
    Case 89 — EQUITY
    January 22,1884.
    Helm’s Ex’r v. Rogers.
    APPEAL FROM THE HARDIN CIRCUIT COURT.
    1. The statutes of limitation do not apply to express and continuing trusts.
    2. Lapse" of time is ineffectual as a bar where the relation of the trust is acknowledged between the parties.
    3. But where the relation of trustee is denied, or time and acquiescence has obscured the nature and character of the trust, or the acts of the parties authorize a presumption unfavorable to its continuance, relief will be relused upon the ground of lapse of time and inability of the chancellor to do justice between the parties.
    WILSON & HOBSON for appellant.
    The claim is stale and the trust is denied. (McKnight v. Taylor, 1 How., U. S., 161; 18 Yesey, 286; Bettis v. Allen, 10 Bush, 40.)
    The trust being denied by the answer, and not established by the proof, the statute of limitation applies. (Buckner v. Patterson, Litt. Sel. Ca., 234; Johnson’s Oh’y, 69.)
    The slave had no legal existence. (Taylor v. Embry, 16 B. Mon., 340; Graves v. Allen, 13 lb., 190.)
    SAMUEL McKEE for appellee.
    It is a well settled principle that courts of equity will hold limitation as a bar when the trust has been ended by a payment, and time is relied upon.
    
      But a mere declaration of payment, not brought home to the cestui que trust, can neither end the trust nor stop its continuance, nor bar the cestui que trust’s demand for a settlement. (3 Wheaton, 481; 3 Howard, 411; 3 Beters, 223; 16 Otto, 106; Thomas v. White. 3 Litt., 177; 2 Mar., 445; 7 Mon., 559.)
    ' The decedent received the fund in virtue of a special act, and received it as trustee. (Sess.Acts, approved February 28, 1850.) The act was obtained by the decedent himself.
   CHIEF JUSTICE HAEGIS

delivered the opinion of the court.

It is well settled in this State that the statutes of limitation do not apply to express and continuing trusts, which •are exclusively cognizable in equity. Such trusts are not ■embraced by the letter or spirit of any part of the existing .statutes of limitation; hence they are subject to the rules of equity, which nearly always bear some analogy to the law ■on the subject of limitation, and when such analogy can not be safely followed, they act upon their own inherent doctrine of discouraging antiquated demands when there has been gross neglect in prosecuting rights, or long and unreasonable acquiescence in the assertion of adversary claims. The general rule that lapse of time constitutes no bar in cases of express and continuing trusts, over which there is no jurisdiction at law, has several qualifications.

Lapse of time is ineffectual as a bar where the relation of "trust is acknowledged to exist between the parties and its continuance unbroken. This may be considered an elaboration and fuller explanation of the rule, merely; but where the relation is denied, or time and acquiescence have obscured the nature and character of the trust, or the acts of the parties or other circumstances authorize presumptions unfavorable to its continuance, relief will be refused on the ground of lapse of time, and inability on the part of the •chancellor to do complete justice. (Story’s Eq., secs. 1520, 1520 a.) In cases where no statute of limitation governs, a defense peculiar to courts of equity may be founded upon-the mere lapse of time and the staleness of the claim. This-rule is for the peace of society, and is enforced by the court-refusing to interfere. (Story’s Eq., sec. 1520; Maddox, &c., v. Allen, 1 Met., 497.)

Admitting, therefore, that this case presents what would', be an express and continuing trust, were limitation and payment not pleaded, we are nevertheless of opinion that, from the fact that the continuance of the relation of trustee-was openly denied upon the ground of payment of the trust, fund to the cestiü que trust, and she acquiesced in the assertion of the payment for eight years, and long after the-trustee was dead, and the means and evidence of payment, lost or obscured, she is not entitled to the active interference-of a court of conscience when so many circumstances tend, to raise a strong presumption of actual payment.

About 1840, John L. Helm, who was twice governor of this Commonwealth, and whose conduct as master of appellant, Hester, now over eighty years old, showed him to have been kind and iridulgent, permitted her to leave his home, and go to that of her husband, a free man of color, and there remain as his wife on condition that she should be maintained and provided for. She was furnished with articles and little comforts, and sent to her husband’s home to' act the part of a free wife, with the drudgery of slavery lifted from her shoulders, though she was in fact a slave and the-lawful property of John L. Helm.

She remained for eight or nine years, when her husband, died, owning land and personalty, without making any provision for her support. Her old master, whom she had. nursed in his childhood, again came to her relief, took her-back to his home, where she did about as she pleased, fed,. clothed and cared for her until 1865, when she was emancipated with the rést of her race. Shortly after her return from the dead husband’s domicile, penniless and unremembered by him, John L. Helm procured an act of the legislature, in 1850, to allow her one-third of the value of her deceased husband’s real estate after payment of his debts, his property being in some danger of escheating to the Commonwealth. A decree was rendered in pursuance of the act, and $125 was paid to Governor Helm as her trustee, July, 1850. For this sum and its interest Hetty brought this suit in 1874, twenty-four years after its receipt.

In 1865 or 1866, when Governor Helm was alive, she-caused the agent of the Freedman’s Bureau to demand this: money of him. He declined to pay it because, he said, he had paid her and over paid her, in small sums at a time,, whenever she would demand it, which was quite frequent. She made no further effort to assert this claim until long after Governor Helm’s death, which occurred on the 8th of September, 1867. Now, after the kind and generous master, who made her practically free, though legally a slave, gave her the dignity of wife and the comforts of a husband, cared for her when she was bereft of that relation, is dead— and the evidence unknown or forgotten, by which, we are' satisfied, it could once have been proven that he had more than paid to and for her the trust fund — she comes and asserts this stale claim against his estate without making the affidavit proving her claim, as required by law, still adhering to the old affidavit condemned on the former appeal, that there is no “just offset” to her claim, which she attempted to verify after the passage of the General Statutes. It comes too late; it is tainted with suspicion now; the circumstances, with the lapse of time, raise a strong presumption of its payment, and the chancellor ought to have so held.

Wherefore, the judgment is reversed, and cause remanded for further proper proceedings.  