
    Turner & Wife v. Campbell & als.
    April Term, 1846,
    Richmond.
    1. Fraudulent Conveyances — Right of Beneficiary to Set Up Fraud as against a FeIlow=Beneficiary. — Although a party to -whom property is conveyed upon a fraudulent secret trust, may hold it as his own, against the grantor and his representatives, yet, if the grantee assents to the trust, and executes it in part, it is not competent for such of the cestuis que trust as may have gotten possession of the property, to set up the fraud for the purpose of defeating the claim of the other cestuis que trust to their share of the property.
    2. Statute of Limitations. — The statute of limitations is no bar to a recovery in such case.
    In 1835, Zaccheus Campbell and Sally his wife, and William W. Turner, filed their bill in the Circuit Superior Court of Caroline county, against John R. Turner as executor of Frances Turner, and the said John R. and Elizabeth his wife in their own right, and the administrator of Shelton Ragland, in which they charged: that Richard Turner deceased, the father of said Sally, William W. and Elizabeth, executed to the late Shelton Ragland a deed which was on its face absolute, for sundry slaves, but that this deed was upon the express condition of a confidential trust, that Richard Turner should have the use of these slaves during his life, and after his death Ragland should hold them for the use of ^Richard’s widow and their chil- , dren. That Frances the widow of
    Richard Turner, who survived him several years, was permitted by Ragland during his life, to hold said slaves; and his administrator permitted her to hold them till her death. That said Frances having been thus permitted to hold said slaves, she by her will undertook to dispose of them as of her own property; and her executor John R. Turner having gotten possession of them, refuses to deliver them up for a division among the children of Richard Turner. The bill then prays that the trust may be established; and that the slaves with their increase may be equally divided among the cestuis que trust.
    John R. Turner in his answer, after giving the names of the negroes which had come into his hands as executor of Frances Turner, says, that Eucy one of these slaves, and from whom all the others descended, was conveyed by Richard Turner to Shelton Ragland by an absolute bill of sale in 1806, prior to the birth of any of her children which came into his possession. That he had never heard of any secret and confidential trust being attached to this bill of sale; and he leaves the plaintiffs to prove it. That he has been informed and believes that Richard Turner was, at the date of the bill of sale, indebted to insolvency, and so continued until his death in 1807. That he could not therefore have conveyed his property to Ragland clothed with a secret confidential trust for the benefit of his family without being guilty of a gross fraud upon his creditors; and defendant therefore submits whether a Court of Equity will aid the cestuis que trust to enforce a trust founded in fraud.
    The answer further states, that though the defendant has no personal knowledge of the fact, he has reason to believe and does believe that his testatrix acquired title to the negro woman Lucy and her children then born, from Shelton Ragland, some twelve or thirteen years ^before his death; and that her possession of said negroes was uninterrupted and uncontroverted from that time until 1834, when she died; a period of not less than eighteen or twenty years. The defendant relies upon this long and uninterrupted possession of his testatrix in bar of the claim of the plaintiffs; and also pleads the statute of limitations.
    The administrator of Shelton Ragland answers, that he knows nothing on the subject, and can neither admit nor deny the allegations of the bill; but submits his rights to the consideration and judgment of the Court.
    From the evidence in the cause it appeared to the satisfaction of the Court, that in 1806, Richard Turner made an absolute bill of sale of the slave Lucy to Shelton Ragland; and that the other slaves mentioned in the bill and the answer of John R. Turner were descendants of Lucy, born since the execution of this conveyance. That the object of the conveyance was to protect the property from the creditors of Richard Turner; and that at the time of its execution it was agreed between Richard Turner and Ragland, that Ragland should hold the said slave and her increase for the benefit of Turner’s wife during her life, and after her death for the children. Richard Turner died in 1807, and a short time thereafter the slaves went into the possession of Mrs. Turner, who held them until her death in 1834. By her will she gave some of these slaves to her son William W. Turner, and the others she gave to her daughter Elizabeth, the wife of John R. Turner.
    When the cause came on to be heard, the Court made a decree establishing the trust, and directing John R. Turner to surrender the slaves to commissioners who were appointed to divide them equally among the three children of Richard Turner. From this decree John R. Turner and wife applied to this Court for an appeal, which was allowed.
    *Leigh and G. N. Johnson, for the appellants, referred to James v. Bird’s adm’r, 8 Leigh 510; Terrell v. Imboden, 10 Leigh 310; Owen v. Sharp, 12 Leigh 427; to shew that a Court of Equity would not set up a fraudulent secret trust at the suit of a party to the fraudulent act. And they insisted that though the children of Richard Turner did not actually participate in the fraud, they were parties to the fraudulent trust, and therefore could not be heard in a Court of Equity to set it up.
    Bouldin and Stanard, for the appellees, insisted that this was not the case of a fraudulent grantor asking the aid of a Court of Equity to set up a fraudulent secret trust against his giantee; but it was a suit between beneficiaries under the same trust, where the grantee had executed the trust in favour of the life tenant; and made no objection to the execution of.it in favour of those in remainder.
    
      
      Fraudulent Conveyances. — See monographic note on “Fraudulent and Voluntary Conveyances” appended to Cochran v. Paris, 11 Gratt. 848.
    
    
      
      Statute of Limitations — Purchasers of Trust Prop» erty. — To the point that no statutory bar of limitations applies to a purchaser of trust property with notice of the trust, the principal case was cited in Lamar v. Hale, 79 Va. 164.
      Por the sequel to the principal case, see Turner v. Campbell, 1. P. & H. 256.
    
   BALDWIN, J.,

delivered the opinion of the Court.

The Court is of opinion, that the appellants, claiming under the will of Frances Turner deceased, have not shewn any title in her to the slaves in controversy derived by purchase from Shelton Ragland, to whom they were convej'ed by the bill of sale in the proceedings mentioned, executed by Richard Turner in his lifetime to said Rag-land ; and that it appears from the evidence the said Ragland did not claim title for his own benefit under the said bill of sale, but only as trustee for the use and benefit of the said Frances Turner during her life, and, after her death, for the use and benefit of the children of said Frances; which trust was partly executed during the life of said Frances, by her possession, use and enjoyment of the property. ' The Court is therefore of opinion that it is not competent for the appellants to rely upon the legal title conveyed as aforesaid *to said Ragland, nor upon the possession, use and enjoyment of the said Frances, as aforesaid, in order to dfefeat the full and perfect execution of said trust, by an equal division of the property amongst the children of said Frances and their representatives. And the Court is further of opinion, that though, if the said Ragland had claimed title for his own benefit under the said bill of sale, it would not have been competent, if the same was made to defraud creditors of the grantor, for the said Frances and her children to have set up against the absolute title thereby convej'ed a secret trust attending the same in their favour; yet, inasmuch as the said Ragland disclaimed all title for his own benefit to said slaves, and permitted the said Frances to enjoy the same as cestui que trust thereof for her life, with remainder to her children, the appellants, who shew no title except as co-cestuis que trust in remainder, cannot now defeat the full execution of the trust, nor appropriate the exclusive benefit thereof to themselves, by relying upon the fraudulent intent with which said bill of sale may have been executed, nor avail themselves, under the circumstances, of the statute of limitations. The Court is therefore of opinion that there is no error in said decree.

Decree affirmed.  