
    Armstrong’s Heirs vs. Campbell.
    Courts of equity, to the same extent as courts of law, are bound by the statute of limitations in all cases of bailments, loans, powers, deposites, &c. although express trusts, when there are concurrent remedies at law and in equity.
    At law the statute of limitations applies, and may be pleaded in every case, in which the species of action brought is embraced by the words of the statute; as “case,” in all its varieties.
    In trusts by implication, where the property of the complainant has been obtained by the defendant by fraud, or unlawful means, and where no action at law will lie, the statute of limitations will form a bar in equity. The only exception to the operation of the statute of limitations upon trusts, is where the trust is created by express contract, and the relation of trustee and cestui que trust exists in fact and not by implication.
    Where A by a covenant from B, was authorized to sell and dispose of the lands of B, according to his best skill and judgment, and to retain the one-third part of the moneys, property and consideration received for the lands, in compensation for his services, and A covenants to pay over to B the other two thirds of the moneys, property and consideration received for the land; this constitutes the relation of trustee and cestui que trust by express contract; and though there are concurrent remedies at law and equity, the statute of limitations of 1715, ch. 27, sec. 5, of three years, is no bar upon a bill filed for account.
    If a trustee, authorised to sell, enter into partnership with another, and contract to sell and convey the trust fund to the partnership of which he is a member, the contract is voidable, and can be set aside by the cestui que trust, though a fair price may be contracted for.
    If the trustee sell the trust estate, and is himself interested in the purchase, the cestui que trust is entitled to come into equity, and have the sale and purchase set aside.
    If the trust fund consist of land warrants, which the trustee transferred to another, and a transfer is made by that other to the trustee, upon the same consideration, or if agreed to be re-transferred at the time, between „the trustee and transferree, such transfer and re-transfer will not divest the interest of 'the cestui que trust in the lands appropriated by the warrants to the trustee, but will be considered mere formalities, and that the trustee ⅛01 ds the estate, with the trusts attached, as if no transfer and re-transfer had been made.
    If a trustee, created by deed or contract, in a case where the ces-tui que trust has no remedy at law to gain the possession, part with the possession of the trust estate to a third person, in whose favor time would operate against the cestui que trust, and regain the possession after the bar is formed, by purchase or descent, he will hold it encumbered with the trust. The possession is [not adverse but according to the trust.
    In such case, neither the act of limitations of 1715, ch. 27, sec. 2, nor the act of limitations of 1797, ch. 43, sec. 4, will bar the claim of the cestui que trust, or those claiming under him by descent or otherwise.
    Compound interest will never be allowed, except in very peculiar cases of hardship and default on the part of a trustee.
    The interest in land warrants, on the death of the ancestor, descends to his heirs.
    Bill filed in January 1823, states, that in May 1799, Martin Armstrong contracted with defendant to attend to his land business in East Tennessee, and to sell lands there situated, &c. upon an allowance of one-third. That under said agreement defendant sold large quantities of land in Martin Armstrong’s lifetime, and concealed the sale, under pretence that' they could not he identified. That in November 1806, defendant, with a view to defraud Martin Armstrong, sold a large quantity of warrants to James Trimble, for a pretended false consideration, with a secret contract that Trimble was to re-convey half to defendant, and pay a higher price for the residue. That in pursuance of said agreement, Trimble drew warrants, transferred one-half to defend-dant, and paid him for the other half at a high price, deducting therefrom divers large sums for expenses, which defendant, by his'contract with Martin Armstrong, was himself to have borne. That upon said warrants, defendant has entries and grants in his own name, and is in peaceable possession, and the enjoyment of the rents and profits, &c. That Martin Armstrong in his lifetime, and complainants since his death, have repeatedly call, ed on defendant for a settlement, which he as often avoided or refused. That at the time of said contract, and ever since till his death, Martin Armstrong was superannuated and incapable of doing business of importance, which was the reason of defendant’s conduct.
    That between 1802 and 1805, defendant, by fraud, procured conveyances from Martin Armstrong of one tract of 5000 acres, and another of 5760, which descended to him from John Armstrong, without any consideration, or upon one wholly inadequate; that he took pos-sdssion of them, has enjoyed them ever since, and claims them as his own.
    
      That by an agreement between General Robertson and Martin Armstrong, a certain judgment obtained by William T. Lewis against said Martin Armstrong, was satisfied by Robertson; after which, defendant procured an assignment of, and pretends that he purchased said lands under the assignment at sheriffs sale. That Martin Armstrong died in 1807.or 1808, intestate, and that no administration was ever taken out on his estate, and that complainants are his heirs at law.
    That defendant received large sums of money for lands and warrants before and since Martin Armstrong’s death, and utterly refuses to settle under various pre-tences.
    The prayer, after a number of interrogatories, is, that defendant may be compelled to account of and concerning the foregoing premises, and that the same may be referred to the clerk and master, to ascertain the various sums of money received by defendant for sales of land and land warrants, and also the value of land warrants at and since that period; and that defendant may be compelled to pay such sums as may be .found due; and that said defendant may be divested of all right or claim to the two tracts of land aforesaid, one of 5000 acres and the other of 5760 acres, respectively, and account for the rents and profits thereof; and that he may be divested of the legal title to all the lands entered or granted in his name, upon warrants drawn from grants of the said Martin Armstrong, and that the same may be vested in complainant, and for such other and further relief as the premises require and justify.
    The answer admits the agreement or contract entered into in May 1799, as set forth in the exhibit, which is a copy of the contract, and alleges, that the said Martin Armstrong himself, stated, that in pursuance of it, defendant made many and persevering efforts, to find and identify the lands of Martin Armstrong, embraced by said contract, which were ineffectual. That grants did not agree with entries, and could not be found; which state of things continued until the legislature authorised the issuing of certificates for lost land, soon after which defendant entered into an arrangement with James Trim-ble, in November 1806, by which he sold and transferred to Trimble a large amount of land claims, with the expectation and understanding that he (Trimble) would draw certificates for said land, they being well understood to be what was called lost lands. That said sale was for fifty cents per acre, upon a credit of one, two and three years, which is insisted to be a fair and full price. That Trimble being unwilling to purchase so largely, would not make the purchase, unless defendant would take one half of the purchase, or become responsible to Armstrong for one half, which defendant agreed to do; that said arrangement was fair, Iona fide, public, without imagination of fraud, and known to all who chose to inquire about it; and was soon after placed upon the records of the country. The quantity of land thus sold, was 10,150 acres, of which defendant was, by the contract under which he acted as Armstrong’s agent, in making the sale, entitled to one third; so that all he could possibly have gained by the trade with Trimble, upon the supposition that he intended to commit a fraud, was a right to purchase 1691 acres, at fifty ’cents an acre; an advantage, if any, certainly too small to inñuence -a man of ordinary honesty, property and standing in society. Answer also insists, that there was a provision in the contract, by which he was created Armstrong’s agent, and under which he acted in the sale to Trimble, by which he was allowed to act in the whole matter according to his “skill and judgment,” which defendant says, was purposely introduced to give him lati’tude as an agent, and prevent him from being restricted in the exercise of his functions, by all the rules of law and equity, applicable to agencies in general; and he insists that in the whole matter, he acted according to his best “skill and judgment.” Answer further states, that by the agreement between Trimble and defendant, Trimide was to dispose of such warrants as he thought fit, over and above his half, and account for one half the proceeds to defendant. Denies that the price to be given by Trimble, was lower, because certificates had not been obtained, as, in fact, most of the preliminary facts had been ascertained, and some steps taken towards procuring the certificates, before the agreement with Trimble; and that all subsequent expenses were to be borne by Trimble, the purchaser. States, that of the claims sold to Trimble, two certificates of 1000 acres each, were transferred to him by Trimble, that they might be located under a contract defendant had with Anderson and Strother; and they were located for defendant and said Trimble jointly, though solely in the name of defendant, defendant binding himself to convey to Trimble one half. That these warrants were laid on the land in Lincoln county, 270 acres of which were lost by interfering claims. That subsequently defendant and Trimble made a contract, by which Trimble gave his half of the two tracts in Lincoln, now amounting to 1730 acres, to defendant, (and some boot) for his defen-^anj,g Qf qqOO acres on Poplar creek in East Tennessee, not connected with the Armstrong claims at all, being bought of one Moore. That this trade was made in April 1809, before the 270 acres were lost, and long after the certificates of 1000 acres each, had been located in Lincoln, and the land granted; and that in said trade, the Lincoln land was estimated at but one dollar per acre, not in fact, a better price, all things considered, than fifty cents an acre for the warrant. Answer of the defendant further insists, that at all events, he had a right to consider the 1730 acres, or the certificates by virtue of which those tracts were entered, as part of his one third, which he was to get from Armstrong, under their contract. That grants issued in his name, for those lands in Lincoln in May 1808, that he took possession of it in November 1809, and has retained it ever since, which possession has been open, notorious and adverse, and which he insists is a bar to any claim for it, by virtue of the several acts for the limitation of actions.— The answer professes a willingness to account for, and pay over, all the moneys actually received; but insists, as the lands were sold in the lifetime of Martin Armstrong, that his administrator would,be the proper person to settle with, and that complainants have no right to bring this action, for the proceeds of the warrants sold; and that such also, was the opinion of Jenkin Whiteside, Esq. the attorney in fact of complainants, with whom, it will be seen, that various conferences were held by defendant upon the subject of a settlement of this business, from whom nothing was withheld, and who never could surmount the difficulty of the want of an administrator to account with. Answer ádmits that about 2500 acres of the warrants, other than those sold to Trimble, have been located in the Western District, and granted to Martin Armstrong’s heirs, of which he claims one third, after paying locator.
    
