
    Thomas H. S. Thayer, Administrator of Ebenezer Thayer, v. Elizabeth Davidson.
    A purchaser of personal property holds adversely to a prior mortgagee, at least from the time of the condition broken; and he will be protected by the statute of limitations, although he have notice of the mortgage. The rule in this respect differs in relation to real, and personal property, from the difference in the effect, of a mortgage of the one species of property, and the other, upon the legal estate of the mortgagor, vide Thayer v. Cramer, 1 M’C. Ch. 395.
    Recording is notice of a mortgage of personal, as well as of real property, in all cases where the mortgage is required by law to be recorded ; but such notice only defeats the plea of purchase for valuable consideration without notice, and will not, in the case of personal property, deprive a purchaser of the benefit of the statute of limitations.
    The operation of the statute of limitations in the case of a purchaser, with, or without notice, from a trustee, or mortgagor, as against the cestuy que trust, or mortgagee, and the effect of recording as notice, in reference to real, orpersonal property, examined, and discussed; and the case of Thayer v. Cramer, 1 M’C. Ch. 395, questioned ; by Harper, Ch. sed vide Smith and Cuttino v. Osborne, 1 Hill’s Ch. 340.
    This was a bill to injoin proceedings at law, and to be relieved against a replevin bond ; and the defendant having answered, the cause was heard at Charleston, in February, 1829, by Harper, Chancellor, from whose decree the case will be sufficiently understood .
    Harper, Ch. On the 17th January, 1818, James Lynah executed his bond to the commissioner in equity, with condition for the payment of $13,000, in three equal annual instalments, the first of them to be paid on the 1st January, 1819 ; and to secure the payment of this bond, he at the same time mortgaged several slaves, including one named Boston, who is in question in this suit. The bond is credited with $3,000, on the day of its execution, and is also credited with several payments of interest; but no more of the principal seems to have been paid. The mortgage was duly recorded in the office of the Secretary of State a few days after its execution ; and the bond and mortgage were assigned by the commissioner in equity to the defendant, Mrs. Davidson, for whose benefit they were taken.
    On the 10th December, 1818, James Lynah sold the slave Boston to one John Keller, and executed a bill of sale, which does not appear to have been recorded. In March, 1820, Keller sold Boston to Mrs. Mary Cassin, but no bill of sale appears to have been executed ; and on the 20th Aprd, in the same year, Mrs. Cassin executed a bill of sale to Ebenezer Thayer, the complainant’s intestate. Mr. Page, a witness examined at the hearing, testified, that he was the agent of Mrs. Cassin, in making sale of the slave to Mr. Thayer, that he knew nothing of the mortgage, nor did Thayer, so far as he knows. Mr. Thayer, or the complainant, as his administrator, remained in possession of Boston until the 31st July, 1824, when he was seized by the sheriff, as the agent of the defendant, Mrs. Davidson, for the purpose of satisfying her mortgage. The complainant, conceiving himself to have a good title to Boston, commenced an action of replevin against the defendant, and the slave was restored to his possession, on his entering into the usual replevin bond. On the action coming on to be tried, a demurrer was sustained, on the ground, as it is alleged, that the action of replevin will not lie, except for a distress for rent in arrear. During the pendency of the action, the slave, Boston, died in the complainant’s possession; by which accident, he alleges, he was prevented from restoring Boston, conformably to the condition of the replevin bond. The bill states, that the defendant is about to proceed, at law, on this bond, and prays relief against it, and that the defendant may be perpetually injoined.
    Several questions arise under the pleadings; but the principal point made in the case, and indeed the otdy one debated at the hearing, was, whether the complainant, in right of his intestate, had acquired a good title by the statute of limitations : and this depends upon the question, whether the purchaser of a slave, who is under mortgage, the mortgage being duly recorded, can acquire a title by the statute against the mortgagee. The case of Thayer v. Cramer, 1 M’C. Ch. 395, was relied on by the defendant’s counsel; it having been held, in that case, that the purchaser from a mortgagor, with notice, was not protected by the statute of limitations, and that recording was notice. But that was a case of real property, and does not, I think, conclude one involving personal estate. The law on this subject, however, is of much interest to the community, and I shall consider the whole subject, in relation both to real, and to personal property. And first, as to real estate.
