
    *Morris’ Ex’or v. Duke’s Adm’r et als.
    January Term, 1857,
    Richmond.
    Absent, Nash, J., and Clopton, J. — Clopton, J., decided the cause in the court below.
    1. Administrators — Assignment of Choses in Action— Devastavit — Constructive Trust. — Quiere : Whether an assignment by an administrator to his individual creditor of choses in action belonging to the estate of his intestate, in consideration of which the creditor assigned to the sureties of the administrator a bond of the administrator for the same amount, amply secured, on real and personal estate, is a devastavit by the administrator: or, whether it is such a dealing with the assets of the estate by the creditor of the administrator as to render him liable as a constructive trustee to those entitled to the estate for the amount of the assets so received by him?
    2. Same — Same—Constructive Trust — Equitable Enforcement after Lapse of Twenty Years. — At most, such dealing with the assets, there being no actual fraud, raises an implied or constructive trust on the part of the creditor which a court of equity will not enforce after the lapse of twenty years from the time the transaction became known, or might by the exercise of proper diligence, have become known, to the cestuis que trust.
    3. Same — Same—Same—Liability of Trustee. — In such case, the party so receiving the assets of the estate is not merely collaterally liable on the failure of the administrator to account for the assets of the estate, but is directly and principally liable to those entitled to the estate from the time the assets were received by him.
    4. Same — Same—Same—Laches.—And the pendency of a suit by those entitled to the estate against the administrator and his sureties, to which such person is no party, is no excuse for their laches in prosecuting their claim against him.
    This case is now in the-Court of Appeals for the third time. On the first appeal, it is reported under the name Burnley’s adm’r v. Duke et als., 1 Rand. 108; and on the second, under the name of Burnley’s representatives v. Duke et als., 2 Rob. 102. Only such of the proceedings in the cause will be here reported as are deemed necessary to present the questions decided on this appeal.
    ^Sometime prior to the year 1793, John Burnlej’ died, leaving' a will, by which he bequeathed legacies to his three sisters and their children. Zachariah Burnley first qualified as administrator on the estate, and as such received a sufficient amount of property of the testator to pay debts and legacies. In May, 1793, the above mentioned legatees instituted a suit in the High Court of Chancery at Richmond, against Zachariah Burnley, administrator as aforesaid, to recover their legacies. At the death of Zachariah Burnley, Hardin Burnley qualified as his administrator, and the suit was revived against him as such. At the death of Hardin Burnley, the suit abated as to him, and was revived against Alexander Shepherd, who qualified as the administrator de bonis non of Zachariah Burnley. On the 2d May, 1818, the Court of Chancery at Rrederickburg, to which the cause had been removed, decreed against Alexander Shepherd, administrator de bonis non of Zachariah Burnley, that he should pay the legatees, plaintiffs, the amount of their legacies. From this decree, Alexander Shepherd appealed to the Court of Appeals. While the appeal was pending, Alexander Shepherd died, and the case was revived in that court against William D. Taylor, administrator de bonis non of Zachariah Burnley. And while the appeal was still pending, William D. Taylor, administrator de bonis non as aforesaid, recovered by suit from William Shepherd, who was the administrator of Alexander Shepherd, and Henry Pendleton, administrator de bonis non of Hardin Burnley, considerable sums, as assets of the estate of Zachariah Burnley.
    The Court of Appeals affirmed the decree of the Court of Chancery at Fredericks-burg, and its decree was entered in that court on the 19th September, 1822.
    The legatees then filed an amended and supplemental bill, making James Madison and John Darracott, the sureties of William D. Tajdor, in his official bond as administrator de bonis non of Zachariah Burnley, and the representatives of Alexander Shepherd and Hardin *Burnley, parties defendant. The representatives of Alexander Shepherd and Hardin Burnley relied on their payments, under decrees of courts of competent jurisdiction, to William D. Taylor, administrator de bonis non of Zachariah Burnley, to exonerate them from any further payment. The litigation was much protracted by the great number of parties plaintiff, and the frequented deaths, rendering new qualifications and revivals necessary.
    In May, 1843, the case having been again heard in the Court of Appeals, that court decreed, that the bill should be dismissed as to the representatives of Alexander Shepherd and Hardin Burnley, and that a decree should have been rendered against William D. Taylor and the sureties in his administration bond, for the amount of assets received by Taylor of Alexander Shepherd’s representative and Hardin Burnley’s representative, together with any other assets of Zachariah Burn-ley, which came to the .hands of Taylor; and that leave should have been given the legatees and their representatives to amend their bill, and make any other person or persons parties, who may have improperly received from the said Taylor the assets of Zachariah Burnley’s estate.
    This decree of the Court of Appeals was entered on the 24th October, 1843, in the Circuit Superior Court of Essex county, to which the cause had been removed. On the next da}T, the cause was revived in behalf of the representatives of some of the parties who had died; leave was given the complainants to file an amended bill, making new parties, and an order was entered, removing the cause to the Circuit Superior Court of Hanover county.
    The cause was continued in that court until the 17th April, 1846, when it was sent to Rules for further proceedings. On the 10th October, 1846, the legatees or their representatives filed their amended bill, against William D. Taylor, administrator de bonis non of Zachariah Burnle3r; the representatives of James Madison *and John Darracott, who were Taylor’s sureties; and William Overton and Jaquelin P. Taylor, executors of James M. Morris, deceased. The amended bill, after reciting the former proceedings in the cause, charged, that William D. Taylor had received a large amount of assets, belonging to the estate of Zachariah Burnley, from his former representatives, specifying the amounts and dates of payment; that William D. Taylor was insolvent, and that his sureties were responsible for the assets so received by him.