      As to the two tracts of land, of 5000 and 5760 acres, defendant says, the 5000 acre one, he bought of Martin Armstrong, and paid for fairly, took open, notorious and exclusive possession, under his deed in 1810, which he has continued ever since. That after the first purchase, which was in 1803, he caused an execution to he levied on it in 1807, founded upon a judgment against John Armstrong’s heirs, under which he bought it again for $1000, and claims the benefit of said purchase, &c.
    As to the 5760 acre tract, he says, that he bought that portion of the tract which lay in the Indian boundary, which was about two thirds, and claims no more; says the purchase was fair,in good faith, and as much given for it as it was worth under the circumstances. Insists on possession, lapse of time, statutes of limitation, as to both tracts. The claim set up in the hill as to those two tracts, it was said in argument, was not pressed in the court below, but expressly waived; it being well established, that Martin Armstrong was competent when the sales were made, and no unfairness being proved.
    The testimony upon the subject of the price of warrants during the years 1806, 7,8 and 9, is somewhat at variance.
    The proof in the cause establishes the sale of the warrants to Trimble, and conveyance to Campbell of part, and that the Lincoln lands were taken possession of by defendant, in 1807 and 1808, and that it has been continued ever since without interruption.
    The chancellor before whom this- cause was brought to final hearing, at May term 1829, decreed to the effect following: That defendant was constituted attorney in fact for Martin Armstrong on the 25th May 1799, to ascertain the lands and sell them, east of Cumberland Mountain, amounting to 27 or 28,000 acres, granted to Martin Armstrong and Geo. Dougherty jointly. That defendant covenanted to attend to the business as a lawyer, and as an attorney in fact to endeavor to ascertain and sell and dispose of it to the best of his power, and according to his skill and opinion. That in consideration of which, defendant was to receive one third part of Martin Armstrong’s part of the land. That in pursuance of said agreement, defendant made endeavors to ascertain the land, until November 1806, without success, except as to two tracts, which had been previously sold by Martin Armstrong. That on the 8th of November 1806, defendant sold to James Trimble, 10,150 acres, at fifty cents, upon a credit of one, two and three years, upon an understanding that defendant was to take back one half of the certificates procured, at the same price, or Trimble was to account to the defendant for one half of the produce of the certificates, and Trimble was to re-convey to Armstrong all the land for which certificates might not be drawn. That Trimble procured certificates to be issued to himself, upon all the land conveyed to him, except a thousand acres, which issued in the name of Martin Armstrong, and the devisees of George Dougherty; that some were sold by Trimble at one dollar per acre, and that some were transferred to defendant, and that it is unknown what further disposition was made of the rest. That defendant in transferring the land of Martin Armstrong to Trimble, took covenants payable to himself. That Martin Armstrong died in 1808, intestate, and complainants are' his heirs at law. That defendant procured grants to issue in his own name in May 1808, for the lands in Lincoln, 1730 acres, upon certificates transferred to him by Trimble, and has had peaceable and uninterrupted possession thereof, ever since the year 1808, and has taken the rents and profits thereof, exceptas to some which he has sold. That Martin Armstrong died much embarrassed, before he received any of the proceeds of said land claims, and that administration was not granted on his estate, until 1828. That defendant procured the issuing of other land warrants to Martin Armstrong, 950 acres of which were disposed of in Martín Armstrong’s lifetime, and the residue, 2520 acres, were located in the Western District, in the name of Armstrong’s heirs. That defendant had paid some money to complainants, and that there was an unsettled account, <&c. and that it did not appear that defendant had informed Martin Armstrong, or complainants, of the circumstances of the sale to Trimble. The court did thereupon declare, that complainants, as heirs of Martin Armstrong, were entitled to two thirds of the 1730 acres in Lincoln, and the rents and profits thereof, received by defendant; and two thirds of the other warrants, which is 5913i acres, at one dollar per acre, with interest calculated at annual rests from the 1st of August 1809; and also, the two thirds of the land in the Western District, and that defendant pay the locator’s part out of his one third.
    At October term 1829, defendant filed a petition for a rehearing, for the following reasons: 1st. Upon the principles assumed in the decree, Trimble’s representatives were necessary parties. 2d. That the decree both affirms and disaffirms the salé made to Trimble. 3d. The decree should have confirmed the sale of. one half, and upon the principles assumed, defendant could then only be charged at fifty cents on one sixth. 4th. As the bill prayed for a reference to the clerk and master to fix the price of the warrants, the reference should have been made, and the price not settled by the court in the first instance, upon the testimony taken. 5th. the testimony did not authorize the fixing the price of the warrants at one dollar. 6th. No part of the 1730 acres should have been given to the complainants, as the certificates upon, which the land was entered never did belong to Martin Armstrong, or his heirs, and complainants were barred by the statute of limitations. 7th. If any part of said land were allowed complainants, defendant should have been paid for locating them. 8th. Defendant should not have been charged with the sole expense of locating the Western District lands. 9th. Defendant should not have been charged with interest on the price of the grants, as there was no person to whom he could make payment. 10th. It was still worse to make him pay compound interest. 11th. Decree is erroneous in directing a personal fund to be paid to the heirs. 12th. Bill is multifarious, containing matter of at least five distinct bills.
    The rehearing was granted, and took place at the same term. Upon the rehearing, the court declared, that in the sale to Trimble, there was no intention to defraud; but that complainants as heirs of Martin Arm. strong, are entitled to have the sale set aside; and to an account of the price for which the certificates were subsequently sold, and the profit or advantage made therefrom by defendant or Trimble, and interest thereon; and that if it did not appear at what price they were sold, complainants were entitled to the highest selling price in 1806|7, 8 or 9, with simple interest from first of August 1809. That defendant was protected by the statute of limitations in his claims, to the 1730 acres in Lincoln, but that complainants were entitled to two thirds of four fifths of its value, on the first day of July 1817, the time when the seven years expired, with interest thereon; and that defendant was entitled to two thirds of four fifths of the land in the Western District} one fifth being reserved for the locator.
    From this decree, defendant Campbell appealed to this court.
    