    In general, it is enough for me, that the Court of Appeals has decided a question, whatever my own opinion may be on the point decided. Its decisions are the law of this Court; and in addition to that official respect, which I am bound to pay to them, I yield the utmost personal respect to the discrimination, and research, w^ieh l^ey generally exhibit. Several circumstances, however, make me hesitate with respect to the case in question.
    In the first place, the determination seems inconsistent with the v‘ews ta^en by the same Court, a short time before, in the case of Hampton v. Levy, 1 M’C. Ch. 107 ; and is hardly reconcileable with the principle repeatedly recognized by the Court, that the rule, that the statute of limitations does not apply, as between trustee and cestuy que trust, applies only to actual, technical trusts, and not to such as are-raised by construction of law. Executors of Fisher v. Executors of Tucker, 1 M’C. Ch. 169. Van Rhyn v. Vincent, lb. 310.
    Registration’s being notice, does not seem to have been the disputed point in the case. The argument'turned on the question, of a purchaser with notice being held a trustee ; and the point of re. cording being notice seems rather to have been conceded by the counsel, than considered by the Court.
    It is said in the case, generally, that the statute will not run in favor of a purchaser from a trustee, or mortgagor, with notice ; but no qualification is made with respect to the particular case, where the cestuy que trust, or mortgagee, has knowledge of such conveyance, and being under no disability, takes no legal steps, for a period of time, long enough for the statute to run, the purchaser in the mean time holding adversely, that is, claiming the entire property in his own right: a qualification which seems clear on authority, and principle, and important in practice.
    It seems to me, that the doctrine contended for, if unqualifiedly admitted, would, in many cases, operate injurious consequences to individuals, approaching the effect of fraud, and would lead to uncertainty, and incongruity, in the law relating to possession. Under these circumstances, and iti order that the subject may be again brought under the consideration of the Court of Appeals, I venture to submit my own views of the doctrine. If I assume too much in doing so, it is entirely in the power of that Court to correct the error.
    Apart from the authority of Thayer v: Cramer, my opinion would be : First, that in favor of a bona fide purchaser from a trustee, or mortgagor, without notice, the statute will run from the time of the conveyance; provided the cestuy que trust be under no disability, and the debt be due, or the mortgage forfeited: and provided the purchaser continue to hold adversely, from the time of the con. veyance. Second, that in the case of a purchaser, with notice, the statute will run from the time when the mortgagee, or cestuy que 
      
      trust, has knowledge of the conveyance; provided, as before, that the mortgage be forfeited, and the cestuy que trust under no disability, and the purchaser continues to hold adversely. Third, that where a sufficient time has elapsed for the statute to run, and the complainant charges a purchaser with notice, he must charge by his bill, that he came to the knowledge of the conveyance, within the statutory time, before the filing of his bill. Fourth, that although recording may be notice for some purposes, it is not so for the purpose of preventing the operation of time, or the statute of limitations.
    I do not know that there has been any difference of opinion as to the case of a purchaser without notice. In general, however, such a purchaser is not put to rely on the statute. He may plead that he is a bona fide purchaser, for valuable consideration, without notice. He has acquired the legal title, and equity will not interfere against him. Of this plea, it would seem, that, in this country, when he acquires the legal title by a conveyance from the mortgagor, he may avail himself, even if he took his conveyance before the mortgage was forfeited ; but there is certainly much more reason for permitting him tO'avail himself of the statute of limitations. That he should have purchased without notice, and retained possession, apart from our registry act, implies no laches in the cestuy que trust, or mortgagee ; but that he should have retained possession,long enough for the statute to run, without any proceeding on their part to vindicate their rights, infers gross, and unaccountable laches. To be sure, there must be no disability on their part. If the cestuy que trust be an infant, or the debt not due, or the mortgage not forfeited, time will not run. The rule is universal, that if it be not in the party’s power to vindicate his rights, by proceeding at law, the law will not permit him to lose them. If there be a contract to be discharged in futuro, time will not run until the contract be forfeited. Tenant for life, or for term of years, can acquire no rights by length of possession, during the continuance of-their terms, although they may extend to fifty years. And the possession must be adverse. To be adverse, the possession must be in a right, inconsistent with the right of the party, afterwards claiming. If the party in possession claims the unqualified property, in his own right, that is adverse to all the world. But if a purchaser, without notice, on being informed of the mortgage, should admit the mortgagee’s right, and consent to hold subject to it, the possession would be no longer adverse. He would then stand, to all intents, in the place of the original mortgagor, and hold by a title consist» ent m't]) t[le right of the mortgagee. He would be in the situation of one, who had purchased the mortgagor’s right, or, as we inaccurately term it, the equity of redemption ; which would be a case exP‘ess But on this part of the subject, I am not aware, that there can be any difference of opinion.