    It further contained the following aver-ments: “That one James Maury Morris, being a creditor of the said William D. Taylor, did, on the 21st day of February, 1822, receive from the said Taylor the sum of ^1,444 Is. lid., the same being assets belonging to the estate of the said Zachariah Burnley, and known to be so by the said Morris at the time he received the same, as will appear by reference to an assignment from the said Morris to John Darracott and James Madison, bearing date the 10th day of December, 1822, filed as an exhibit in this cause by the executors of Henry Pendleton, (who was the administrator de bonis non of Hardin Burnley,) on the 23d September, 1826, being a part of a record of the United States Circuit Court, in a suit of Darracott et al. v. United States et als., that the said Morris, by receiving the said sum of ^1,444 Is. lid. from the said Taylor, knowing at the time that the same belonged to the state of his intestate, Zachariah Burnley, became liable to them, the complainants, for the amount so received, upon any deficiency of the estate of the said Taylor to account for and pay the assets of the said Zachariah Burnley’s estate.’ ’
    William D. Taylor answered, .admitting that he had received several sums of money from the estates of the former representatives of Zachariah H. Burnley, and that on the 21st February he had received from Henry Pendleton administrator de bonis non of Hardin Burnley, who was administrator of Zachariah Burnley, the further sum of $4,813 65 in money and claims, which *the said Pendleton, as administrator of Hardin Burnley, held against him (Taylor) for purchases made by him from the estate of Hardin Burnley, and that on the same day he paid part of that sum to James M. Morris on account of a bond held by said Morris against him.
    Jaquelin P. Taylor, one of the executors of James Maury Morris, answered, averring:
    That he knew nothing of any transactions of his testator with the assets of the estate of Zachariah Burnley; that all he knew of the assignment upon which the complainants relied, was contained in the record of a suit in the United States Circuit Court for the Eastern District of Virginia, a transcript of which he exhibited with his answer. That it appeared from the said record, that William D. Taylor was indebted to his testator James M. -Morris in the sum of $4,404 48; that to secure this debt he had executed a deed of trust, dated 1st November, 1819, conveying certain real estate and twenty-six slaves; that on the 10th day of December, 1822, James M. Morris, by a writing under his hand and seal, assigned the benefit of this deed of trust to James Madison and John Darracott, the sureties of William D. Taylor, as administrator de bonis non, of Zachariah Burnley; that this assignment recited that William D. Taylor on the 21st Pebruarj' 1822, had paid to J. M. Morris in part of the debt secured by the deed of trust the sum of .£1,444 Is. lid., which was part of the assets of the estate of Zachariah Burnley, for which Madison and Darracott were responsible, as sureties; that the said sureties had paid Morris the sum of $1,682 05, the balance of his debt, and upon these considerations he had assigned them the benefit of his deed of trust; that this assignment was approved at the time and signed by William D. Taylor and his sureties James Madison and John Dar-racott. That, after the deed of trust to secure J. M. Morris, W. D. Taylor conveyed the same property to Anthony Thornton, a United ^States deputy marshal, in trust to secure certain taxes collected by Taylor and unaccounted for by him to the Government. That the property was sold by Thornton under the second deed, and Madison and Darracott had brought suit against Thornton and the United States for the same, and had obtained a decree against Thornton for the amount secured by the first deed and assigned to them by James M. Morris, but the decree had proved unavailing because of the insolvency of Thornton. The answer averred, that that record shewed that James M. Morris had given full equivalent for the assets of Zachariah Burnley received by him; that the transaction was in good faith, and that if the estate had sustained a loss, it was through the default and negligence of the sureties Madison and Darracott, in permitting the property assigned to them, which was ample, as the slaves alone sold for more than was received by Morris of the assets of Z. Burnley’s estate, to be sold under an inferior lien and to be wasted by the trustee.
    He further relied on the lapse of time as a complete bar, and insisted that at most his testator’s state was only secondarily liable, after that of the sureties had been exhausted, for the transaction was with their full sanction.
    The record of the suit of Madison and Darracott v. Thornton, the United States, et als. fully sustained the answer of Morris’ executor as to the facts stated therein; and it further appeared from a deposition taken in that cause, that the sum of .£1,444 Is. lid. paid by Taylor to Morris was not in money, but was a bond of Henry Pendleton for that amount, which Pendle-ton afterwards paid to Morris, as appeared by the credits endorsed thereon.
    John Darracott’s administrator also answered, denying the validity of Taylor’s administration bond, relying on the lapse of time, and denying that any assets of his intestate liad come to his hands. The amended bill was taken for confessed as to the other parties, and on *the 11th day of October, 1849, the Circuit Court of Hanover ordered accounts to be taken of Ta3-lor’s administration of the estate of Zachariah Burnley, of the several administrations on the estates of John Darracott and James Madison, and taking time to consider what decree it would pronounce as between the complainants and the executors of James Maurjr Morris, decreed that a commissioner should enquire and report the nature, character and present value of the lands and slaves conve3’-ed by the deed bearing date November 1st, 1819, executed by William D. Taylor and wife to Henry Robinson and Richard Morris, jr. trustees, for the benefit of James M. Morris, showing in his report in whose possession are the said land and slaves, and by what claim or title held.