      Gibbs and F. B. Fogg, for complainants.
    1. Complainants insist that the transaction with Trimble will be considered as a nullity, upon the principle that will surely not be disputed at this day, that an agent to sell, cannot be interested in the purchase. 2 Bro. Ch. Reports, 400, Fox vs. M’Queth. 2 John. Ch, Rep. 252, Deview vs.Farminy. 10 Ves. 427, Rocdall vs. Ennington, 8 Wheaton, 440, Wormly vs. Wormly. 1 Maddox Ch. 110. 2 Mcrival, 207, Dawns vs. Grogobrook. 6 Yes. 631, Lester vs. Lester. 13 Yes. 60, Sanderson vs. Walker. 10 Yes. 381, Ex parte Bennett. 6 Yes. 622, Ex parte, Hughes. 6 Yes. 625, Ex parte, Lacy. 2 Eden, 280. 1 Sch. and Lefroy, 353, Kenedy vs. Dorley. 1 Jacobs, 607. 3 Dow, 116.
    2d. The defendant standing in the situation of trustee, and dealing with his principal’s funds for speculation complainants have the right to whatever profit was made, if any; and if any of the property remains, to that they are entitled, no matter how the form may be altered. In short, an agent or trustee cannot be heard to claim any advantage made out of his principal’s property. 5 Yes. 678. 6 Yes. 617. 6 Yes. 625. 3 Yes. 740. 13 Yes. 601. 8 Ves. 31-0. 4 John. Ch. 118. 3 Binny, 54. 2 John. Ch. Rep. 252. 2 Jacob and Walker, 190. Jeremy’s Eq. 141-2. 1 Sch. and Lefroy, 352, Griffin vs. Griffin. 2 Ball and Beaty, 195, Winslow vs. Ligh. 6 Maddox’s Rep. 235, Byshall vs. Bradford. 1 Cox’s Cases, 35.
    3d. Considering them as partners in the property, the same consequence would result. 17 Yes. 298, Fethers-tonough vs. Fenerick. Jeremy’s Equity Jur. 515. 1 Jacob’s Rep. 284, Brown vs. Derussett. 2 RusselPs Rep. 62, Kenliaw vs. Matthew. 15 Ves. 218,226, 228, Cras-kay vs. Collins. 5 Ves. 539, Iiawood vs. Douglass. 1 P. Williams, 141.
    4th. The complainants insist, that the defendant was guilty of a gross breach of trust in selling these warrants to himself for one half the price that could have been procured for them with proper care and diligence.
    The evidence of Houston, Lea, Haley, Brown, Thomas, proves, that warrants at Knoxville about that period were worth $1,00 per acre. W. P. Anderson, defendant’s witness, proves, that Trimble sold 1000 acres of these warrants for $1,00 per acre. Goodlow, Hall, Tayl°r and Greer, show'the same thing; and Campbell’s own showing in his answer demonstrates that he was buying'to sell again for profit. He took in Trimble as a partner in the purchase, and persuaded him to jo in, not to locate, but to speculate upon, &c. He kept the dealings about the warrants a secret, &c.
    If an agent selects an improper time to sell, he is guilty of a breach of trust. See 2 John. Ch. Rep. Hart vs. Yanrensalear et al. 3 Maddox’s Rep. 491, Milling-ton vs. Mulgrove.
    Here was an agent and partner, an eminent lawyer; he was intrusted with the management of the property; an empire of vacant and valuable land pledged to the satisfaction of land warrants, to be opened the next spring or summer; a law authorizing the drawing of these warrants, and he sells to himself and his friend, at fifty cents, and alleges that as these claims had not gone through the commissioner’s hands, that this was a fair price for them thus situated, &c. And his partner sells at one dollar, a few months after, the same warrants. We see Campbell securing 1730 acres of land, which, he acknowledges in the record, he sold a great part of at six or seven dollars per acre; the other warrants laid in the district upon land worth at least three dollars. Does not this prove at least a gross breach of trust? See Jeremy’s Eq. Jur. 156: 2 Cox, 113, Forbes vs. Ross.
    The consequence of a breach of trust, even by mistake, is that the court will place the cestui que trust as near as possible in the situation he otherwise would have been. Jeremy’s Eq. Jur. 153. 16 Ves.283, Woody vs. Walters. 1 Yes. and Beams, 492.
    The court would therefore under these circumstances concur, not only with the three chancellors, who have expressed their decision that one dollar per acre was the selling price of land warrants, and that defendant should account therefor with interest; but we insist that complainants are entitled to interest at annual rests. See Jeremy’s Eq. Jr. 5-14: 11 Yes. 92,Hupboard vs. Bcham: 1 Maddox’s Rep. 269: 4 Dow, 209, Stack-pole vs. Stackpole: 1 Condensed Rep. 139, Griffith vs. Heaton: 2 Atkins, 533, Gould vs. Tankerd: 2 Atkins? 409, Robertson vs. Cawnenly: 16Mass. Rep. 228, Bun-ell vs. Joy: 1 John. Ch. Rep. 620, Schoffellen vs. Hunt: 1 Bro. Ch. Ca. 359, Newton vs. Bennett: 1 Bro. Ch. Ca. 384, Treves vs. Townsend: 6 Bro. Par. Ca.. 326, Lea-vealr vs. Allen: 12 Yes. 126, Dunford vs. Dunford: 13 Ves. 590, 409, Raphail vs. Benhaw: 5 John. Ch. Rep. 497, Gunter vs. Topir: 2 John. Ch. Rep. 209, Daugh-ton vs. Lynch.
    These last cases are upon the principle that an agent or trustee deals upon the trust property, and refuses to disclose the -profits.
    Agents are bound to keep regular accounts of their transactions, and to be ready at all times, to show the state of their business. Jeremy, 513. 5 Yes. 91. 8 Yes. 369. 14 Ves. 510. 2 Jacob and Walker, 140.
    And if an agent by his own acts renders it impossible to ascertain what his principal is entitled to, the court will charge him with the whole, or highest estimate. Here the defendant is unable or unwilling to give an account of what the warrants produced, and should be charged with the highfest price and highest rate of interest, to come as near justice as possible. 8 Ves. 369, White vs. Lady Lincoln. 15 Yes. 441, Lup-ton vs. White. 1 Strange, 505, Amung vs. Delumer. 8 Ves. 46, Chedworth vs. Edwards.
    Agents are under obligations to give their principals correct information about their business. 3 Swanson, 58, Walker vs. Simonds; and imperfect information is equivalent to concealment, lb. 73.
    The defendant relies upon the statute of limitations in relation to the lands in Lincoln, 1730 acres. To this the complainants reply: 1st. This is an express trust by contract, which is manifest from the contract of 1799, (see Exhibit A) and contains whatever was necessary to be done as attorney in fact and as attorney at law for the interest of Armstrong, touching said property, to be done by defendant.
    2d. It was so construed and acted upon by the defendant in drawing the warrants, and he cannot be heard now to say, I have committed a spoliation upon the property of my principal, and had no authority for what I did, and therefore, can plead the statute as to this; but as to the lands in the District, and as to one third of the warrants, which were sold and unaccounted for, I claim my third under the contract.
    No limitation runs against an express trust between trustee and cestui que trust. See 17 Ves. 96, Beekford vs. Wade: 1 Cox, 149: Jeremy’s Eq. Jur. 9, 26: 4 Des. 54: 1 Ventris, 321: 3 Mad. Rep. 149: 1 Bro. Ch. Ca. 554: 1 Jacob and Walker, 177: 2 Mer. 360, Cholmon-dely vs. Clinton: 8 East, 743, Keene vs. Durd: 1 John. Ch. Rep. 190, 384: Angel on Lim. 133: 4 Price, 107, Melvy vs. Cawley.
    In order to get clear of the above undisputed question, the defendant insists, he committed a gross fraud by seizing upon these warrants without any authority, and appropriated them to his own use. Suppose this could for a moment be heard, what would the court then do? The court would then, according to the rules of a court of equity, say, you shall account at the highest price for the warrants, without compensation for your services and expences, with the highest rate of interest known to a court of chancery, for this is the rate applied to a fraudulent Spoliator. Pierce’s heirs vs. Davis, supreme court at Sparta.
    The court cannot take him as trustee by agreement as to part of the transaction, and a trustee by fraud as to the balance.
    The defendant cannot by his own act divest himself of his character of trustee. Jeremy’s Eq. Jur. 142. 1 Jacob and Walker, G8.
    Fine and non-claim will not operate in confirmation of title against a trustee. 1 Sell, and Lefroy, 397, Ken-edy vs. Daley. 1 Ver. 60, 84, 144, Bavey vs. Smith. 2 Atkins, 631.
    The complainants insist, that they were partners and joint tenants in equity of the property, and the possession of Campbell, in equity, was the possession of Armstrong, just as much as it would have been if the legal estate had been according to their respective interests. Angel on Limitations, 136. Jeremy’s Equity Jur. 515, speaking of partnership property, says, “their respective rights do not apply to individual proportions of each specific article; but they have community of interests until the affairs are wound up, and are respectively entitled to an account, and to have the property disposed of to the best advantage, and divided. It is a principle that partners are under an implied obligation, to use the joint property for the benefit of all to whom it may belong.” These principles are supported by 15 Ves. 226, Cuehay vs. Collins. 2 Ves. and Beams, 329. 4 Maddox, 143, Harrison vs. Asmelage. 1 Swan R. 52, Russel vs. Amsbuck.
    There was property confided to the management of defendant in 1799. In 1807 he drew warrants to the amount of 10,600 acres; some were sold, some located in Middle Tennessee, and sonic others, amounting ¿o 2,600 acres more, held up until lately and entered in the District. The business of the trust in progress and not finished, the concern not wound up, and the agent, partner and trustee gave no information to the cestui que' trust of their business until the bill filed; and surely he cannot plead the statute of limitations successfully. In fact, the contract was that Armstrong was to convey one-third upon settlement, after all was done. See Angel on Lim. 133.
    