    If it is inferred from the case of Thayer v. Cramer, that in no case can the statute of limitations run in favor of a purchaser with notice, 1- do not see how that can be reconciled with what is said by the Court of Appeals, in the cases before referred to, that the rule, that the statute of limitations will not run, as between trustee and cesluy que trust, applies only to actual, technical trusts, and not to such as are raised by construction of law. That a purchaser, with notice, is only a trustee by construction of law, I suppose will not admit of question. There is no actual, direct trust, created by his conveyance : no trust is committed to him, nor does be under, take the performance of one. He is made, constructively, a trustee, on the ground of his fraudulent intention to destroy the trust. A purchaser without notice has never been held a trustee at all, either constructively, or otherwise. He stands in the situation of any individual, gaining possession of property, under a claim of right, to which another has an equitable title. It can hardly be necessary to quote authority in support of the doctrine recognized by the Court of Appeals. It is, however, supported by ample authority; and has never been doubted, or denied, so far as I can discover. I refer more particularly to Lockey v. Lockey, Pr. Ch. 518, Townshend v. Townshend, 4 Bro. C. C. 550, Beckford v. Wade, 17 Yes. 98, and Bonney v. Ridgard, cited very fully by the Master of Rolls in the last case. From these cases we infer, that, in general, time will bar in cases of constructive trust, in analogy to the statute of limitations. Why then does it not operate in favour of a purchaser with notice, not strictly on the ground of trust, but of fraud ? Time does not operate in favor of an actual trustee, because his possession is not adverse : he holds in the right of his cestuy que trust, and subject to his title ; and it was intended, in the creation of the trust, that he should hold possession. There is nothing to put the cestuy que trust upon the assertion of his right. Not so with respect to a constructive trustee, who claims in his own right. The case of Bonney v. Ridgard, (supra,) was one of a sale by an executrix to a purchaser, with notice, in fraud of her children ; and Lord Kenyon said, that it was a gross and flagrant fraud, a mere trick to play the estate into the hands of a purchaser, who had full notice, in payment of a debt due to him by the husband of the executrix : and if the children had sued, when they came of age, they might have been relieved ; but they had not done so, and were barred by time, in analogy to the statute. It may be observed, that in this case nothing is said about discovery by the cestuy que trust, but 1 suppose it was taken for granted, that they knew the circumstances. On this footing it is placed by Lord Redesdale in the case of Hovenden v. Lord Annesley, 2 Sch. & Lefr. 633. After adverting to the position, which had been taken, “ that trust and fraud are not within the statute,” he adds, “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 is according to his title : just as in the case of a lessee for years, though he does not pay his rent for fifty years, his possession is no bar to an ejectment after the expiration of this term, because his possession is according to the right of the party, against whom he seeks to set it up. But the question of fraud is of a very different description : that is a case where a person, who is in possession by virtue of that fraud, is not, in the ordinary sense of the word, a trustee, but is to be constituted a trustee by a decree of the Court of Equity, founded on his fraud; and his possession in the mean time is adverse to the title of the person, who impeaches the transaction on the ground of fraud.” In general there is no doubt about the rule, that the statute will run from the time that, a fraud is discovered ; and there would seem to be an incongruity, in making an exception with respect to this particular species of fraud. Such a construction seems to me contradictory to the spirit and policy of the statute. If, by any other sort of wrong, an individual obtains possession of the property of another, the statute runs from the time of his possession, even though the owner may be ignorant of tho wrong thus done : the law imposes on persons the responsibility of looking after their property, and knowing what has become of it. An exception is made in the case of fraud, because fraud implies that the party' is not aware of the injury done him ; and in most cases, there is nothing to put him on his guard, and he has no present means of detection : but when it is actually discovered, the reason of the exception ceases.