    On the 12th day of April, 1850, the cause was again heard, when the decree of the court was in these words: “The court, being of opinion that it sufficiently appears from the evidence in the cause, that James M. Morris, the testator of the defendants Jaquelin P. Taylor and William Overton, did receive from the defendant William D. Taylor, adm’r de bonis non of Zachariah Burnley, dec’d, in payment of a private debt of the said William D. Taylor due to the said James M. Morris, a portion of the assets of the estate of the said Zachariah Burnley, dec’d, knowing at the time he so received the money, that it was assets of the said Burnley’s estate, and that the estate of the said James M. Morris, in the hands of his said executors, will be liable to the plaintiffs, upon a failuré on their part to realize payment from the said William D. Taylor, administrator as aforesaid, or from his sureties on his official bond, of the sum of which he may be properly chargeable to them as administrator as aforesaid; and being further of opinion, that the said defendants are not protected from the enforcement of such liability by the statute of limitations, doth adjudge, order and decree, that the defendants William Overton and Jaquelin *P. Taylor, executors of James M. Morris dec’d, do render before a commissioner of this court an account of the assets of Zachariah Burnley’s estate received by their testator from William D. Taylor, adm’r de bonis non of Zachariah Burnlej1, dec’d, knowing them at the time of their receipt to be assets of the said estate, shewing in such account the amount received, and the time when received; and unless the said defendants, or one of them, will admit assets of the estate of their testator in their or his hands to be administered, sufficient to satisfy any decree the plaintiffs may recover against them in this cause, then that the said defendants, executors as aforesaid, render before the same commissioner an account of their administration upon the estate of their testator.”
    From this decree Jaquelin P. Taylor, executor of James M. Morris, appealed.
    Lyons and Robinson, for the appellant:
    The bill making the appellant a party defendant was filed in October, 1846, to impeach a transaction which took place more than twenty years before. The deed from Taylor and wife for the benefit of James M. Morris, to secure the sum of $5,404 48, conveyed property amply sufficient to secure the debt. It consisted, besides a tract of land, of twenty-six slaves, the sale of which latter produced a sum more than enough to satisfy the debt. The appellees rely on the paper, dated December 10th, 1822, signed by Morris, which recites that Taylor did, on the 21st February, 1822, pay to Morris ¿1,444 Is. lid., in part payment of the debt which that deed was intended to secure, and which further recites as to this sum, that Morris was informed by Taylor at the time that it was derived from the assets of Z. Burnley’s estate.
    The bill does not charge fraud, but merely, that because Morris received assets of the estate from the administrator, knowing them to be such, therefore he is to be held to account for them to the legatees. Hunter *v. Lawrence’s adm’r et als., 11 Grat. 134, shows that a person dealing with a fiduciary in such case is held responsible on the ground that he was a participant in the commission of a fraud by the fiduciary. In this case, as in that, too, the sureties of the administrator were bound to see that the estate sustained no loss. They might have guarded themselves and the estate from all loss, as the estate conveyed to secure Morris and assigned to them was amply sufficient. What was the position of these sureties, and what did they do?
    It appears that a treasury warrant issued on the 8th December, 1821, for the seizure and sale of the lands and goods and chattels of W. D. Taylor, who was a delinquent United States collector. The execution of this warrant was suspended by the order of the Treasury department, and by the same authority a deed of trust was taken on the property levied on (which included that previously conveyed to secure James M. Morris,) to secure the United States. This second deed was dated February 1st, 1822. It appears by a letter of the agent of the Treasury department, dated 26th February, 1822, that it was agreed between the department and Mr. Morris that the negroes should be sold on a credit for the joint benefit of Morris and the United States, and the debt to Morris was to be first paid out of the proceeds of the sale of the slaves, thus recognizing the priority of his lien. The sale was not made until December, 1822. Taylor’s sureties in his administration bond, to obtain the benefit of Morris’ lien as against the United States, and to have the management of it themselves, paid him the balance of his debt, and took an assignment of the lien to themselves. Sales were then made by Thornton, the deputy marshal and trustee under the second deed, of the lands under the treasury warrant, and of the slaves under the second deed, and Madison and Darracott, Taylor’s sureties, filed their bill in the U. S. court to recover out of the proceeds the $1,682 05 paid by them to Morris, and also what Morris had received from Taylor. *At an early stage of that cause, in June, 1825, there was a decree in their favor for the sum of $1,682 05, which had been paid by them to Morris.
    If there had been any reasonable diligence on the part of these sureties, or on the part of any body else interested in Burnley’s estate, there would have been no difficulty in recovering out of the proceeds of sales a further sum, equal to the amount received by Morris of Taylor. But for five years not a step was taken in the cause. It stood still from 1825 to 1830. Thornton, the trustee, who made the sales under the deed of trust, and had the proceeds in his hands, died insolvent. In 1831, Madison and Darracott obtained a decree against Thornton’s administrator for the whole amount claimed by them. But owing to their laches in prosecuting the suit, and the death of Thornton intervening, another question had arisen, and the court decided, that their claim was a simple contract debt, and must be postponed to debts of a superior dignity due from Thornton’s estate.
    The security obtained by the sureties, under the assignment from Morris, was lost by their laches. There is then no objection to the decree of the court below, so far as it holds the sureties of Taylor responsible. It is consistent with the decree of the Court of Appeals in Burnley’s representatives v. Duke et als., 2 Rob. 130, and with the current of authority. It is now settled, that loss occasioned- by a breach of trust on the part of a fiduciary is to be borne by those who have become bound, as sureties, for his faithful discharge of that trust, rather than by any third party. Hunter v. Lawrence’s adm’r, 11 Gratt. 134; Corbell v. Zeloff, 12 Gratt. 226. And here, by the very terms of the assignment, it is clear, that if there be liability on any one, it is on the sureties in exoneration of Morris. But the decree of the 12th of April, 1850, which holds Morris’ executor responsible for the sum received by Morris of Taylor, is erroneous.
