true one, it rather aids the presumption of Mr. Porcher having accounted for this property to complainant. This presumption is further strengthened by the circumstance, that the income derived from this property could hardly have been sufficient for the support of the children. I must conclude, that complainant forebore so long to demand an account from Mr. Porcher, in his life time, because he was conscious of being intitled to nothing. Nor do I think the negociations with the defendant,,after the death of her intestate, sufficient to obviate 'the effect of the lapse of time. If the demand was barred before the death of the intestate, the administrator had no right to revive it. Nor do they seem to amount to any admission of complainant’s being intitled to an account. It may have been merely an attempt to satisfy him that nothing was due.
    It is ordered, and decreed, that the bill be dismissed, with costs.
    The complainant appealed, and now moved to reverse the decree.
    Bailey, for the motion.
    It is conceded, that it requires twenty years to bar an equity ; and then it is difficult to understand, how a trustee can be protected against an account by the statute of limitations. And it is certainly an objection of great weight, that no direct authority to the purpose can be produced. All the cases, in which the bar of the statute has been applied in equity, are cases of legal demands, or founded upon legal titles; although attended with incidental circumstances, which authorized, or required, a resort to the equity jurisdiction.
    Such were the cases of Fisher v. Tucker, 1 M’O. Ch. 169, and Van Rhyn ». Vincent, lb. 810, Both of these were cases of merely legal demands. ' They were substantially actions of assumpsit; and it is upon this ground that the decree is based, in both cases. In the former of them, Waties, Chancellor, whose decree WaS a®rmet^ by the Court of Appeals, said, “ It is manifest, that the present demand was originally a legal one, and the circumstance of bringing it into this Court, will not alter its original nature.” 1 M’C. Ch. 174. So in Van Rhyn v. Vincent, Nott, J., in delivering the opinion of the Court of Appeals, observes, “ the trust is not the foundation of the jurisdiction of the Court of Equity in this case, but the want of a discovery. And where a party has a mere legal demand, and the Court of Equity has a concurrent jurisdiction for the purpose of discovery, the defendant is as well intitled to the benefit of the statute of limitations in a Court of Equity, as at Law. The mere change of forum cannot change their legal rights. For although it is a rule in the Court of Equity, that lapse of time will be no bar between a trustee and cestuy que trust, yet that doctrine applies only to technical, equitable, trusts, and not to those constructive trusts, of which Courts of Law, as well as Courts of Equity, have jurisdiction.” 1 M’C. Chr 313. It is here obvious, that the terms constructive trusts are applied only to legal demands; and the distinction between them, and equitable trusts, runs through all the cases. The cases are collected and commented on, in the reports of Fisher v. Tucker, and Van Rhyn v. Vincent, and it is unnecessary to refer to them more particularly. Indeed, the principle is abundantly illustrated, by the cases cited in the decree in this case. In Hercy v, Ballard, 4 Bro. C. C. 468, which was for an account of rent, it is stated, that Osmer, the defendant’s testator, “ entered as tenant to the trusteesand so the demand was purely legal. So in Reade v. Reade, Lord Rosslyn said, “ My idea in giving you the two fourths is, that you are legally intitled : then the circumstance of your being obliged to sue in equity, does, not alter the nature of the action for mesne profits.” 5 Ves. 749. ■
    Stackhouse v. Barnston, is an important case, because it marks the distinction in a case to which the statute does not apply. Tha was a bill for an equitable charge upon an estate, and it was held, that the statute was not a bar to the charge itself, or to any part of the arrears. In reference to the latter, it was said by the Master of the Rolls, “ As to what is contended by the defendants, that the account should be restrained to the last six years, that is frequently done as to rents and profits : but that is by analogy to the legal limitation ; where the legal owner would be barred from an action for mesne profits for more than six years, the equitable owner being restrained in the account to the same period. But that does not apply to such a case as this.” 10 Ves. 469.
    The distinction is founded on sound principles. As applied to legal demands, the statute is wise and just; and it would be absurd, that coming into equity should change the character, or legal incidents of the debt. But it is otherwise as to trusts. They originate in confidence, and are in direct contrast with the notion of a debt : and it would violate the fundamental principle of the trust, and lead to the most mischievous consequences, to permit the trustee, after he has assumed the trust confided to him, to convert it into a mere debt, or to be discharged by any thing short of a complete execution.
    But it will be said, that the defendant’s intestate was only constructively a trustee ; for he was not a party to the deed, and the legal estate was never vested in him. To this it might be answered, that as personal property passes by delivery, and as the intestate took possession, with the assent of the legal owners, and all the parties interested, for the express purpose of executing the trusts of the deed, it may very well admit of question, whether the legal estate was not in fact vested in him : but it is sufficient to say, that he had the legal possession, and could not be sued as a trespasser ; and although the possession might have been recovered at law, after demand made, yet the intermediate profits could, strictly, have only been recovered in this Court. The intestate then was a trustee technically, and directly, and not by construction merely ; and he cannot, therefore, be protected by the statute. Besides, as the executor of the will of Daniel Porcher, he was, as to one moiety of the property, beyond all question the legal owner, and strictly, and technically, a trustee for the legatees; and yet the decree allows him the protection of the statute, as to the whole estate.
    Finally, if the principle of the decree be conceded, it cannot apply in this case. Nothing was delivered in 1814 but the slaves; nor is there any thing in the receipt to shew, that the trustee intended this delivery to be regarded as the final execution of his trust. As late as 1821, seven years afterwards, it appears by the protest, that the other property had never been delivered, or accounted for. This paper protests against Mr. Porcher’s allowing that property to the estate of Zimmerman ; and by its terms, excludes the idea, that he had accounted for it to the complainant, or his sister. No doubt that the paper was required, with a view to ant immediate adjustment of the account; but it never was adjusted. meeting m 1821, was had for the very purpose of effecting this settlement, and the reason of its not being accomplished then, is stated in the decree. The same reason would occasion delay after-war^s 1 an<^ death of Mr. Porcher put it out of his power, personally, to do justice to the complainant.
    It is made a ground of reproach to the complainant, that he did not sue Mr. Porcher in his life time. Had Mr. Porcher lived, there would have been no occasion for this bill: And is the complainant to blame, because he felt, as he feels now, that he might confide in his trustee? Was he to sue his friend, and benefactor, so long as he did not refuse to do justice to him? Was he to repay his obligations to Mr, Porcher, by bringing him into this Court, without an absolute necessity? That is the doctrine of the decree : and the great objection to it is, that whilst it works individual injustice in this case, by the introduction of a new rule, the rule itself is destructive of that personal confidence, which is of the essence of every trust.
    Coicock, contra.
    