    If we suppose both parties to have notice, the purchaser, of the incumbrance, and the mortgagee, of the sale, it may be said, that the purchaser suffers no hardship : he had fair warning, that he was liable to be deprived of the property at any time ; and it was ^'S folly t0 purchase under such circumstances. But this was the very case in which the statute was intended to apply : I speak, of course, of a case where the purchaser continues to hold adversely, cla^tr>lnS the entire property in his own right. It supposes, that the right of individuals may be wrongfully usurped, and fixes a period, within which they shall be vindicated, by proceeding at law, under pain of losing them. If the parties are in pari delicto the statute prevails, for the peace of the country : so it is, if the parties be equally innocent, if neither have notice; only in the case of fraud, against which ordinary prudence cannot guard, and which may be practised without chance of detection, the Courts, by an equitable construction, fix the time of discovery as that from which the statute shall run.
    Lapse of time will raise the presumption of satisfaction of a mortgage, unless the mortgagee pays interest, or does some other act, or makes some admission, recognising its validity. The same lapse of time, I suppose, would quiet the title of a purchaser with notice. But will the acts or admissions of the mortgagor bind the purchaser, and make the property liable in his hands, at any distance of time 1 It would seem to follow; and yet there appears to be a legal incongruity, in permitting the admissions of one person to bind another, whose rights are certainly adverse to him.
    If a case should occur of a purchaser from a trustee, with notice, and yet there should be no fraud in the transaction, (a conceivable case, as where the property was claimed under a defective title, and the trustee mistakenly, but Iona fide, gave it up,) I suppose that the statute would run from the time of the conveyance, whether the cestuy que trust had discovered it or not. I infer this, because a case oí fraud is the only exception, which the authorities make to the statute’s running, from the time when an adverse possession is taken, if there is no disability. If, without the trustee’s concurrence, One obtained possession of trust property by a trespass, there can be no doubt, but that the statute would run against the trustee, and the cestuy que trust would be bound. I can perceive no ground, in principle, to make an exception in a case, where'the trustee honestly, and without collusion, or the intention to prejudice the right of his cestuy que trust, acquiesced, and transferred the possession. Actual trust it is not, for the party did not receive the property on any expressed trust: nor is it a constructive trust, for the party is made a trustee by construction, only on the score of his fraud; and besides, there is no rule that the statute will not run in cases of constructive trust. Fraud is excluded by the terms of the proposition. On what ground of law then, can the operation of the statute be suspended ?
    Such certainly seems to have been the opinion of the Lord Commissioner, Ashurst in the case of Townshend «. Townshend, 1 Bro. C. C. 551. In that case, a term was assigned by the trustee to a purchaser for valuable consideration, who had notice. The purchaser held possession long enough for the statute to run. Against the effect of the statute, it was argued., that the transaction was a fraud, the parties having notice; and therefore the statute would not run. The Lord Commissioner would not infer fraud, as the mother, to whom the term had been limited for life, with remainder to her children, joined in the transaction. “ It is said by the plaintiff, that the defendants took the term as a trust, with notice; but it is unnatural to infer fraud in this case, for the mother must be presumed to defeat the provision for her own children. In this view, one would rather infer, that the parties knew that the settlement was voluntary, or that some compensation was made to the children of the second marriage. Then as to trusts being an exception to the .statute of limitations : the rule holds only between trustees and cestuys que trust. It is true that a trustee cannot set it up against his cestuys que trust: but this is merely the case of a trustee by implication, and as such affected by an equity ; but that equity must be pursued within some reasonable time. Both Courts of Law and Equity preserve an analogy to the statute of limitations.” 1 Bro. C. C. 554.
    Stress has been sometimes laid on a dictum of Lord Hardwicke in the case of Boteter v. Allington, 3 Atk. 459, that a person who has taken conveyance from a trustee, cannot shelter himself under a plea of the statute of limitations. This is probably not accurately reported ; and at all events, it must be taken with the qualification, that the person had notice: and it will admit the further qualification, that the cestuy que trust had not discovered the transaction. In the same case, however, Lord Hardwicke decides, that one who had taken a presentation to a church living, from a trustee with notice, was protected by a statute of limitation ; on the ground that there was no fraud. It is true, that there are expressions in the case which might lead us to infer, that the case of a church living was a peculiar one ; and that the statute was more strictly construed in favor of the peace of the church. But he manifestly decides, on general principles, applicable in all cases, that if there had been fraud, the statute would not have availed the presentee; and there being no fraud, notice was immaterial. “ A man might know that Marmaduke Alliugton was a trustee, without knowing that he was guilty of fraud, or a breach of trust, for Henry might conceive that Marmaduke had a right to present in the capacity of a trustee, an(^ t^ere^ore noti°e is of no consequence.” 3 Atk. 459.
