
    Robertson and others vs. Auld and others.
    
    A surveyor or locator of lands in Tennessee is not entitled to the one third, or locator’s part, against an innocent purchaser from the grantee, without notice.
    Where a will, which was part of the claim of title under which the defendants claimed, contained the following devise: “I give and bequeath to A. his heirs forever, one moiety of all the lands I hold by entry or otherwise on the Western waters, the expense of clearing the lands to be borne by the persons to whom they are bequeathed, the money to be advanced out of my general estate, and to be repaid in due time.” Held, that this was not a charge upon the land in favor of the locator, nor was it notice of the contract for location, which would oust the defendant of his plea of innocent purchaser without notice.
    A suit to determine the right and title to lands is not necessarily local, but is either local or personal. And therefore, the locator of lands lying within the Indian boundary is compelled to enforce his claim to the locator’s part within the time limited by law.
    The interest of a locator to part of the lands located, is not an express trnst, and it is subject to the statutes of limitations and lapse of time.
    Lands situate in the Indian boundary were located in 1183, granted in 17S8, and devised by the grantee in 1786, and conveyed by the devisee in 1792, and by the bargainee conveyed in 1799 and 1809: the defendants lived in North Carolina. The lands were not identified until 1822, and the act of Congress prohibiting the going upon lands in the Indian boundary was not repealed. Held, that lapse of time is a bar to the claim of the locator for his part of the land.
    In the year 1785, General Abner Nash employed General James Robertson to locate twenty-five land warrants of one thousand acres each, in the western district of Tennessee. The lands were located in 1785, grants issued in 1788. The lands were granted at the expense of James and Elijah Robertson for which said James was to have one third. General Nash died in 1786, having devised his lands to his son, Abner Nash, and his daughter, Margaret Hoslin, in equal moieties. The devise to his son Abner Nash, is in these words: “I give and bequeath to Abner Nash and his heirs forever, one moiety of all the lands I bold by entry or otherwise, on the Western waters, the expense of clearing the same to be borne by the persons to whom they are bequeathed, but the money in the first place to be advanced out of my general estate, and to be repaid in due time.” Abner Nash, the devisee, died before 1799: before his death he sold and conveyed to Carthey, in 1792; Car-they to Wheeler in 1799; and Wheeler to Auld in 1809, who purchased for a full consideration, without any notice of the claim of Robertson to any part of said lands, except such as the will in the above clause would give. Nash, the devisee, lived until his death, in the State of North Carolina; those who purchased from him lived in North Carolina, except Auld, the defendant, who lived in the district of Columbia. General Robertson died in 1814, and at his death resided in the State of Tennessee. The complainants are his heirs at law and are of full age. The lands could not be identified until 1822, and the act of Congress prohibiting the going upon lands in the Indian boundary was not repealed until 1825. These lands lay within the Indian boundary. The defendant, Auld, relied upon the lapse of time, and that he was an innocent purchaser without notice. Pleaded the statutes of limitations in force in this State of 1715 and 1819 of three and seven years. The cause was transferred from the chancery court to this court under the statute, for want of a Chancellor to try it who was unconnected with the parties.
    P. M. Miller, for complainants.
    
      Wm. Stoddart, for defendants.
    If any lien or charge is created by the will on the land, it is for the payment of money, not for a payment in land. The fact of ordering the money to be paid out of his general estate, negatives the idea of the intention of the testator to create a charge; he did not design to make the debt a charge on the land, but a charge on his general estate, or rather a personal charge on his executors. No person is stated to whom the money is to be paid, no services are mentioned, and the locality of the land and impracticability of making it available, negatives the idea of his designing to raise a charge on it. To make a charge there must be the expression of the testator’s intention. Jeremy, 98. Also to make the debt a charge on the land it should appear that the money was to be raised out of the land. Jeremy, 102.
    If a charge is raised by the expression in the will, it is for the paymentof a money demand. Theactof 1715, ch. 48, sec. 9, requires claims to be made within seven years after the death of the debtor. The act of 1789, ch, 23, sec. 4, provides that creditors shall, within two and three years from the qualification of executors, exhibit their demands and sue, orbe barred. Cooke, 330: 2Ten. It. 317. If plaintiffs rely on the clause in the will it is a legal debt or demand, and no reason is seen why it should not be barred. If it be said this claim is not barred by the acts of 1715 and 1789, still, plaintiffs are barred by length of time. 5 Hay. 240.
    Although in cases of express trusts, between trusted and cestui que trust, as a general rule, time will not bar; but the case before the court comes within the cases of constructive trusts, when the person who is proceeded against is endeavored to be turned into trustee by evidence and construction. When the attempt is not against the original party, but a purchaser from him, the application of the plaintiff is successfully resisted on account of the laches of the plaintiff. 2 Atkyns, 43: Sugden, 371: 4 Brown C. 125: 17 Vesey, 97, Borny vs. Ridgard: 3 John. C. R. 216, 190: 3 Murphey, 580.
    As to the excuses set up by plaintiffs. They could have sued the executors of General Nash in North Carolina;- or they could have filed a bill there against the devi-sees. In 6 Cranch, 148, and 2 Condensed Reports U. S-333, Massee vs. Watts, the principle as to jurisdiction is very clearly laid down, thus: “A suit in chancery by one who has the prior equity against him who has the oldest patent, is in its nature local, and if it be a mere question of title, must be tried where the land lies. But if it be a case of contract, trust, or fraud, may be tried where the defendant may be found.” And this it must be recollected is a case of constructive trust. The plaintiffs not being able to go on the lands is no excuse; the grants contained a sufficient description to point out the locality of the land; they could have proved the services of their ancestor, as well thirty years ago as now, and better, as Harris and others were then alive. If they can now succeed with their proof, except for their laches, what would have prevented a court of chancery in North Carolina, from acting and vesting the legal title in plaintiffs, making them tenants in common, and at any time plaintiffs would have had partition, after the country was opened to their visits. Defendants rely on the statutes of limitations of 1715, eh. 27, sec. 2, and 1819, ch. 28.
   Peck, J.