    Suppose the plaintiffs below had filed their bill immediately *after the assignment to Morris, and it had appeared, that the sureties had either in their hands, or the means of getting into their hands from the proceeds of the property of the principal, as much as Morris had received, it is very clear the decree would have been against the sureties in exoneration of Morris. Now it is contended, that their laches of twenty or thirty years have entitled them to a decree against Morris, which they could not have obtained at an early period.
    Suppose the legatees had proceeded as early as Darracott and Madison, and the legatees had sued the sureties and Morris, and tne sureties had sued Morris and Thornton, could there have been any decree against Morris, either before Thornton’s insolvency or afterwards? While the money was in Thornton’s hands, and he solvent, the decree could have been against him, and Morris would have been forever exonerated. After Thornton’s insolvency, the decree would have been against Darracott and Madison, and thus Morris exonerated. If, in the long lapse of time, both Thornton and the sureties have become insolvent, it would be most inequitable at this day to charge Morris. Morris’ position is like that of an assignee. 2 Rob. Prac. (new ed.) 278. It is no excuse that the suit against the sureties has been pending a long time, for they have been remiss in its prosecution. Hayes v. Goode, 7 Leigh, 452. The report of Burnley v. Duke shows, that there had been mismanagement, as well as remissness, in the prosecution of this suit.
    This suit, although pending long before, was not commenced against Morris until October, 1846. Miller v. M’Intyre, 6 Peters, 61; 2 Rob. Prac. (old ed.) 253. There was then a lapse of fully twenty-four years, between the 21st February, 1822, when Morris received the ^1,444 Is. lid., and the 10th of October, when the appellees filed their bill making him a party. In this court, a lapse of time exceeding twentjr' years is an equitable bar. The appellees make no averment in answer to this bar, such as is required by the Supreme "Court in Stearns v. Page, 7 How. 819; nor could they have made, in truth, an allegation of the discovery of the fraud within five years, before the proceedings against Morris., They had knowledge of it more than twenty' years before the bill filed against Morris, by an exhibit filed in this cause, as appears on the face of their bill. This exhibit was filed September 23d, 1826. This acquiescence, with full knowledge of the facts, is evidence of a waiver or abandonment of their rights. 2 Rob. Prac. 255, (old ed.) Even if Morris’ dealing with the administrator made him a trustee, still lapse of time will bar the plaintiffs. Elliott v. Merryman, 2 Atk. 42; Bonny v. Ridgard, I Cox. 145; Andrew v. Wrigley, 4 Brown Ch. R. 125.
    Cases of this sort are regarded as implied or constructive trusts, and are subject to be barred by the lapse of a shorter period than would bar an express trust. 2 Rob. Prac. (old ed.) 257; Kane v. Bloodgood, 7 Johns. Ch. R. 90; Portlock v. Gardner, 23 Eng. Ch. R. 594; Roberts v. Tunstall, 30 Eng. Ch. R. 263; Browne v. Cross, 7 Eng. L. & Eq. R. 263; Bone v. Chiles, 10 Peters 223; McKnight v. Taylor, 1 How. 161; Bowman v. Wathen, 1 How. 189; Sheppards v. Turpin, 3 Grat. 394; Smith v. Thompson, 7 Grat. 112; West v. Thornton, Ibid, 177. It is submitted, that as to the executor of Morris, the decree should be reversed, and the bill dismissed.
    Griswold, for the appellees:
    A party, who receives from an executor or administrator, in payment of a private debt due by the executor to him, the assets of the estate of the testator or intestate, knowing them to be assets, if the executor or administrator by such disposition of the assets, commits a devastavit, becomes a party to the breach of trust and is liable to creditors and legatees to the extent of the assets so received. 1 Story’s Eq. Vi 395, 422, 3, 4; 2 Story’s Eq. (S 1257; Mechanics Bank of Alexandria v. Seton, 1 Peters’ R. 309; *Dodson v. Simpson, 2 Rand. 294; Graff v. Castleman, 5 Rand. 195; Jackson v. Updegraffe, 1 Rob. 107; Broaddus v. Rosson, 3 Leigh, 12; Field v. Scheiffelin, 7 John. Ch. R. 150; Hunter v. Lawrence, II Grat. 126, 131-3.
    J. M. Morris having dealt improperly with the assets of Zach. Burnley’s estate, became answerable to the appellees for the assets received by him, upon its being made to appear, that such disposition of the assets was a devastavit by W. D. Taylor, and upon the failure of W. D. Taylor to make good the amount. The appellees have the right to resort directly to Morris’ estate, upon the return of nulla bona upon a fieri facias against Taylor, and are not required to take any other steps for the purpose of exhausting the estate of the said Taylor before coercing payment out of Taylor’s estate. Chamberlayne v. Temple, 2 Rand. 400; Dabney’s adm’r v. Smith’s legatees, 5 Leigh, 13; Roberts v. Colvin, 3 Grat. 358. But this question does not arise upon this appeal. The decree appealed from only holds Morris’ estate answerable, upon the failure of Taylor and his sureties to pay the demand of the appellees.
    As to the third point in the petition of appeal, it cannot affect the appellees. They have nothing to do with it. The3T were no parties, and are in no way privy to any arrangement between Morris, Taylor, Madison and Darracott. By the transfer of the assets to Morris, by Taylor, they all — Tajr-lor, Morris, Darracott and Madison — became liable to the appellees. By that very act, the liability was fixed, and no subsequent arrangement between them, to which the appellees were not party nor privy, can discharge them from that liability.
    The act of limitations does not protect the appellant. By dealing improperly with the assets, he became answerable in the same manner as Taylor himself was answerable. 2 Story, 11257; 1 Peters’ R. 309; Graff v. Castleman, 5 Rand. 202; Broaddus *v. Rosson, 3 Leigh, 27. Sheppard v. Turpin, 3 Grat. 373, is not authority. The question was not necessary to the decision of that case -and only two judges concurred in the dictum. And it is in conflict with long established principles. But even were it other-wise, time has not even yet begun to run in favor of Morris. His liability, although fixed when he first received the money, yet was only contingent, and could not be enforced, until by a settlement of Taylor’s account he was shewn to be in debt to the appellees, and a decree against him had proved unavailing. The appellant by dealing with the assets, became participator in a fraud —provided Taylor failed to account for the assets, and this could only be known by the settlement of the account, and the decree proving unavailing. Code of Virginia, chap. 149, sec. 6, p. 591; Session Acts, 1826, p. 24; Cookus v. Peyton, 1 Grat. 431.
    
