
    Pipher and others against Lodge.
    
      June.
    
    In Error.
    rabruie^is|e" aai?ofKnd and before á ule Rpl'tiü? the trustee of the vendee, limitation? will have no BPu?where *savowa°the trust,and after veretfpoasesvendee^makes a lease’to a in opposition the1 vendee °f and the lessee hoids possession, the jury may presume a disseisin, dee buffers'll" years to elapse without pro-scouting his hebarredby the actofliml-
    THIS ejectment was brought in the Court of Common -^eas Northumberland county, by Benjamin Lodge and. others, the children and heirs of Jonathan Lodge, deceased, against William Pipher, the tenant of----Lloyd and ^ara^ wifo» formerly the widow of Josiah Haines, deceased, who was one of the children of Reuben Haines, deceasech to recover 150 acres of land near Northumberland town, on the north branch of the Susquehanna. Both parties claimed under Reuben Haines, who it was agreed was seised t^ie ^and in dispute. The plaintiffs made title under a purchase by Jonathan Lodge of Reuben Haines, by parol agreement, accompanied with possession and payment of the w^°^e Purchase money. Although the original agreement was by parol, the plaintiffs produced a receipt for the purchase money, dated September 7th, 1782, purporting to be signed Reuben Haines, and containing a promise to make a deed to Jonathan Lodge. The defendant contended, that this receipt was forged, and this was the main point of fact disputed on the trial. The defendant claimed under a devise on 12th April., 1793, by Reuben Haines to his four children of foe residue of his estate; a devise by one of the children who died, of his share to his two brothers and sister, equally to be ' . divided among them ; a deed bearing date March 24th, 1795^ by Catherine Haines and Caspar W. Haines, two of the rer muining children, conveying the premises in dispute to the third, Josiah Haines, for a valuable consideration ; a devise by Josiah Haines on the 12th August, 1794, to his wife Sarah of one-fourth part of his estate absolutely, and of the rents and profits of another fourth part during her life, and an appraisement and valuation of the estate of Josiah Haines on 6th July, 1798, when this property was allotted to Mrs. Lloyd, his widow. Under these circumstances, the defendant’s counsel contended, that Mrs. Lloyd was to be- considered as a purchaser for a valuable consideration, without notice of Lodge’s equitable title, and therefore protected by the recording acts. The Court, however, were of opinion, that she was not such a purchaser, and an exception was taken to their opinion. The defendant relied also on the act of limitations ; having proved, that Reuben Haines in his life-time, after the supposed sale to Jonathan Lodge, made a lease to a certain person who entered on the premises, and proved also a possession in the devisees of Reuben Haines, for a considerable length of time. The counsel for the plaintiffs contended, that Reuben Haines, after the sale to Jonathan Lodge, became a trustee for him, and that consequently the act of limitations could have no operation during his life. Of this opinion were the Court of Common Pleas, who gave it in charge to the jury, “ That during the time the land was in the possession of the vendor, who must be considered as trustee for the vendee, they both holding under the same title, there could be no adverse possession.”
    Several other exceptions were taken to the opinion of the Court below ; all of which were abandoned on the argument here, except the two above stated.
    Hall, Bradford and Huston, for the plaintiff in error,
    contended, first, That the charge of the Judge was erroneous, because, when Reuben Haines gave up the possession, and received the purchase money, the contract was executed and the trust at an end, and that therefore when he afterwards entered, his possession was not that of a trustee, but adverse. A clear and direct trust is not, it was said, barred by any length of time, as between the trustee and cestui qui trusts but the Court will not allow a man to make out a case of constructive trust at any distance of time after the facts and circumstances out of which it arose occurred; on the contrary, not only in circumstances where the length of time would render it difficult to ascertain the true state of the fact, but where the true state of the fact might easily be ascertained, and relief would originally have been given on the ground of constructive trust, it is refused to the party, who, after a long acquiescence, comes into equity to seek relief. Sugd. 272, (2d Am. edit.) Chancery applies the rules of law to equitable cases in relation to limitations of time. Laches and neglect are equally discountenanced there and in courts of law, and nothing can demand the assistance of a court of chancery, but conscience and reasonable diligence. A bill therefore for a review of error apparent, will not lie after twenty years. Smith v. Clay.
      
       No particular length of possession by a mortgagee will bar the mortgagor’s right of recovery, and a variety of cases shew different periods of time, within which ithas been held necessary, according to circumstances, to file a bill to fedeem. As, however, twenty years will bar an entry, equity seems to have, adopted the same rule in relation to a redemption under ordinary circumstances. Note to Cook v. Arnham.
      
       Knowles v. Spence.
      
       Aggas v. Pickerill.
      
       Anonymous--.
      
       Botelerv. Allingtoti.
      
       Negligence is no less fatal to a bill for a specific performance. Under a great change of circumstances equity will not compel a specific performance of what otherwise it would have decreed. Attorney General v. Day.
      
       In England, it is not usual to allow twenty-one years for a bill for a specific performance. Six, eight or ten years will bar such a bill, except under par- ' ticular circumstances ; and in this county ten years have been held too long. Cringan v. Nicolson’s executors.
      