    In the case of Wamburzee v. Kennedy, 4 Desaus. 479, the decision was, that the purchaser’s fraud raises an implied trust, and that the statute does not begin to run until the fraud is discovered.
    I am not aware that any difference of opinion exists, as to the rule, in general, that in cases of fraud the statute will run from the time of discovery ; and I cannot conceive, what should make the difference in a case of fraudulent breach of trust. There is as little doubt, so far as I know, with respect to the rule, that in such cases, where there has been time enough for the statute to run, the plaintiff must allege that he has discovered the fraud within the statutory period before filing his bill. South Sea Company v. Wymendsell, 3 P. Wms. 143. Though this be not, in its nature, strictly susceptible-of proof, the allegation is material to put the defendant upon proof, that the fact was known. It would seem still more material, that where the party, claiming against the effect of the statute, stands in the situation of defendant,' he should deny having knowledge. This has not’ been done in- the present case. If therefore it were even established, that the complainant’s intestate did purchase, with notice, I should doubt, whether I ought not to conclude, that the defendant had knowledge of the transaction, and that the statute would run. I should have no doubt, if such knowledge were charged by the bill, and uot denied. I rest my opinion on the other ground, however, that the complainant is not affected with notice. ■
    
      As to the point of recording being notice, I do not deem it necessary to decide, that’, to some purposes, recording may not be notice ; although on authority, independent of the case of Thayer v. Cramer, there might be some difficulty’in -making that out. • All the English cases, I believe, are the Other way/ In MoreCock v. Dick-ins, Ambl. 678, the question arose,-whether, under the English statute, 7 Ann, c. 20, which requires mortgages, and every writing in nature of a mortgage, to be recorded, the due registration of an equitable mortgage was sufficient notice to give it- priority over a subsequent legal mortgage ; and it was decided not to be notice for that purpose. That case was decided on the authority of the case of Bedford v. Bacchus, there cited, in which Lord King decided, that where a first mortgagee, having duly registered his mortgage, advanced a further sum of money on it,- after a second mortgage duly registered, he was not affected with notice. To the feet was the case of Wrightson v. Hudson, 2 Eq. Ca. Abr. 609. The first mortgagee, whose mortgage was duly registered, advanced more money on his mortgage ; and it was contended, that the registering of Hudson’s mortgage was constructive notice to Wright-son. But it was resolved, that the statutes affect prior charges not registered, but do not give subsequent conveyances any further effect against prior ones registered, than they had before ; and that Hudson should have given notice : and that although Wrightson might have searched the registry, he was not bound to do so. The subject was fully considered, and the cases reviewed by Lord Redesdale in the case of Bushell v. Bushell, 1 Sell. & Lefr. 90; and he comes to the conclusion, that registration is not notice. Chancellor Kent, in the case of Parkist v. Alexander, speaks of this opinion of Lord Redesdale as extra-judicial, 1 Johns. C. R. 400 : but Lord Redesdale, himself, did not so regard it, for he says, he wishes the case to turn on that point. The case was, that husband and wife had a power of appointing, by deed, among their children. The husband, by will, devised the estate in question to his eldest son ; and after the husband’s death, the wife mode an indorsement on his will, by which she ratified and confirmed the ap. pointment thereby made. This will, with the wife’s confirmation, were registered as an execution of the power of appointment. The son entered on the estate, and afterwards conveyed it, (by marriage settlement,) for valuable consideration. Two questions arose: first, whether this was a due execution of the power of appointment ; and second, if it was, whether the registration was sufficient notice, to disable the purchasers, under the son’s marriage settlement, from pleading that they were bona fide purchasers for valuable consideration, without notice. Lord Redesdale expresses an opinion, that it was not a due execution of the power, but examines more particularly the latter point. same ef-