      The proof of the possession is not inconsistent with the relation of the parties, or inconsistent with the joint right of the parties, and the court will presume the possession was held according to honesty and the rights of the other parties. See Angel on Lim. 82, 92: 2 Ball and Beatty, 55 a: 3 Mau. and Selwyn, 270.
    The strictest proof would be required, that possession was adverse to the complainant’s rights. Angel, 83.
    Mere sole occupation by one joint tenant, could not avoid his contract, or create an adverse possession. See Angel on Lim. 91, 94, 95: 5 Wheat. 116.
    3d. We reply, that the statute of limitations does not run in favor of a title purely cognizable in a court of equity; and it is only upon a principle of policy, courts of equity act for the repose of society upon analagous principles. See 1 Jacob and Walker, 51: 1 Sch. and Lefroy, 413, and Baird vs. Hopkins, (.'07: 2 Jacob and Walker, 174, 634.
    4. Whether the possession, such as it was, commenced before August 1898, docs not appear from the evidence. O. Williams says, “the tenants told him they were going to take a lease in that year, hut at what time is not stated. Armstrong died in the summer of that year, and if the right was cast onthefeme covert before possession, as to that portion the statute would not run.
    Although in his answer, defendant says he informed Armstrong on his deathbed of the sale, he says he informed him also, that there was no money collected. Did he inform him that he was a partner in the purchase, and that he owed part of the money, &c.? No. And not giv ing the whole, or correct information, is equivalent to concealment. 3 Swanson, 73.
    One trustee is liable alone to complainants. Jeremy’s Eq. Jur. 158. 3 Swanson, 74, Walker vs. Simons. 11 Yes. 318, Price vs. Stokes. 12 Yes. 402, Pate vs. Scoles.
    The complainants also insist, that the last decree was wrong in allowing the locator’s interest out of the Lin-coin lands, and also the lands of the Western District.
    By the contract of 1799, Campbell was to do every thing necessary to be done, so that Armstrong could enjoy the land. When that was done, Armstrong was to convey one third, and as sales were made, one third upon settlement of the proceeds was to be retained; and this large reward surely ought not to be given this agent, who it seems, was otherwise engaged, and pay besides another large reward to his agents, that he employed to do this business for him. Is it because this agent has acted so faithfully and magnanimously towards his principal, and has disclosed his profits and dealings, about this trust property, so promptly and satisfactorily, that he is thus to be entitled to this bounty? It is believed not, from any thing that this record shows.
    If he had drawn the warrants in Armstrong’s name, as was his duty, and handed over two thirds of them, complainants might have located them without expense; might have sold them for cash, perhaps exchanged them for Hardin’s entry mentioned in the record, as defendant did by his agent, and realized ‡50,000 out of 5000 acres of those warrants.
    The conveyances of the two 5000 acre tracts, the one in Maury and the other in Giles county, should be set aside.
    1. Because Campbell was the attorney at law generally, and attorney in fact to raise money, sell lands, &c. in East Tennessee, and his legal adviser, &c. They were offered to him as a fee to defend suits in relation to his lands in West Tennessee, and this tract particularly. See 4 Dessauseure’s Rep. 704, Ballue vs. Haskell: 1 Simons and Stuart, 502, Roberts vs. Harvey: 1 Jacob and Walker, 406: 1 Cox’s Ca. 112, Wills vs. Middleton: 2 Atkins, 296, Sanderson vs. Glass: 2 Yes. Sen’r. 259, Oldham vs. Hands; 18 Yes. 120, Wood vs. Downs.
    
