
    
      Sarah Habersham, v. C. H. Hopkins & wife.
    
    Where it was the primary duty of the trustee, under the terms of the deed, to preserve the estate, in remainder, from being defeated or destroyed, it will not be presumed that, before its execution, he joined with the tenant for life in a feoffment to defeat it.
    Nothing dishonest or base is to be presumed in law. All presumptions are innocent and rightful; therefore a deed will not be presumed if it could only be in fraud and injury.
    
      Before Withers, J. at Gillisonville, Fall Term, 1849.
    The action was trespass to try title, and related to a lot in the town of Beaufoit.
    One Givens, the father of Mrs. Hopkins, lived on the premises from 1811, and according to all appearances occupied and treated them as his own. He died in 1843, and the defendants succeeded him in the occupation. In 1847 the house was burnt. There was a remarkable pear tree on the Jot, large, bearing fruit of the greatest excellence, one hundred years old, that was cut down by a negro of defendant; he was seen cutting it up in broad day, to the great regret of all who knew the tree. Orange trees, sweet and sour, and fig trees, were on the lot, and it had been pretty well stripped of all those, by consent of defendants. The jury found for the plaintiff the premises, and $850 damages.
    The question made in the case was, whether Givens’s possession could be regarded as adverse to the plaintiff previous to the death of her mother, Mrs. Catherine Elliott, who died in 1844. The plaintiff, Mrs. Habersham, was her only surviving child : and the question grew out of a deed of trust from Barnard Elliott, her father, to Wm. Hazard Wigg, his heirs and assigns forever, “ In trust to support and preserve the contingent uses and estate therein after limited from being barred or destroyed, but so as to suffer and permit the said Barnard Elliott and his assigns to occupy and receive the profits of said premises, to his and their own use, for and during the term of his natural life ; and, from and after his decease, to the use of Catherine Elliott his wife, for hernatu-1 ral life, without impeachment of waste; and from and after the determination of that estate, or in case the said Catherine should survive the said Barnard, and from and after the death of the said Catherine Elliott, in trust to and for the use of such child or children that the said Catherine Elliott may then have living, share and share alike, to them, their heirs and assigns forever.” (Recorded in office of Secretary of State, April 9th, 1793.)
    The argument was, that notwithstanding a conveyance to uses by Barnard Elliott, the trustee, with consent of the ces-tui que use, might have conveyed a good title to a purchaser by deed of feoffment with livery of seizen ; and this should be presumed from the long adverse possession of Givens.
    The Circuit Judge held otherwise: that though, (as adjudged in Redfern v. Middleton,) deed offoeffment with livery of seizen by tenant for life of the legal estate, will bar contingent remainders, yet the deed of Barnard Elliott to Wigg was precisely such as was designed to prevent that result; that the legal estate was vested in him, and not in a tenant for life, by express words, to preserve and not defeat remainders, and, therefore, we were not to presume he did what he was forbidden to do. His Honor held that the possession of Givens did not become adverse against the plaintiff until her right of entry accrued, which was not until her mother’s death in 1844 ; because adverse possession involves the idea of disseizin of one having the right of entry, as attendant upon the legal estate vested, or the disseizin of one actually possessed and ousted. Mrs. Habersham could not have occupied this attitude previous to 1844, according to the terms of the deed of trust.
    Defendant appealed and moved for a new trial :
    1st. Because his Honor charged the jury that Catherine Elliott took, under the deed of Barnard Elliott to William H. Wigg, no interest in the premises sufficient to constitute a Jife . tenancy, but a use merely, and that the trustee could not, by any proceedings in co-operation with the cestui que trust, bar the remainder.
    2d. Because his Honor charged the jury that the deed of Barnard Elliott conveyed no estate against which the defendant could acquire title by adverse possession.
    3d. Because the possession of Givens and his heirs, since 1811, was sufficient to raise the presumption of a grant in their favor, and his Honor should have so charged.
    4th. Because the verdict was contrary to law and evidence.
    
      E. & H. Rhett, for the motion.
    
      F. W. Fickling, contra.
   Curia, per Frost, J.

The extract from the deed of settlement, in the leport, is incomplete. The lands mentioned in the deed, including the lot in dispute, are released “to William Hazard Wigg, h:s heirs and assigns, to have and to hold” the said lands “to the said Wm. Hazard Wigg, his heirs and assigns, to the use and behoof of the said William Hazard Wigg aud his heirs, upon trust, to preserve and support the contingent uses and estate, hereinafter limited, from being barred aud destroyed,” &c. as set out in the report.

It is clear that the trusts were not executed before the death of Catherine Elliott, and that the legal estate, until that event happened, remained in the trustee.

Where the cestui que trust and trustee are both out of possession, for the time limited, the party in possession has a good bar, under the statute of limitations, against them both. The defendant, has not relied on nor pleaded the statute of limitations; and it is unnecessary to consider what might have been the effect of the plea.

Whether the trust be executed or not, cannot affect the result of the applicant’s motion. If the trust was not executed, the trustee might, by joining with the tenant for life in a fe-offment, have defeated the contingent remainder of the plaintiff, before it came into existence. But to prevent this consequence, Wigg was appointed trustee, to preserve the contingent remainder. It was his primary duty to preserve the estate in remainder from being defeated or destroyed, and to combine with the tenant to accomplish that purpose, would be, legally, a clear breach of trust; and, morally, a breach of confidence. Nothing dishonest or base is to be presumed in law ; all presumptions are innocent and rightful; a deed will not be presumed if it could only be made in fraud and injury.

Even if the trusts were executed, the | ossession of the defendant would not warrant the presumption oí a deed from the plaintiff. His possession was not adverse to her title, but entirely consistent with it. If a deed could be presumed at all, it could only be from Catherine Elliott, the tenant for life. A release of all her estate would give defendant no title against the plaintiff.

It is not stated in the report, but was admitted in the argument, that the plaintiff produced a grant for the laud in dispute, prior to 1785. If a grant could be presumed to the defendant, its issue must be referred to the commencement of his possession. As a junior grant it would be void against the plaintiff.

The motion is refused.

Richardson, ON ball, Evans and Wardlaw, JJ. concurred.

Motion refused.  