    In opposition to these authorities is the opinion of Mr. Sugden,in his Treatise on Vendors, page 508. He takes exception to the case of Morecock v. Dickins, and the opinion of Lord Redesdale in Bushell v. Bushell. He approves, however of Bedford v. Bacchus, and Wrightson v. Hudson. Mr. Cruise, in his digest of the laws of real property, concurs in the views of Mr. Sugden. 4 Cruise Dig. 544. To these are to be added the high authority of Chancellor Kent in Parkist v. Alexander, 1 Johns. C. R. 394. See also Johnson v. Stagg, 2 Johns. 510. Now I am not at all disposed to dispute the correctness of Chancellor Kent’s conclusion : ^Ut W^at *s ^’S decision ; and how far do the opinions of Sugden, and Cruise go 1 To this extent, that, under an equitable construction of the statute, the registration of an equitable incumbrance is so ^ar n°d°e> lhat it ought to prevent a subsequent purchaser from pleading, that he is a bona fide purchaser, without notice. No question is suggested as to its effect in preventing the operation of the statute of limitations ; nor is there, so far as I know, any authority, in which such a doctrine is hinted at.. It was, I suspect, on the authority of the New York cases, that the point, of recording being notice, was virtually conceded in the case of Thayer v. Cramer. If recording be notice, it was taken for granted, that it must be so to every purpose; and thus the point failed to come under the consideration of the Court of Appeals.
    But Chancellor Kent agrees with Mr. Sugden, and with Mr. Cruise, that registration is not notice for every purpose. They concur, that the registration of a second mortgage is not such notice to a first mortgagee, whose mortgage was duly registered, as to postpone him, if he advances more money on his mortgage. They hold, that the second mortgagee is bound to give notice to the first; and yet it might be said, that it is the folly, or laches, of the first mortgagee to make further advances, without searching the registry for subsequent incumbrances.
    As observed in several of the cases referred to, the statutes declare, that conveyances not recorded shall be void, or postponed ; but they give no further effect, to those which shall be recorded, than they would have had before the statutes. To authorize me to give such construction, I should require authority, on some strong ground of equity. There is a manifest distinction, however, between holding the fact of recording to be notice, as an answer to the plea of purchase, without notice, and to the plea of the statute of limitations. When the Court sustains the plea of a bona fide purchase, without notice, it is on the ground, that the parties have equal equity ; and, therefore, it will not interfere at all, but leave them to their remedies at law. But when the prior equitable incumbrance has been duly registered, equities are no longer equal. The equitable incumbrancer has done all in his power, and no laches can be imputed to him. Not so, with respect to the subsequent purchaser. If he failed to search the registry he was guilty of laches : if he did search, and obtain actual notice, he was guilty of fraud. The Court, therefore, relieves the equitable incumbrancer, to whom nothing of this can be imputed. But the case is very different, when it comes to the plea of the statute of limitations. The party seeking relief against the plea must, in general, have been guilty of gross laches. He must have slept upon his rights, for a period long enough for the statute to run, after his cause of action, or his title accrued ; for until then, the statute would not begin to run. This seems to me much greater laches, than a neglect to search the registry. But if equities are equal, the Court ought to support the plea. Possession is favored; and the statute was made for the peace of the country. If there was negligence in the purchaser’s relying on the representations of the vendor, that the property was unincumbered, it seems to me, that we must infer much greater negligence in a mortgagee, who leaves the property, on which his security depends, in the possession of his debtor, for so long a time, without taking means to ascertain what has become of it.