delivered the opinion of the court,

Admitting the agreement exhibited with the bill to be sufficiently certain, and that the same is proved; also, that proof has been made of the services performed on the part of complainants’ ancestor in making the locations, we will then be brought to consider of the grounds of defence assumed by defendant, that he is an innocent purchaser without notice, lapse of time, and the statutes of limitations.

As to the first; this ground of defence is met by the languaage of the will, which it is urged is equal to a recital in a deed, and therefore sufficient to put the purchaser upon enquiry. This rule we think does not apply in the case before us. The inferences to be drawn from the language in the will, certainly are, that the personal estate of the elder Nash was to be made liable for the cost and expense of the surveyor’s and other office fees, for surveying the land devised. Not the remotest hint is thrown out that the lands are to be charged, or that the locator’s interest is to be thus paid. Indeed, the language of the will may well be taken as conveying the idea that the elder Nash was not informed of the surveying and granting of the land. "I give and bequeath to Abner Nash,, his heirs forever, one moiety of all the lands I hold by entry or otherwise, on the western waters, the expense of saving the same to be borne by the persons to whom they are bequeathed, the money to be advanced out of my general estate, to be repaid in due time.” On this clause of the will, and there is none other which applies, no inference favorable to the complainants’ claim can be drawn. We therefore think that defendant, Auld, is protected by his plea of innocent purchaser without notice.

The defence of lapse of time, and the plea of the statutes of limitations will now be considered. The surveys were made in 1785, the grants issued in 1788. True, the elder Nash died prior to the issuance of the grants, but the estate by the will and conveyances made subsequent, passed into other hands. This was of itself sufficient to hasten the locator to set up his claim if founded in justice. Between the years 1792 and 1799, most of the defendants obtained their titles, and all the parties to the original agreement have been long dead. The right to sue accrued to the locator, when he had performed the services by taking out the grants. The courts were at all limes open; the suit could have been brought in North Carolina; and though the division of the land could not be made, still the right could have been settled between the locator and the devisees of the elder Nash. The suit was not necessarily local, but was either local or personal. 6 Cranch’s Rep. 148. There is therefore, nothing in the objection that the land lying in the Indian boundary exempted the locator from that strict 'and prompt action, which operates in all other cases to hasten him, having a demand to enforce. If the excuse for the laches of the complainants could be urged as an available defence in this behalf, then time, which comes as a witness, and fixes the presumption of satisfaction in all other cases, would be removed in this, while the rule should be held up even-handed. What reason is there for a deviation from it in this case? None. The forum was open, parties always at hand to be reached, a subject matter to be operated upon from 1788 up to 1792 and 1799, while the estate remained with the devisees. Since that, no suit has been prosecuted up to the filing of the present bill. Time must therefore be allowed as a good defence.

It is not material to consider of the operation of the statutes of limitations, further than to say that there being, as to the defendant to the bill, no express trust created in any aspect of the case, there, is no reason why the plea of limitations should not be alio,wed. The courts of Tennessee have at all times been liberal in sustaining the claims of locators, even when it was doubtful what contract existed, or if any; the custom of the country has been resorted to, and an interest fixed, and by the courts sustained in favor of the locator. But this class of the community are not to be favored above all others. While it may be true that the hfeirs of the locator in this case may have an interest once founded in justice, it may be equally true that it has been satisfied. Lapse of time alone operates to prove it, and limitations are interposed for the quiet of men’s estates. It is a strong plea when advanced by a purchaser without notice of the outstanding equity, and being a strict rule of law, must be allowed 'whenever insisted on, and made to apply. The bill must therefore be dismissed.

Bill dismissed. 
      
       Catron, Ch. J. did not sit in this cause.
     