      
      Administrators. — See monographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
   TYLER, J.

On the first day of November, 1819, William D. Taylor, being indebted to James M. Morris in the sum of 85,404 48, executed a deed of trust on a tract of land and twenty-six slaves, and their increase, to secure said debt; and on the 21st of February, 1822, in part discharge of said debt, he paid to said Morris £1,444 Is. lid., which sum the said Taylor informed Morris at the time of payment was derived by him from the funds of the estate of Zachariah Burnley, dec’d, (of which estate the said Taylor was the administrator de bonis non.) John Darracott and James Madison, who were the sureties of Taylor as administrator de bonis non aforesaid, being liable for this act of the administrator, if by said payment he, the said Taylor, had committed a devastavit, agreed to pay Morris the balance of the debt, if he would assign to them the security provided by said deed, which he consented to, and thereupon executed, on the 10th of December, 1822, the assignment exhibited in this suit. It further appears, by the bill of the complainants, that this *assignment was made an exhibit in this cause on the 23d of December, 1826.

Various proceedings were had in the cause, which we deem unnecessary to notice, with the exception, that a decree pronounced in the cause on the 9th of October, 1832, was reversed by the Court of Appeals on the 12th of May, 1843, dismissing the bill as to certain parties, adjudging that William D. Taylor and his securities on the administration bond were liable for the amount of assets received by said Taylor of Alexander Shepherd’s representative and Hardin Burnley’s representative, together with any other assets of Zachariah Burnlej’ which came to the hands of said William D. Taylor, and leave was given the complainants to amend their bill, and to make any person a party who had improperly received from said Taylor the assets of said Zachariah Burnley’s estate.