    It is observed in some of the cases, that a purchaser may have searched the registry, and obtained actual notice, which it will be difficult, or impossible to prove : that fraud may be thus practised without the chance of detection ; and that there will be great temp, tation to commit perjury, in order to conceal it. But the same sort of argument may be used on the other side. The mortgagee may know that his mortgagor has sold the property ; and, perhaps, it is quite as fair to presume, that he does know, what disposition has been made of property, in which he is so much interested. The possession of real property, or of slaves, must be matter of notoriety. It may be equally difficult to prove this. He may acquiesce, until his debtor has become insolvent, and then deprive the purchaser of property, for which he has honestly paid. There is as much temptation, and facility, for the trustee, and the cestuy que trust, to combine, for the purpose of defrauding a Stranger, as for the trustee, and a stranger, to defraud the cestuy que trust. Suppose the case to be, that-a purchaser has been guilty of-the laches of failing to search the registry, and that, in fact, he has not notice; that the mortgagee, however, does know of the conveyance, but relying on the sufficiency of the mortgagor, is silent, and makes no claim, for a period long enough for the statute to run ; that the mortgagor, in the mean time, has become insolvent; and that the mortgagee then comes on the mortgaged property, when the purchaser’s recourse to his vendor has become unavailable. This, it seems to me, would not fall short of actual fraud. Certainly, it would be a case of extreme hardship; and, for any thing that appears, such may be the present case. And let it be remembered, that the cestuy que trust, or mortgagee, can suffer nothing, unless the trustee, or mortgagor, ]ias become insolvent ; for in favor of the actual trustee, or mort- , ... ... „ gagor, the statute will not run ; unless, m the case ot a mortgage, the mortgage is barred by lapse of time.
    If we make it a presumption of fact, that a party purchasing has searched the registry, the presumption will often be unfounded. 1 believe, that in a great majority of cases it is not done. In the present case, we have satisfactory proof, that the purchaser did not have any notice. A great proportion of purchasers in this country are ignorant and even illiterate; and do not know how to direct this search. Besides, as observed by Lord Redesdale, in Bushel! v, Bushell, 1 Sch. & Lefr. 103, if registration of a deed be notice, it must be notice of every thing it contains. But a disposition of property may often be made in a deed, or settlement, relating to other matters, where no one would think of looking for it. It seems to me, that the consideration paid is a most material fact, in determining the question of notice. If the compensation were very inadequate, I think it would raise a fair presumption of notice. If the consideration be a full one, it goes as far to repel it. Indeed, it is not credible, that a man should pay a full consideration for a title, which he knew to be doubtful, or incumbered. In the present case, the consideration seems, so far as I can judge, to have been a full one.
    So far I have considered the doctrine as applied to real property. With respect to chattels, I think there can be no doubt; and to these the case of Thayer v. Cramer does not apply. In the first place, sales of these are not required to be evidenced by writing, and frequently there is no bill of sale. If there be a bill of sale, it is not required to be, nor is it commonly, recorded. A person about to purchase a slave does not think of examining the registry offices, for the purpose of finding former transfers of the same property. The provisions of the act of 1698, P. L. 3, as respects personal property, were intended to relate more particularly to mortgages. See act of 1785, P. L. 382. If upon the sale of a slave, he should be left in the vendor’s possession, this would be evidence of fraud ; would constitute fraud of itself, as some of the cases say ; and the sale would be void as against creditors or a subsequent purchaser : and I should very much doubt, whether the vendee’s duly recording his bill of sale would cure the vice of the transaction ; unless such possession were consistent with the contract, or under special circumstances. Some of the English cases seem to regard the leaving personal property mortgaged in the hands of the mortgagor, after the mortgage forfeited, as making a similar fíase of fraud. But is the party, who has been guilty of this neglect, which has been thought to amount to fraud, to be so carefully protected, that not only shall he prevail against a bona fide purchaser, whose only laches has been, that he did not search for information, where he had no reason for expecting to find it, but that time, itself, shall not be permitted to mature a title against hipi ? With respect to personal property, there is no ground for the ¡iresumption of fact, that the party has searched the registry, and ob. tained notice ; and it can hardly be called laches, that he has failed to search. In this case, (and so it will be in many of the cases that are likely to occur,) it was not practicable, for the party to ob. tain notice by searching the registry. The slave had passed through several hands, after the sale by the mortgagor; and one of the in. termediate transfers was not in writing, and only some of them re. corded : so that there is no reason for supposing, that the complain, ant’s intestate knew, or had the means of knowing, through what hands the slave had passed. He had, in fact, no clue, by which to direct a search.
    .There seemed to be an impression in the argument of the case, that even if the complainant’s intestate could be construed not to have had notice, and his possession to have been adverse, the statute could not begin to run until the last instalment of the bond be. came due, which the slave was mortgaged to secure. I know of no rule or principle, which would authorize me to take this view of the law of the case. In all other instances of adverse possession, the statute begins to run from the time, when the title, or cause of action accrued. In this case, the first default in the payment of James Lynah’s bond was made on the first of January, 1819. The defendant’s cause of action arose on the bond at that time, and she might have seized the slaves. The complainant’s intes. tate obtained possession on the 20th April, 1820 ; and his posses, sion continued until August 1824. I must conclude, that his title was matured by the statute of limitations.