    
    In equity, the heir is deemed the trustee of the devisee; but if the devisee acquiesce a long time in his possession, equity will not relieve. Sugd. 135. (2d Am. edit.) After such a length of time as has elapsed in this case, equity would bar the vendor’s right of recovery, unless a case of unquestionable trust were made out. Much less will a party be entitled to recover after twenty-one years possession, by one who enters after the relation of trustee has ceased by the complete execution of the contract, and holds the land adversely. If Reuben Haines had made a deed to Jonathan. Lodge, and afterwards entered on him, his possession would have been adverse ; and surely it is equally so, admitting him to have given Lodge the disputed writing under which the plaintiffs claim. Where part of the purchase money is unpaid, the vendor retains an equitable lien for the balance, against a purchaser with notice that the money is unpaid; but as the whole of the purchase money was in this instance paid, the entry of Haines must have been adverse.. The rule as to actual ouster of a tenant in common by his companion, is applicable to the case of vendor and vendee, where the possession of the vendor is adverse j and this rule is, that after a long uninterrupted possession by one tenant in commoa without any account to or claim set up by his companion, an actual ouster of the co-tenant is to be presumed. Fisher v. Prosser.
      
       It should therefore have been left to the jury to determine, whether Reuben Haines entered as a disseisor, and if he did the land passed by his will.
    It was argued, secondly, that the widow of Josiah Haines was to be considered as a purchaser for a valuable consideration-without notice of Lodge's' equitable title. Josiéth Haines was himself a purchaser for a valuable consideration from his brothers and sister. He devised one-fourth of his estate to his wife absolutely, and one-fourth during life, and she accepted the land in controversy inter alia, in lieu of dower, without any knowledge of an adverse claim. The purchaser of the legal estate is not to be affected by a' latent equity. Wilcox v. Calloway .
      
       And the grantee even in a vo. luntary conveyance made by a purchaser for a valuable consideration without notice, shall hold discharged of a trust. Lowther v. Carleton.
      
       Here Mrs. Lloyd had the legal estate, and as strong an equity as the plaintiffs, and therefore must prevail over an equitable title which has been so long slept upon, and of which she had no notice. The writing upon which Lodge's claim is founded, might have been recorded under our acts of assembly, and ought to have been, to convey notice to subsequent purchasers. -A tenant in dower, is a purchaser for a valuable consideration. Marriage is a sufficient consideration for the settlement of an estate, and a subsequent sale for a valuable consideration, is not only invalid, against those who are within the consideration, but against those also who are not; if the limitations to them are necessary to give effect to those which are within the consideration. Sugd. 435. 468. 476. (2d Am. edit.) So far are the rights of those who derive an interest through marriage protected, that a feme covert is not compellable after the death of the baron to' complete a fine which he had covenanted she should execute, though she had acknowledged the fine before a Judge, but the baron died before the term; because her dower is to be protected. A widow too shall be endowed of an equity of demption though the mortgage was made before marriage, on paying a third of the mortgage money, or keeping down a third of the interest. Banks v. Sutton. 2 Bow, on Cónt, 58. On the same principle, if a grantee in a voluntary deed gain credit by the conveyance, and a person is induced to marry her on account of the provision made for her in the deed, such conveyance on marriage ceases to be voluntary, and becomes good against a subsequent purchaser for a valuable consideration. Sterry v. Arden.
      
       Upon partition made, the situation of children is altered. If one take the whole, and pay the others their shares, he is a purchaser for a valuable consideration, at least as to all but his own share. These principles are obviously applicable to the present case. Josiah Haines was a purchaser for a valuable consideration from his brothers and sister, without notice, and therefore protected against the pretended equitable title of the plaintiffs ; and his widow was also such a purchaser, having relinquished her dower and taken this devise in lieu of it.
    
      Greenough and Watts, for the defendants in error,
    after adverting to the evidence to shew, that it did not prove á possession of twenty-one years in Reuben Haines, and those who claimed under him, insisted, that if it did, his possession could not be considered adverse, but that after payment of the purchase money, he was a mere trustee for Lodge, the contract being incomplete until the execution of a conveyance. Equity regards that as done, which is agreed to be performed, and consequently when an estate is contracted to be sold, the vendor is regarded as the trustee of the vendee until a conveyance is made. Sugd. 130. (2d Am. edit.) 2 Row. on Cont. 38. The act of limitations does not bar a trust estate. Equitable circumstances may, indeed, exist, arising from length of time, which will bar the claim of cestui qui trust, but between the trustee and cestui qui trust there can be no adverse possession on which the statute of limitations will operate. Sugd. 266. 273. (2d Am. edit.) The situation of the plaintiffs below, is like that of one who has filed a bill for a conveyance, which equity would undoubtedly decree on the basis of the receipt. To give effect to the principles of equity in the absence 'of a court of chancery, the courts of Pennsylvania must consider the conveyance as executed, and permit the plaintiffs to recover through the medium of an ejectment, against those who come in under the vendee, and who as well as himself are to be regarded in the light of mere trustees.
    On the second point it was contended, that it was by no means clear, that Reuben Haines intended to devise the disputed land to Josiah Haines. The plaintiffs in error claim under a general devise of the residue of the estate to all the children equally. Josiah took the Northumberland estate, as his share on a partition of the whole estate. He was, therefore, not a purchaser for a valuable consideration, and if he were, Mrs. Lloyd could have no title, because the will of her husband, under which she claims, bears date before the deed from Caspar TV. Haines and Catherine Haines to Josiah Haines. Every partition implies a warranty. If, therefore, .the estate of Josiah Haines should lose this property, the other heirs must contribute to repair the loss. Reuben Haines having sold to Lodge, the land did not pass by his will. He was a trustee for Lodge, and if a trustee devise all the residue of his estate, the trust will not pass. Nor is the widow of Josiah Haines in a better situation than himself. Her case is not so strong as if she had taken this estate as dotver,- for if she is deprived of it, she may have recourse to the heirs of her husband for compensation. She took as devisee, and was therefore not in the nature of a purchaser for a valuable consideration; because all those who come in under one who has entered in articles to sell land, are bound. 2 Row. on Cont. 57. The Court below were, therefore, right in saying, that the recording acts did not apply to this case, because there was no purchaser for a valuable consideration.
    