      2. Upon the imbecility of mind of Armstrong. See Overton’s and Lytle’s deposition: 2 P. Williams, 203, Clerkson vs. Hanwey: 2 Cox, 333, Fox vs. M’Greath: 3 P. Williams, 129, Osmond vs. Felscay, et. al.: 3 Bro. Ch. Ca. 41: Jeremy’s Eq. Jur. 392.
    3. Upon the ground of great pecuniary embarrassments. See Lytle’s, Robertson’s and M’Nairy’s depositions, and defendant’s answer. In fact he had not the means to live upon. See cases Temp. Talbot, 38, Boson-queth vs. Dowaker: cases Temp. Talbot, 111, Pruop vs. Harris: 2 Atkins, 330, Thornhill vs. Evans: 3 Bro. Ch. Ca. 156, Hains vs. Wyett: 14 Yes. 215, Puckett vs. Lo-zin: 2 Sch. and Lefroy, 31, Beasley M’Gweth: 2 Ball and Beatty, 37, Fitzgerald vs. Rawsford: 3 Maddox’s Rep. 417, Wood vs. Ambey: 3 Maddox’s Rep. 191, Giffith vs. Robins.
    The price at which the clerk and chancellor fixed the Lincoln lands, under said decree, is objected to. See depositions of Green, Patten, Brig, and various conveyors of other lands about that period. See 1 Yes. Jr. 43, that a trustee cannot act for himself and cestui que trust at pleasure.
    Washington, for defendant.
    It is objected, that the sale to Trimble, being a violation of Campbell’s agency, was, in law, fraudulent and void, and therefore did not change the right of property. That is no answer, however, to the argument in support of the demurrer, that the act of the commissioners, in adjudging the certificates to Trimble, was conclusive.
    Conceding the position for the sake of argument, that Campbell had no right to make a sale to Trimble, by which he acquired an interest for himself, still the demurrer ought to have been supported. The object of the bill is, not to disaffirm the sale, but to affirm it, and go for the proceeds.
    If this bill by the heirs, can be supported, it would follow that they could pursue the warrants in the hands of a purchaser under Trimble, or the land secured by them, no matter how many intermediate ' assignments of the warrants had taken place. But could that consequence be tolerated, as against the purchaser of the warrant, or as against him who had entered it upon other land and obtained a grant? What, after the sale of the land originally granted by the attorney in fact of the ancestor in his life time; after the sentence of the commissioners, adjudging the warrants to belong to Trimble, the purchaser, upon the very ground, and no other, of his being the owner of the land, and after that land had undergone a double transformation, first into the warrants and then again into the lands, would the court consider it as the selfsame land which the defendant sold, and that it descended as an inheritance to the heirs? It is believed not.
    Upon the supposition that Campbell is liable to account with the plaintiff for the proceeds of those land certificates, and that the proper parties are before the court, it becomes material to enquire upon what principles he should account.
    Was there a fraud committed in the sale of said certificates to Trimble? The decree which is appealed from, expressly exonerates the defendant from any intention to commit a fraud in said transaction. But it is believed by defendant’s counsel, that when the circumstances of this case are fully understood, no one who takes a candid and unprejudiced view of it, will feel himself authorized to say, that Armstrong was either defrauded or injured, but will be impelled to the conclusion, that had he lived he would have been materially benefitted; and that had his heirs brought the defendant to a settlement within reasonable time, or had not a mutual mistake (if it be one) prevailed between them and defendant, as to who the party to be accounted with was, they would have been benefitted to the same extent. The injury, or rather disadvantage that has occurred here, has been occasioned solely by the delay or lapse of time, which has taken place, not through the fault of the defendant, and therefore the consequences of it ought not to be visited upon him. It is a misfortune to be sure, but it ought to be borne by him who lay by and refrained from asserting his rights, which he now claims to have had since the death of his ancestor in 1808, and who, by not asserting them, has caused all the inconvenience complained of.
    In deciding whether fifty cents an acre was, or was not a fair price for warrants in 1806, let it also be recollected, that the commodity to be priced was a peculiar one; not one, every acre of which would be of the same value and price, as every other acre of warrants; that in this respect, warrants diifer from cotton, tobacco, or any other staple or exchangeable commodity. One pound of cotton of the same quality is equal to another. Cotton is so desirable a commodity too, that the retail and wholesale price is the same. Cotton also, is susceptible of a regulated price; that is, the price will always depend upon the demand and consumption. That regulated, established, or fixed price, can be ascertained at any distance of time; because the dealers in this article form an important class of society, and the dealing in it in various ways, forms a prominent part of the business of life; and there is written testimony to be had, recorded at the time of the actual price, leaving nothing to conjecture or the decay of memory, twenty or thirty years after-wards.
    The circumstances under which these claims were sold, and their amount, it may be supposed, would have made some difference in the market, between their price and that of actual warrants; yet, the price of fifty cents is obtained for the whole, which is believed from the testimony, to be a fair current average market price.
    In regard to warrants, they can have no regulated or fixed price; or if they can,it depends upon the combination of a greater number of minute circumstances, so casual or fluctuating in themselves, as not to suffer the price to be stationary for any length of time. There is no written source to which application can be -made to ascertain the price of warrants at any given time. The extent of the demand could not be ascertained; for, although the limits of the territory then lately acquired, were known, yet it was not known how many acres were contained in those limits, nor what proportion of it was arable and fit to be entered, nor what proportion, although fit to be entered, was worth giving this or that price for a warrant to enter it with; nor what proportion was covered by old claims already entered; nor what amount of warrants there was in circulation; nor what were the particular circumstances of any purchasér or seller, in relation to the necessities of one for a warrant, or the other to sell; nor what was the relative proportion of value, between a small and a large warrant; nor what was the excitement of land speculation, after the formation of the treaty, both as to degree and extent; whether it got higher by regular and slow degrees; 'whether it sometimes abated and fluctuated, or whether it advanced steadily and rapidly to its height; nor what proportion of the community, in relation to the quantity of warrants in circulation, was affected by that excite, ment; nor whether a sale made at any particular stage of it, was a good or a bad sale, because the excitement afterwards became higher or fell lower. These are some of the ten thousand circumstances that might be enumerated to show, how diffident the court ought to be of the testimony on both sides, relative to the price of warrants, after this lapse of time. The infer* ence from the whole is, that the maxim vigilantibus non dormientibus seroit lex, ought to be applied to the plaintiffs. As to the 1692 acres, there was gain to himself; I do not mean profit; and that gain was fairly and honestly acquired; fairly and honestly, because an adequate price was given, and because the motive was to promote the sale of the whole, which was a desirable object with Armstrong, and which object was thus obtained. Now, how is he to be dealt with for this? If this is the only part of his conduct to be complained of, why extend the correction beyond the grievance? A court of equity does not punish; it merely indemnifies. If, therefore, Campbell was bcnefitted, and Armstrong injured by the illegal acquirement of this 1692 acres, take from the former the benefit, and redress the injury of thedatter. How? If the property remains in specie, restore it to Armstrong, and compensation for the use of it. If it does not remain in specie, and its proceeds can be traced, give him them, if he elect to have them, or if not, give him the value at the time of the conversion, and interest. This is according to the course of a court of equity; and so far it confines itself to the measure of indemnity. But where the property neither remains in specie, nor the proceeds can be traced; and the impossibility of tracing the proceeds does not arise from the contumacy, concealment, or wilful default of the wrongdoer, what course is then to be adopted? The court is still to confine itself to the measure of indemnity; and in adjusting that measure, the court will be only careful to make it so liberal, as to guard against loss to the injured party.
    It is believed, therefore, that the principle of the decree, respecting the defendant’s accountability for the warrants, is not only erroneous, but the clerk and master, in taking the account, has misconstrued that decree, so as to make it still more oppressive. The decree directed, that the defendant should be charged with the warrants at the highest selling price during the years 1807, 8 and ,9. The decree, even upon that principle, should have had reference to what was the highest selling price in either of those years, after the warrants had issued; because all the testimony shows a material difference in the price of warrants before and after the entry office opened. A transcript from the commissioner’s office was laid before the master, showing that more than' half these warrants were not issued until after the opening the entry office, when the price 'had fallen. But the master said he felt himself bound by the decree, to charge the defendant with the highest price of warrants in either of those years, whether the warrants had then issued or not; thereby making him liable for a price which did not exist when the. warrant came into existence, and which, of course, never could have been obtained for it. The clerk and master also took as his criterion, the highest price at which any particular sale was made, without reference to that being a general selling price. The highest selling price, or the lowest selling price, or the average selling price, does not mean the price at which any individual warrant may have been sold, either very high or very low, or neither one nor the other; but it implies that there must have been a class of sales at those prices, and that the quantity of sales should have been more according to those prices than any other. ■ The defendant’s counsel cannot perceive for what reason it was, that the chancellor in his decree, directed the clerk and master to range through the years 1807, 8 and 9, in search of the highest price of warrants, instead of confining him to the 8th of November, 1806, the time when the sale was made to Trimble, and the conversion took place, if it was not with a view to the time of the actual issuance of the warrants and the price to be affixed to them then. The > chancellor certainly never could have contemplated, that where a warrant issued in 1809, two years after the entry ofEce'had opened, which obviously must have reduced the price of warrants, and which did, according to the testimony, that the defendant was to be charged for that amount, the price which similar warrants bore in 1807, before the entry office opened, and when the avidity for land speculation was at its height.
    3. The decree concerning these Lincoln lands cannot be supported upon principles of law. They were entered ' by virtue of two certificates of one thousand acres each, which issued in the names of J ames Trimble and the devises of George Dougherty j ointly. Dougherty’s interest in them was transferred to Trimble, by Campbell, as the agent of Dougherty, he himself having an interest, under his agency, of one-fourth of Dougherty’s part. They were transferred to Trimble under the contract of 1806, between him and Campbell, pne-half being Trim-ble’s exclusively, and the other half being Campbell’s. But the transfer was made to Trimble alone, in order to effect a division between Armstrong and Dougherty.— These certificates were subsequently transferred by Trimble to Campbell, in order that the latter might have them located by Anderson and Strother, under a contract which he had with them for locating. But it was understood that although they were located in Campbell’s name, one half still belonged to Trimble; and subsequently to the location of them, and the issuing of the grant for them, Trimble conveyed his interest in the lands so secured by them to Campbell, at the price of one dollar per acre, in an exchange of some other lands, no way connected with the Armstrong’s claims. Anderson and Strother’s customary charge for locating, was one-third.