    It is ordered, and decreed, that the defendant be perpetually in. joined from suing on the replevin bond mentioned in the proceed, ings.
    From this decree the defendant appealed, and now moved that the same might be reversed.
    Kino, for the motion.
    Petigrü, contra.
    
   O’Neall, J.,

delivered the opinion of the Court.

In this case we are of opinion, that the Chancellor’s decree should bé affirmed. It is unnecessary, however, that an opinio» should be given upon all the points which he has considered.

Thfeite is certainly a wide distinction between mortgages of real and personal property. In the former, the legal estate remains in the mortgagor ; in the latter it is in the mortgagee. This distinction is, obviously, the basis of the decisions, in Thayer v. Cramer, 1 M’C. Ch. 395, and Nixon v. Bynum, 1 Bailey, 148. In the last of these cases, it is said, that recording is notice ; and that the purchaser cannot avail himself of the statute of limitations. This I am not disposed to question in relation to land. But I should be unwilling to say, that the mortgagor, or a purchaser from him,, with constructive notice, became, a trustee. The legal estate being in the morgagor, the mortgage is a lien, not inconsistent with' the legal estate, or possession of the mortgagor, or the purchaser from him ; and hence there can be no adverse possession, so as to create a possessory title. On á bill to foreclose, the purchaser could not be protected by the plea of purchase for valuable consideration without notice, if the mortgage were recorded ; for recording, when required by, and done according to, the provisions of the law, stands in the place of notice. It is constructive nptice to all the world °r but the effect of it is nothing more, than to deprive the party of the defence of being a purchaser for valuable consideration, without notice, and thus prevent the complainant’s equity from being defeated.

In the case of a mortgage of personal chattels, the legal estate is in the mortgagee, if not from the execution of the mortgage, at least from the time of the condition broken. The legal estate being in the mortgagee, the mortgagor has no legal estate which he can cónvey. If he sells, the purchaser acquires a title hostile to that of the mortgagee, and his possession is inconsistent With the rights of the mortgagee. The mortgagee has no equitable rights : his is a plain legal estate ; and his remedy is equally plain and legal, by seizure and sale of the property, or by an action of trover, or detinue. Against each of these remedies, the statute will run, whether the purchaser had notice, or not; and the question is, whether the circumstance, that the case is to be decided in the Court of Equity, can alter the law applicable to it. I apprehend that it cannot. Two inquiries would seem to be sufficient at all times to solve the question, whether the statute of limitations is a bar : first, is the case founded on a legal right, or a mere equity 1 Second, if on a legal right, when did the cause of action accrue 1 Answers to these questions will always enable us at onee to say, whether the statute is, or is not, a good defence. If the case is founded on a legal right, such an one as can generally be enforced at law, although the party is compelled by some circumstance to come into equity for relief, then the rule is the same in equity, as at law, and the statute will run from the accrual of the cause of action. But if the case is founded on an equity merely, the statute has no application to it; and it is only in analogy to it, that lapse of time is allowed as a bar. These distinctions are, I think, just and subStantial; and I am not disposed to adopt others, which would convert all legal causes of action into trusts, and thus judicially repeal the statute.

In the case before us, the defendant had a legal estate in the slave ; and her cause of action, at all events, accrued to her on the failure of Lynah to pay the first instalment. .This point was decided in the Court of Appeals, at Columbia, in May, 1830, in the case of Johnson v. Vernon. The first instalment became due before the complainant’s intestate purchased, and he and his administrator were in possession more than four years before the seizure and sale of the slave under the mortgage, This was a legal bar to the remedy.

It is, perhaps, necessary to remark, that, in cases of personal property, where the law requires mortgages, or other transfers of it to be recorded, a compliance with the law is constructive notice, for all the purposes which have been already stated, and noticed, in cases of real property. This I regard as settled by the very able opinion of Mr. Justice Nott, in the case of Swann v. Ligan and Rudd, decided in the Court of Appeals, at Columbia, in the Spring Session of 1828.

The decree of the Chancellor is affirmed.

Johnson, J., concurred.

Decree affirmed.  