On the 25th day of October, 1843, this decree was entered in the Circuit Superior Court of Law and Chancery for the county of Essex, and leave then given, pursuant to-the decree of the Court of Appeals, to make new parties. No process, however, was issued to bring in these new parties for more than three years after this leave was given. On the 12th of November, 1846, it appears that subpoenas were issued against Overton and J P. Taylor as executor of James M. Morris, which were executed on J. P. Taylor on the 1st of December, 1846. The date of service on Overton does not appear on the record. On the 12th of April, 1850, a decree was rendered in the court below, declaring the liability of Morris’ estate for the amount received by him of Wm. D. Taylor, on the failure of the complainants, to realize payments from the said Taylor and his sureties. Erom which decree the representative of Morris appealed.

Thus it appears that more than twenty years elapsed after the complainants were fully apprised of the act of Morris which is the subject of their complaint in this suit, and that nearly twenty-five years had elapsed *since the act complained of before the amended bill was filed in this suit making Morris’ representatives parties, and there is no reason assigned in the record for this delay. Although the evidence may be sufficient to hold Morris accountable as a constructive trustee, still that no fraudulent purpose existed is not controverted. He surrendered the most ample security with a desire to protect the securities of Taylor from loss, and the motive to perpetrate a fraud did not exist. If, under such circumstances, the complainants slept on their rights nearly twenty-five-years after the act complained, of, and upwards of twenty after full knowledge of the act, during which term Morris had died and all means of recourse against others were lost to Morris’ estate, there can be no reason why this court should overstep the general rule in equity to make the case an exception. The decree must be reversed.