    Grants issued upon these two certificates to Campbell, in May 1808, who took possession of the lands covered by the grants, in that year, and has continued it ever since, exercising exclusive ownership over them, and claiming them adversely to the whole world. Since that time two hundred and seventy acres of these lands have been lost by a better interfering title, reducing the quantity to 1730 acres.
    In addition to the general grounds of defence, set up to the whole bill, the different acts for the limitation of actions are pleaded or insisted on, to that part of the bill relating to the Lincoln lands.
    The chancellor decided, that the defendant was protected in his title to the lands themselves; but that he was liable to the complainants for the value of those lands in 1815, the time when the statute of limitations completed its operations, and to interest upon their value up to the date of the decree.
    This part of the decree is not warranted by any principle of justice or law, or by any precedent in the whole world.'
    1st. What is the principle of the decree in other respects? That the complainants are entitled to the warrants, if they remain in specie; or if they have been converted, to their specific proceeds, if they can be traced; or if they cannot be traced, to the highest price of warrants, as a substitute. The certificates located upon these Lincoln lands have been converted, and their specific proceeds can be traced, which are the lands themselves. The defendant, by the laws of the country, is protected in the enjoyment of these specific proceeds, and declared to have an indefeasible title to them.'— Then, I ask, upon what principle it is, that a substitute is given to the complainants? The proceeds are the substitute for the warrant, where that has been converted. Where the proceeds cannot be traced, or that substitute cannot be had, another substitute is provided, to wit, the highest price of the warrant. But a substitute necessarily implies something other, in lieu of which the ■substitute is made. That thing, in this case, is the Lincoln land, or the specific proceeds of these two certificates, which are declared by law to belong to Campbell.— Then if you furnish a substitute in this case, you do it without any other thing belonging to complainants upon which to bottom it.
    2d. What is the substitute made by the decree? The value of the land at the time it first became the property of Campbell. Upon what .principle ? Why, upon the principle surely, and no other, that at that point of time Campbell was guilty of converting so much of the property of Armstrong to his use. ButjWas it (the land) at that time the property of Armstrong? The warrants when issued, were the property of Armstrong; the land was the proceeds of two of these warrants. Now the the principle of equity is, that when a trustee converts property, which is the subject of the trust, into any thing else, the cestui que trust may either go for the proceeds, or he may go for the value of the property converted, at his election. But suppose he does not make that election, until after he is barred by lapse of time from going for the proceeds, and in consequence thereof, these proceeds have become the absolute property of the trustee; can the trustee, in such a case, be said to have converted the property of the cestui que trust, by claiming these proceeds? Certainly not, upon any sound principle whatever. The complainants once had a right to acquire a property in these proceeds, but they never exercised that right, and neglected it until an opposing right originated, and became consummated into property, whereby the complainants lost their mere right, and from thenceforward never could acquire the property; probably they never intended to assert it, until the filing of this bill, but to rely upon the defendant’s liability for the warrants, and for these he has offered to account. An election once made cannot be altered, neither can a waiver of an election be revoked; and what can be a stronger implied waiver of the right to go for these proceeds, than to lay by fifteen years, as these complainants did, after the defendant’s grant was on record, and after he was in possession of the proceeds, exercising every act of exclusive ownership, and until the statute of limitations had given him as absolute a property in the proceeds as could be acquired?
    3d. Although a trustee cannot, in general, set up his possession in opposition to his cestui que trust, or plead the statute of limitations against him, so long as the relation of trustee and cestui que trust subsists between them; yet if that relation is once dissolved, or if the trustee gives to the cestui que trust notice that he intends to hold in opposition to him, the statute of limitations will run. It is upon this principle of an adverse possession, of which notice was given to Armstrong by the registration of Campbell’s grant, and of the existence of the entry of record in his name, that the statute of limitations was held to give Campbell a complete title to the land. It follows therefore, that the statute of limitations is a complete bar to an account for the warrants in this case, both those upon which the Lincoln land is founded, as well as all the residue; and that had not Campbell voluntarily offered to account, respecting the warrants, the complainants must have been turned out. of court without recovering anything.
    4. Statutes of limitations are made for the benefit of defendants, and to protect titles somewhat defective, where there has been the requisite possession. Although not ^applicable in terms to courts of equity, they are nevertheless bound by them, and apply them by analogy to their operation at law. That is, to protect equitable titles that are not altogether perfect, or to protect legal titles against stale equities. Campbell’s legal title to the Lincoln lands is perfect, but it requires protection against an equity which seeks to overthrow it. What is that equity? The claim setup to the warrants, by which it was entered. In applying the statute in such a case, does not the court pass directly upon the legal title as affected by the equity, and also upon the equity as merged by it? And if so, is it not the equity that is barred? That it is, seems to follow as a corollary from the preceding proposition. Then if the equity is barred, which is the claim to the warrant, in the name of common sense, what is there to found this part of the decree upon?
    It is a most novel application of the statute of limitations, which gives to a defendant the benefit of that statute, and in the same breath either compels him to relinquish that benefit, or to pay for it a price commensurate with the benefit. Such a construction is inconsistent with the meaning of the legislature, and subversive of the policy of the statute. It enables the plaintiff to lay by and speculate upon events; and according as these events turn out, or suit him, either to go for what he might at all times have gotten, or to enrich him-felf at the expense of the defendant, by going for the value of the new species into which his property has been converted, when improved and enhanced by the labor of another.
    The consequence of considering warrants Nos. 8 and 10 as embraced by the part of the pleadings which relates to warrants sold and unaccounted for, has just been pointed out. I will now advert to the consequence, so far as the plea of limitations is concerned, of considering these warrants as embraced, or in issue, by that part of the pleadings which relates to the Lincoln lands. The allegation is, that these warrants have been entered in the defendant’s own name, and grants issued thereon to defendant, who claims the land covered by the same as his own; or at least, the allegation is, that some of the warrants were so disposed of, and these two are the only ones that are shown or admitted to have been entered for defendant; and therefore it is the same as if there was an express allegation to that effect, respecting those identical warrants. The warrants have become merged in the entry, and constitute a part of the title to the land. The plaintiff asks for a divestiture of title for the land, ■or for such other decree as is consistent with the state and condition of the warrants, as thus merged in the entry, and constituting a necessary part of the solidum of title to the land. The defendant pleads all the different acts of the legislature for the limitation of actions; and under the operation of this plea, which is a double one — that is, not only barring the plaintiffs’ remedy, but conferring a title on the defendant — the law adjudges to the defendant a full and absolute property. Now, does not such adjudication necessarily carry with it the warrants, and all other incidents of title to the land?— That it does, is believed to be wholly incontrovertible. And if the plaintiff’s remedy arising from the warrants is barred, is it consistent with that position, still to give him a remedy on account of the warrants? Certainly not, by any reason, rule of law, or logic.
    I will now proceed to show, from the language and evident sense of the pleadings, that these warrants Nos. 8 and 10, and all rights accruing under them, no matter under what aspect of the bill they are embraced, are barred by the statutes of limitations, as insisted on in the answer. The language is, “The respondent believing himself entitled, &c. to certificates 8 and 10, &c. and therefore that he was authorized to dispose of them in such manner, for his own benefit, as he might think proper, without being bound, either in law or equity, to account to said Martin or his heirs, respecting the manner in which they were disposed of, &c. He insists against the right of the said complainants to call on him to give such account, and denies that he is bound in any way to account to them respecting said certificates, as^to the manner in which they were disposed of,” &c. Then going on in reciting his possession of the lands, defendant further says, “respondent therefore conceives himself entitled to the benefit of the several acts of assembly for the limitation of actions, and prays for the benefit of the same; insists that the pretended claim of complainants for said two tracts of land, if any they ever had, which he denies, has become stale, and as he is advised, is so lost and barred by the lapse of time, that this honorable court will not make any decree against this defendant in relation thereto.” W* are then to consider all the acts of limitation which can have a. bearing upon the subject of these warrants 8 and 10, as formally pleaded;, and all the pleas which could be pleaded under them, as formally drawn out. The answer denies the “liability” of defendant to “account,” either in “law” or “equity,” and the right of complainants to call on him to give an “account,” or that he is bound in “any way” to “account” to them “respecting said certificates, or the manner in which they were disposed of;’-’ and that the claim to said tracts of land is so lost andbarred by lapse of time, that the court ought not to make any decree in relation thereto.*’ One of these acts relied on, 1715, ch. 27, sec. 5, relates expressly to actions of account, and bars them after three years. Now suppose this was an action at law, of account, for the proceeds of these warrants Nos. 8 and 10, who will deny that such action would be barred? It is believed to be undeniable, that it would. Applying the statute to an analagous action in equity, what is there to prevent the bar also ? Clearly nothing. The court has no authority to exclude the act from its operation in the case, as the several acts for the limitations of actions are all pleaded, and must all have their due weight. By the same authority that you could deny to the defendant the benefit of this act, you could that of any of the other acts, and so, by striking one at a time, you might fritter away the plea entirely, which is a consequence not to be endured. By protecting the defendant in the enjoyment of the lands, and subjecting him to account for the value of the warrants with which it was entered, yon necessarily affix to the action a personal character, by analogy, which makes the act above quoted apply to it.
   Catron, Ch. J.