    It is not disputed, but that the statute is a bar in the case of constructive trusts; and this is conclusive as to the present case : for as to all the property contained in Mary Moore’s deed, and it is not pretended that there is any other, Mr. Porcher could, only be considered a constructive trustee. He was a stranger to that deed; and all the evidence is, that he took possession of the property as the friend of the infants. If we suppose this to be done with their consent, it makes him no more than a naked bailee. It does not admit of argument, that he never had the legal title ; and therefore he can only be regarded as a trustee by construction. A technical trust is that in which the rights of the cestuy que trust rest altogether in conscience, the legal estate being in the trustee. Decouche ». Savetier, 8 Johns. C. R. 190. In Lockey Lockey, Pr. Ch. 518, the defendant had received the profits of an infant’s estate, and the statute was held to apply. Is there any difference between that case and this ?
    But the principle established by the decree, is clearly applicable, even to strictly technical trusts. The statute will not bar a trust; but when the trust is executed, the relation of trustee and cestuy que trust, is at an end. The confidence, which is said to be of the essence of the trust, is determined ; and every principle, on which the statute of limitations is enforced by Courts of Equity, applies. In Hovenden v. Lord Annesley, 2 Sell. & Lefr. 633, Lord Redesdale said, “ If a trustee is in possession, and does not execute his trust, the possession of the trustee, is the possession of the cestuy que trust; and if the only circumstance is, that he does not perform his trust, his possession operates nothing as a bar, because his possession is according to his title.” But if he does perform his trust, or does that which purports, and is understood, to be a final performance, can it be said thenceforth, that his possession is accord, ing to his title 1 Here the trust was executed, and the property delivered to the cesiuy que trust, sixteen years before his bill was filed; and yet, he now seeks an account of the rents and profits, previous to that delivery. In Rowland v. Best, 2 M’C. Ch. 317, even where the complainants were permitted to recover the property, the account for rents and profits, was restricted to four years next before the filing of the bill.
    This case strongly exemplifies the justice of the rule, laid down in the decree. It is conceded, that Mr. Porcher, was the friend and benefactor of the complainant; and it is inconceivable, that he should have suffered the account to have remained unsettled, from the delivery of the property in 1814, until his death in 1823. Seven years after his death, this bill is filed against his'executrix, who has.no personal knowledge of the transactions, and is without any means of rendering the account called for; and every principle of equity requires, that the consequences of his long neglect should fall upon the complainant.
    Whether there was a sufficient final performance of the trust, to warrant the application of the statute, depended upon the evidence, and was a question exclusively for the Chancellor ; and even if his judgment were not conclusive, there is nothing brought to the view of this Court, to authorize a reversal of it.
    Bailey, in reply.
    In Decouche v. Savetier, the statute was held not to apply; and the distinction is there said to be, where a party takes possession as trustee, and where he takes possession in his own right, and is afterwards, by matter of evidence, made a trustee by construction. 3 Johns. C. R. 216. Here the defendant’s intestate took possession as trustee, and for the avowed purpose of executing the trusts.
    In Lockey v. Lockey, Pr. Ch. 518, the statute was held to be a bar, expressly on the ground, that there was no trust. The report is very brief, and the facts are not stated ; but it is evident,'from the language of the judgment, that the defendant was in the condition of a mere trespasser. The conclusion is, that “ as the complainant is barred of his action of account at law, so shall he be of his remedy in this Court.”
    In Hovenden v. Lord Annesley, Lord Redesdale said, “ Courts of Equity, are bound to yield obedience to the statute of limitations, uPon leg<d titles, and legal demands." 2 Schr. and Lefr. 630. And throughout the opinion of his lordship, the distinction as to the cases of trust, to which the statute is, and those in which it is not applicable, is laid down to be, between trusts created by the act of the parties, and those raised by the Court, by construction, upon legal titles, and legal demands. Ib. 633.
    As to the case of Rowland v. Best, it is manifest, that the hardship of the case, on the defendant, had great influence with the Chancellor. On principle, and authority, the complainants should have recovered the whole of the interest, or no part of it; and Nott, J., in delivering the opinion of the Court of Appeals, said, “I should have been better satisfied, in this case, if interest had been allowed only from the time of the demand. But as the Chancellor had all the testimony before him, perhaps he had a better opportunity of judging of the matter.” 2 M’C. Ch. 322. it is, therefore, a case standing on its own circumstances, and cannot be regarded as a precedent. *
   Per Curiam.

We are satisfied with the decree of the Chancel, lor ; and the motion is therefore dismissed.

Decree affirmed.  