THOMPSON, J., and FIELD, P., concurred.

DECREE.

The court is of opinion, that so much of the decree of the 12th of April, 1850, which is appealed from as declares the liability of the estate of James M. Morris to the complainants on account of the assets of Zachariah Burnley’s estate received by him from Vm. D. Taylor, his adm’r de bonis non, on the failure of the complainants to realize payment from said Taylor and his sureties in his official bond, is erroneous. Therefore, it is decreed and ordered, that the same be reversed and 'annulled, and that the appellees pay unto the appellants the costs by them expended in prosecuting- their appeal aforesaid here; and this court, proceeding to render such decree as the court below ought to have rendered, it is decreed and ordered, that the bill of the complainants be dismissed as to the representatives of J. M. Morris, with costs.

On a subsequent day of the term, Griswold, counsel *for the appellee, by the leave of the court, filed a petition for a re-hearing, containing an elaborate argument of all the questions arising in the cause. He argued:

That the appellees ought not to be barred by the failure to prosecute their claims against Morris’ estate, because his liability was collateral and contingent, and could not have been enforced, until it was ascertained that they could not be satisfied out of Taylor’s estate; that lapse of time does not operate to protect against a collateral liability, so long as it remains collateral and begins to run, in favor of one collaterally liable, only from the time the liability becomes direct, by the failure of the party principally liable, to meet and discharge it. Roberts v. Colvin, 3 Grat. 358. That there was no case to be found where lapse of time was held to bar recovery against a party collaterally liable, where the plaintiff had diligently prosecuted the party directly and principally liable. That here, from 1822 to 1846, the complainants had diligently prosecuted their claims against Taylor and his sureties. These principles were recognized by the act of Assembly of March 8th, 1826; Sess. Acts, 1826, p. 24; and the Code of Virginia, ch. 149, | 6, p. 591; Coolius v. Peyton, 1 Grat. 431. That even if the law were otherwise, there had been no laches on the part of the appellees. That lapse of time is permitted to defeat a legal right only on the ground of affording evidence, evincing a presumption that the claim has been satisfied or abandoned, and never prevails, where the presumption is rebutted; Nelson v. Carrington, 4 Munf. 343; or in a court of equity, unless the plaintiffs have been so negligent, that, by reason of their negligence, there can no longer be a safe determination of the controversy, and their adversaries would be exposed to the danger of injustice from loss of evidence. Smith v. Thompson, 7 Grat. 112; 2 Story’s Equity, § 1520.

That, in October, 1832, the decree of the Circuit Court of Essex discharged Taylor and his sureties from all liability for these assets, and charged them upon the estates of Pendleton and Shepherd, which were abundantly *able to pay. This decree extinguished Morris’ liability; and, while it remained unreversed, the ap-pellees had no claim which they could enforce against Morris. If they had brought suit against him, he could have defended it by setting up the decree of 1832, unreversed and still pending in the Court of Appeals. After that decree was reversed, the delay in filing the amended bill was fully accounted for by the necessity of ascertaining the state of parties, who were widely scattered, and many of whom had .died during the pendency of the appeal. That the fact that Morris intended no fraud, made no difference. “Every person, ’who acquires personal assets by a breach of trust or dev-astavit in the executor, is responsible to those who are entitled under the will, if he be a party to the breach of trust. ’ ’ Hill v. Simpson, 7 Vesey, 167; McLeod v. Dummond, 17 Vesey, 167; Andrews v. Wigley, 4 Brown Ch. R. 133, n. 11. The arrangement between Morris and Madison and Darracott could not affect the rights of the legatees, who were not parties to it.