delivered the opinion of the court.

The first question to be considered in this case, is, whether the complainants are barred in part or in whole by the statute of limitations. This point is one in which society is greatly interested. ■ To what description of trusts attempted to be enforced in a court of equity, the statute of limitations does apply, has been a matter of frequent difficulty from the earliest history of the British court of chancery.

The subject has been considered of in modern times-by judges of great learning and ability, but in a manner too diffuse for the convenience of ordinary readers. The court will attempt to extract from the adjudicated cases the principles governing the present cause, without giving a synopsis of all the adjudications on the subject, a practice but too apt to produce confusion even in a regular treatise.

Courts of equity, equally with courts of law, are bound by the statutes of limitation, in all the varieties of bail-ments, loans, pawns, deposites, &c. although express trusts, where there are convenient remedies in cases at law, or by bill in equity. The leading cases that have settled this principle are, Leroy vs. Leroy, Prec. in Ch. 518; Street vs. Millish, 2 Atk. 610; Howender vs. Annesley, 2 Sch. and Lefroy, 607; Kane vs. Bloodgood, 7 Johns. Ch. R. 106; 20 John. R. 14, 600. At law the statute of limitations applies, and may be pleaded in every casein which the species of action brought is embraced by the words of the statute: as “case” in all its varieties. M’Ginnis vs. Jack and Cock, by this court, M. and Yerger’s Rep. 361. 7 Johns. Ch. Ca. 97, 226. 20 Johns. Rep. 576, 610. The conversion or adverse holding, is to be proved, for the length of time to form the bar, when the statute applies. 7 Johns. Ch. Ca. 111.

The next class of cases subject to be barred, are such as create a trust in the defendant by implication, where the property of complainant has been obtained by defendant by fraud, or unlawful means, and defendant was once liable by bill to be compelled to surrender the property, or make compensation, but complainant did not sue within the limited time. In this class of cases there is no remedy at law; but the trust was not a matter of contract, nor did the relation of trustee, and cestui que trust in fact exist. The cause before the court would have presented an instance, had Trimble been a defendant. Campbell had transferred to him Armstrong’s warrants clothed with the trusts existing between C. and A; yet Trimble was not the express trustee of Armstrong, and could have pleaded the statute of three years to a bill filed for the land warrants issued to himself. Here was a case where no action at law would have lain, but trust and confidence, between T. and A., was wanting. Of this class are, Beckford vs. Wade, 17 Ves. 87, 98-7, and Cholmondeley vs. Clinton, 2 Merivale, 93. The latter has been recognized by this court in Hickman’s lessee vs. Gaither and Frost, and it is perhaps the best considered adjudication on the subject extant.

The next enquiry is, does the present cause fall within either of the foregoing classes? To ascertain this, depends on the facts. It appears that in the' year 1799, it was covenanted between Armstrong and Campbell, that Campbell should as an attorney at law, and as an attorney in fact, attend to and transact the business of Armstrong, in reference to certain lands, granted to Armstrong and George Dougherty jointly, lying east of Cumberland Mountain in the State of Tennessee. Campbell “agreed to use Ms best endeavors to discover and ascertain said lands, and sell and dispose of the said Martin Armstrong’s part, half or moiety of the said lands to the best advantage in his power, according to his skill and opinion.” In consideration of which, Armstrong covenanted, “that the said G. W. Campbell shall have, receive and be entitled to one third part of all the said Martin Armstrong’s part, half or moiety, of all the aforesaid described lands. And the said Campbell is to have and receive one third part of the moneys or property, and of the value and consideration that may be received for such of the said lands above described, as shall be sold; and to such as may not be sold, the said Martin Armstrong hereby agrees to make and execute to the said G. W. Campbell, good and sufficient deeds of conveyance in fee simple, to the third part of the said Armstrong’s half or moiety of the same, (that is, of all the lands that shall remain unsold,) in a reasonable 'time after said lands are found out and known, and after application being made to him, or his executors, &c. by'the said G. W. Campbell or his assignees, to have the conveyances made and executed in due form, and agreeably to the quantity and quality of said lands.” It was further covenanted, that Armstrong should from time to time, give Campbell such private instructions, as it might be necessary for said Campbell to have, for the benefit of both parties, in the sale of the lands, and touching the premises. In the due performance of all which articles and agreements, the said parties, G. W. Campbell and Martin Armstrong, bound themselves each to the other in the penal sum of twenty thousand dollars.

Campbell, by this covenant was authorized to sell and dispose of the lands, according to his best skill and judgment; and one third part of the moneys or property, and of the consideration received for the lands or any part thereof, he was to retain, and the other two thirds he was to pay over to Armstrong, his principal- The bill alleges, that Campbell did dispose of the lauds, and calls upon him as a trustee, to account to Armstrong’s heirs and administrator, for the two thirds of the moneys, property and consideration, he received for them-That Mr. Campbell is liable for damages at law on the covenant, is certain; and it is equally so, that he is subject to account in equity; the court, having undoubted jurisdiction, as between cestui que trust and trustee, to enforce the covenant by bringing the trustee to an account. Here are concurrent remedies, but neither at law or in equity can the act of limitations, of three years, bar a ,suit on this covenant. The main difficulty arises however, on the plea of the seven years act. After the passage of the act of 1806, authorizing warrants to issue for lost lands, Campbell conveyed the whole of Armstrong’s referred to in the covenant, to James Trim-ble for a nominal consideration, for the purpose of having the warrants raised and removed to other lands. Trimble and Campbell entered into a covenant, by which Trimble agreed to be at the trouble of raising the warrants on the Armstrong and Dougherty lands, Campbell being also agent for Dougherty’s heirs, and at half the expense of the Armstrong warrants; and when obtained, Trimble was to pay fifty cents an acre for Armstrong’s moiety to Campbell, but he was to pay Campbell one half of the warrants at 50 cents the acre; and they were to be equal partners in the warrants, to be disposed of for the best price that mightbe had, for their joint benefit. Trimble purchased on time, and paid Campbell fifty cents an acre for the moiety, 5075 acres. Two of these warrants for 1000 acres each, were assigned by Trimble to Campbell, not to change any interest the parties claimed in them, each claiming, a moiety, but for the reason, that Campbell had agreed with Anderson and Strother, (two locators,) to attend to their law business as counsel, and they were in consideration thereof, to locate for him gratis, lands not exceeding 10,000 acres in the Duck and Elk river country; the warrants were located in Campbell’s name on Elk, as the joint property of Campbell and Trimble. After-wards, Campbell conveyed to Trimble his interest in a tract held jointly by them in East Tennessee, in extin-guishment of Trimble’s claims to the two tracts on Elk. Of these, Campbell took possession in 1806, under his grants, claiming them as his own, and held them up to the filing of this bill, in January 1823; and to the recovery of which, he relies on the statute of limitations of seven years, as a bar. The first chancellor who decreed in the cause below, adjudged that the statute did not apply. The cause was re-heard, and chancellor Green declared the statuté a bar to a decree for the lands, but ordered the defendant to account for the value at the time the bar was formed. The question is one of delicacy and difficulty, and of much importance to the community, though inconsiderable to the parties, if either of the decrees below were correct. A preliminary question arises, and must be disposed of before the main one can be examined, to wit, the effect of the contract of Trimble and Campbell in 1806, on the interests of Armstrong. The substance of that contract was, that Trimble and Campbell purchased Armstrong’s 10,150 acres of warrants at fifty cents an acre, in partnership, from Armstrong, through his attorney in fact, Campbell, one of the purchasers. It is insisted that the price is fair, and Mr. Campbell ought to account in accordance with this transaction. The defence is mainly rested on it. Trimble says, he thought it a hard bar-goin on his part; and so it may have been. He was to raise for Campbell, who had been employed to do it, 20,300, acres of warrants, and to receive 5075 acres at fifty cents an acre; but as to the defendant, the contract was certainly a gaining one. Be this as it may, it was avoidable one as to Armstrong; whether it was fair, ot unfair, it can form no defence for Mr. Campbell. No ... . , principle governing a court oí equity, is more conciu-sively settled, than that if a trustee sells the trust estate, and is himself interested in the purchase, being a fact Imowh to the buyer and seller, the cestui que trust is entitled as of course to have the purchase set aside. Were the trustee permitted to take the trust estate at his own price, and force the cestui que trust to prove the sale unfair, therq would be temptations holden out to trustees (in the language of chancellor Kent,) poisonous in their consequences. 2 Johns. C. C. 260-61. The decisions are unifornrand too numerous to be even referred to; some of them may be seen abstracted in Dovone vs. Fanning, 2 John. C. C. 255; and Fox vs. Mackreath, 2 Bro. C. C. 400, and 8 Wheat. 442, 463.