      
      
        Ambler, 647.
      
    
    
      
      
        S P. IVinti. 287.
      
    
    
      
       1 Eq. Ab. 315.
    
    
      
      
         3 Aik. 225.
    
    
      
       3 Aik. 313.
    
    
      
       3 Atk. 453.
    
    
      
      
         1 Vez. 218.
    
    
      
       1 Sen. & Munf. 429.
    
    
      
      
        Cowp. 217.
    
    
      
       1 Wash. Rep. 41.
    
    
      
      
         Cas. Temp. Tal. 188.
    
    
      
      
         1 Eg. M. 61.
    
    
      
       2 P. Wms. 700.
    
    
      
      
         1 Johns. Cha. Rep. 261.
    
   The opinion of the Court was delivered by

Tilghman C. J.

(After stating the leading facts.). After a sale, and before conveyance of the legal title, the general rule is, that the vendor is a trustee for the vendee; and while his possession can be reasonably supposed to be in accordance with the trust, it should be construed for the benefit of the cestui qui trust, and consequently the act of limitations would have no operation. But where he who was the trus,tee, openly disavows the trust, the case is different; and especially, where, as in the present instance, the vendor, after having delivered possession to the vendee, makes a lease to a third person, io opposition to the title of the vendee, and tfie lessee enters and holds the possession. This is notice to the vendee, that his title is denied, and if he suffers 21 years to elapse without prosecuting his claim, I see no reason why the jury should not presume a disseisin; in consequence of which the act of limitations would take effect. The law of tenants in common, as decided in Fisher, &c. v. Prosser, Cowp. 21/, be..rs some analogy to the present question. A s long as one tenant in common, who is in possession of the whole, acts in such a manner as not to den}' the title ox his partner, he snail be presumed to hold as tenant in common, and the act of limitations will not attach ; he may receive all the profits, and yet not deny that he is accountable. But where his actions are not reconcileable with the right of his co-tenant, where he declares that he claims for himself exclusively, refuses permission to the other to enter, and denies that he is accountable for the profits, the presumption of holding as tenant in common fails, and a contrary presumption arises, viz. that he has ousted his companion, in consequence of which the act of limitations takes effect. It is not for this Court to say, whether the conduct of Reuben Haines was such as to raise a presumption of an ouster; the only question is, whether, circumstanced as he was, it was possible for him to oust Jonathan Lodge, so as to let in the act of limitations. And I have no doubt but it was. When the possession was delivered, and the purchase money all paid, there was no pretence for the re-entry of the vendor, or for his making a lease to a third person; nor is it possible to reconcile either of those actions, with the duty of a trustee. It would be a misconstruction of the act for the limitation of actions, to say, that because the vendor had once stood in the situation of a trustee, therefore he should stand so for ever, and lose all benefit of the act. I am, therefore, of opinion, that there is error in the charge of the Court of Common Pleas. The defendant insisted also at the trial, that Mrs. Lloyd,, the devisee of her former husband, Josiah Haines, was to be considered as a purchaser for a valuable consideration, without notice of the equitable title of Lodge, and therefore not to be affected by it. The Court of Common Pleas were of opinion, that she was not to be so considered. I am really at a loss what to say on this point; as no facts were found by the jury, and it does not appear to me, that the evidence inserted in the record, brings before us a case stated with sufficient accuracy to decide, whether Mrs. Lloyd was or was not a purchaser for a valuable consideration. In general, a devisee is not a purchaser for a valuable consideration. But Mrs. Lloyd claimed, not only as devisee, but by virtue of a deed from the executors of Josiah Haines; and Josiah Haines himself claimed, not only as devisee of his father Reuben, but under a deed from the other devisees of his father. I must decline giving any opinion on this point, as the evidence does not enable me to see my way with sufficient clearness. But having no doubt on the first point, I am of opinion, that the judgment should be reversed, and a venire facias de novo awarded.

Judgment reversed, and a venire facias de novo awarded.  