THOMPSON, J.,

on the petition for a rehearing :

I am opposed to a re-hearing, not only because satisfied with the rectitude of the opinion delivered by Judge Tyler, now sought to be reconsidered, in which I concurred, and to which I still adhere, which based the decision upon laches, lapse of time and the statute of limitations, irrespective of the merits, but because I was and still am by no means satisfied of the correctness of the decree of the court below upon the merits. On the contrary, the inclination of my mind is so strong in that direction, so nearly approximating a conviction on which I would, as at present advised, base my judgment if it were indispensably necessary to pass upon the merits, that I should hold there was not such a dealing with the assets disclosed in this case between Taylor and Morris, as to charge or convict either Taylor of a breach of trust, or fraud in fact, or by implication *of law, or Morris of complicity, participation in or connivance at such fraud or breach of trust. Fairly considered, it was a perfectly innocent and bona fide transaction, both on the part of Taylor and Morris, sanctioned after made, if in truth not previously desired and brought about by the sureties of Taylor— and so far from being viewed in the light of a mala fide appropriation by Taylor of the assets of his testator to pay his own personal debt to Morris, ought to be considered as, in truth and in fact it was, an investment by the executor of choses in action belonging to the estate into other choses secured by mortgage on land and slaves — and it certainly, as it seems to me, is a circumstance of not the least importance, that for the choses in action received by Morris, he gave back in exchange to the sureties of Taylor, which is tantamount to giving them back to the estate, a chose, which was a debt of Taylor to Morris, thus amply secured by mortgage on land and slaves. If instead of Taylor’s debt thus secured, Morris had given back the debt of a stranger for the same sum, similarly secured or not secured at all, I presume it would not be pretended that it made Morris liable as for participation in a breach of trust, and the fact that it was Taylor’s own debt, though it alters the force, does not alter the substance of the transaction; both equally repel mala fides and breach of trust. The transaction disclosed in this case, so far from being intended or from operating a diversion of the assets from their legitimate channel and appropriate destination, was calculated to produce the opposite result— to give those interested in the estate better security for their forthcoming when called for' — and was doubtless so intended by Taylor’s sureties, and there is not the least reason to ascribe a different intention either to Taylor or to Morris.

ETEBD, P.,

on the petition for a re-hearing:

In the case of Morris’ executors v. Duke’s administrator and others, decided a few days ago in favor *of the appellant, by the unanimous opinion of the court, a petition for a re-hearing has been filed by the appellees. We have maturely considered the petition, and are of opinion that the rehearing should not be allowed.

Whether Dr. Morris could at any time have been held responsible for the money paid over to him by William D. Taylor, was a question on which there was a diversity of opinion amongst the sitting judges. But let it be conceded, for the purposes of the petition, that he might have been held responsible to the appellees for the amount: How does the case stand? That responsibility arose upon a strict rule in equity, by which Morris, on the receipt of the money, became a constructive trustee, and as such was bound to account for it as assets of Burnley’s estate, with the creditors and legatees of the testator. But the situation of a constructive trustee is different in some respects from that of a trustee created by deed, will or other instrument, for the purpose of executing an expressly delegated trust. In respect to lapse of time, for example, in a case where the liability arises upon a constructive or implied trust, by a like strict construction of the equitable rule, which creates the trust, the suit to enforce that responsibility should be brought within twenty years after the cause of action arises, or comes for the first time to the knowledge of those interested in the funds. The suit in this case was not brought until after the lapse of twentjT-four years, seven months and upwards, after Dr. Morris received the money, nor until after the lapse of more than twenty years from the time when the appellees had notice of it, and as a matter not unworthy of consideration, it is evident that the appellees, by the use of very ordinary diligence, might have obtained this notice sooner than they did.

It is an error to suppose that if Dr. Morris was responsible at all, his situation in that respect was like that of the surety in the bond of an administrator or *guardian, who is collaterally bound for the default of his principal; whereas Morris’ responsibility was not for the default of Taylor as collateral security, but by receiving the assets of Burnley’s estate from Taylor, he thereby became a trustee for the benefit' of the creditors and legatees of Burnley, and was responsible to them as a principal debtor for the amount of the assets received by him. The right of creditors and legatees to enforce this responsibility occurred when Morris received the money, and they had notice of it. It was not suspended until Taylor’s accounts should be settled and his default ascertained. And therefore the cases of Colvin and Roberts and Cookus v. Peyton, referred to in the petition, have no bearing upon this question. Indeed, the argument in the petition, in this respect, if it establishes anything, proves too much; for if it be true that the liability of Morris was collateral, and could not be enforced by suit, until Taylor’s accounts should be settled and his default ascertained, this suit was brought prematurely, for Taylor’s accounts have not been as yet settled, nor his default ascertained.

TYL/ER. J., was for rejecting, the petition.

Petition rejected.  