The transfer of the lands to Trimble, and the issuance of the warrants to him, and the re-transfer of the warrants to Campbell, must be viewed by the court as mere formalities, not divesting any title Armstrong had to the warrants, or stripping them of the trust attached by Campbell’s covenant of 1799. Equity regards not the circumstance, but the substance of the act. Francis’ Maxims, 13. The warrants located in Lincoln were Armstrong’s, as much as the lands from which they had been raised were his, and the lands located, were the substitute of those from which the warrants had been removed. Mr. Campbell holds these lands in his character of trustee, without having separated the trust from the estate, acquired in his own name, unless he has had seven years adverse possession, within the meaning of the act of 1797, ch. 43, sec. 4. This raises the question, can a trustee having and holdingpossession of the trust estate for his cestui que trust, by any act of his own, without communication with the cestui que trust, so change the character of his possession, as to make it adverse to the cestui que trust, by the lapse of time, and by this means denude himself of his character of trustee, without performing tbe trust? We think not. In cases of trust created by deed or contract, by which the trustee is entitled to take and hold possession, and where the cetsui que trust has no remedy at law, the possession holden shall be deemed consistent with the duty of the trustee, and consequently consistent with the rights of the cestui que trust; and if he part with the possession to a third person, in whose favour time would operate, and regain it by purchase or descent, he shall hold it incumbered with the trust. The rule is taken from Littleton, I Inst. 242 a. “If a disseisor enfeoff his father in fee, and the father die seised of such estate, by which the lands descend to the disseisor as son and heir; in this case the disseisee may well enter upon the disseisor, notwithstanding a disseisin, for as to the disseisin, the disseisor shall be adjudged in but as a disseisor, notwithstanding the descent.” “For, says Hargrave in note 172, when the disseisor enfeoffs the father, it is presumed to be done in order afterwards to come in by descent, and the act of law shall not give sanction to the wrong of the party; nor shall any man by his own wrong, however cunningly contrived, give to himself a right; for when the heir by descent gains a jus possessions, he is supposed innocent of the wrong of his ancestor; but here he is partner of his guilt..” That is, a rightful heir, notparticeps criminis, coming in by descent cast, would hold the land, by taking away the right of entry of the disseisee and true owner. Disseisin and descent, were in early times the common bar in England; then come fine and nonclaim, in virtue of the statute of fines, 4 H. vii. ch. 14, in analogy to which, our 7 years act was passed in 1715, creating a bar, and communicating an absolute title by the lapse of time. The same rules were applied to trustees attempting to avail themselves of the statute of fines, as in cases of disseisin and descent; that no man by his own wrong should gain to himself a right. Thus in Bovey vs. Smith, 1 Ver., 60, 84, Lord King adjudged, that trustee having sold land to a stranger, and a fine with proclamations, and five years having passed, the trus-fee afterwards, for valuable consideration really paid, purchases the land again of the vendee; yet the trustee notwithstanding the fine, proclamations, and non-claim for five years, should stand seised as at first, and as if the lands had never been sold, or any fine levied. This decree was given with the concurring opinion of the Ld. Ch. Justice North. We have carefully traced it through the reported decisions, and find the rule declared in Bovey vs. Smith, in a case such as this, to have been followed without an exception. We will content ourselves with referring to Kennedy vs. Daly, 1 Sch. and Lefroy, 376, 377, and Chalmer vs. Bradley, 1 Jacob and Walker, 66-7-8, as sufficient evidence of the recognition of the rule; there being no names of higher authority in modern times, than Lord Redesdale and Sir Thomas Plumer, who decreed in the last named causes.

Mr Campbell therefore by his conveyance to Trimble, and Trimble’s re-conveyance, did not extinguish or separate the trust from the land; but they were transferred both together. This transaction was a wrong as against Armstrong, the cestui que trusty and no act of law can give it sanction, so as to better the situation of the trustee. He comes within the letter of the authority cited from 1 Inst. and is estopped by his covenant, creating him a trustee, to claim a right grounded on his own wrong, and therefore cannot be heard to say his possession was adverse. The Lincoln lands must be divided; two thirds to Armstrong’s heirs, and one third to defendant.

Mr. Campbell by his covenant with Armstrong, bound himself for one third part of the land, to dispose of it as he judged best. He judged best to have these two warrants located without communication with Armstrong, and did it pursuant to the trust, for the consideration of one third covenanted to be given by Armstrong; nor is there apy measure of justice to make his heirs pay one third to Mr. Campbell, and another third for locating the warrants. That Campbell employed Anderson and Strother to perform the duty on his behalf as agents, is true; but Armstrong’s covenant was that he should have two thirds of the proceeds of the East Tennessee lands; those two tracts are proceeds, and Arm. strong entitled by the covenant. For such portion of the lands as have been sold, two thirds of the money, with interest from the time it was received, will be accounted for. Also the parties will account for the rents and profits of the lands, and the taxes, costs and charges incident, with each other.

As to the 640 acre warrant, Mr. Campbell will answer the interrogatory, and inform the court whether it be located on land; if not, how has it been disposed of.

For the warrants drawn in 1807, except the 2000 acres located in Lincoln, Mr. Campbell will pay one dollar an acre. For the warrants drawn after 1807, including the 270 acres withdrawn from the Lincoln land, he will pay 62⅛ cents an acre; the interest to be calculated from the time it commenced in the decree below.

The decree as to the warrants in Armstrong’s name, located in the Western District, will be affirmed. Under the circumstances, Mr. Campbell acted for the best. There is no evidence that the buyers of it could not have their third of the warrants, had they applied; and if they had, the same locating fee would have been necessarily paid by them. There was no breach of trust as to these warrants, and to this part of the transaction, the most equitable rule must be applied.

The court think that compound interest cannot be allowed, save in very peculiar cases, and a majority of the court think this not one of that description. Although Mr. Campbell’s course before the bill was filed, may have been over cautious in not settling with the heirs, and exceptionable in withholding from them a true statement of the matter on paper, yet, his answer has fully shown the state of the trusteeship, so far as within his knowledge; and because he has failed to keep accounts, the court cause him to be charged with the' best selling price for the warrants. Further than this, might be more than compensation.

As to the objection to the frame of the bill, we think there is nothing .in it. From any thing appearing in the cause, the heirs were entitled to all these lands and warrants; for when the transfer to Trimble is set aside, there is no evidence to show as to whom Mr. Campbell parted with the warrants. If not disposed of at Martin Armstrong’s death, they descended to his heirs, and nothing appears to the contrary.

The master will report as directed, as soon as may be.

Decree accordingly.  