
    *Harrison & als. v. Gibson & als.
    March Term, 1873,
    Richmond.
    1. Laches — Account—Period of Demanding. — The decided cases do not fix any period as limiting the demand for an account. If from the delay which has taken place, it is manifest that no correct account can be rendered, that any conclusion to which the court can arrive, must, at best, be conjectural, and that the original transactions have become so obscured by time and the loss of evidence and the death of parties, as to render it difficult to do justice, the court will not relieve the plaintiff. If under the circumstances of the case it is too late to ascertain the merits of the controversy, the court will not interfere, whatever may have been the original justice of the claim.
    3. Bill by Husband and Wife — Bill of Husband. — A bill by husband and wife, in right of the wife, is the bill of the husband; and the wife is only joined for conformity. The coverture of the wife is not, therefore, an excuse for delay in bringing the suit.
    3. Laches — Lapse of Fourteen Years. — Though a delay of fourteen years after a right has accrued, does not create a statutory bar, it will, in connection with other circumstances, be very persuasive against the justice of the claim. Relief refused in this case.
    By deed bearing date the 7th day of April 1808, and duly admitted to record in the clerk’s office of the County court of Prince William county, Beverly R. Wagoner, of said county, and Margaret S. his wife, conveyed to John Gibson of Orange county, four tracts of land in Prince William and Eauquier counties, and eight slaves by name, two of them men, three women, and the three children of one of them, and all his other personal property, upon trust, that Gibson shall iffithe first place, ^proceed to sell so much of the said estate, real and personal, as will be sufficient to discharge all just debts due from the said B. R. Wagoner, and that are due and recoverable from the. estate of Benjamin Harrison, deceased; and shall allow unto him, during his natural life, a genteel support out of the proceeds of said estate; and the residue of the proceeds of said estate shall, during the life of the said Margaret S. Wagoner, be paid unto her yearly, and every year, for her use; and upon the death of the said Margaret S. Wagoner, the said Gibson, his heirs, &c., shall convey to the child or children she may leave, in fee simple, all the before mentioned estate, interest and property of every description, which may he living at the time of the death of the said Margaret S. Wagoner, by even or equal portions; or in case of the death of any child or children of said Margaret S. Wagoner, during her life, such child or children leaving issue, then on the death of the said Margaret S., to convey to such grand-child or grandchildren the portion of said estate to which the father or mother of such grand-child or grand-children would have been entitled to under this instrument, had he or she survived the said Margaret S. Wagoner; reserving to the said B. R. Wagoner, in case of his surviving the said Margaret S., during his life, the support before mentioned.
    
      Beverly R. Wagoner died in 1809. Gibson undertook the trust, and.seems to have sold before 1816 three of the tracts of land and one of the male slaves. In April 1816 the County court of Prince William made an order by which J. Dawson, commissioner of the court, was directed to settle and report the account of John Gibson, as trustee under the deed from B. R. Wagoner; and in May of the same year the commissioner returned his report. In this report Gibson is charged with the price of the slave and the price of the three tracts *of land; though the deeds for the land are dated after the return of the commissioner’s report, and express only the consideration of five shillings. Upon this settlement, Gibson is found to be in advance to the trust fund on the 31st of December 1815 $267 39-100. The commissioner also reports a debt due to John Gibson, jr., of $1,080.70, as of the 3d of April 1816. John Gibson, jr., was a lawyer, and the son of John Gibson, and he was employed by John Gibson, at a salary of $100 a year, to attend to the business in the courts, in which there were suits pending against Harrison’s estate, and he was also to attend to the management and sale of the trust property; and his debt consisted of charges for services rendered to B. R. Wagoner before the creation of the trust, a debt due by judgment against said Wagoner, and for his salary of $100 a year for seven years, with interest. The commissioner states in his report that he submitted it and the statement of the account to Mrs. Wagoner and her son-in-law, Mr. Russell Harrison, as the present representatives of B. R. Wagoner, deceased, for their inspection and examination. No particular exception was by them taken thereto, except as relates to the salary of $100 per annum allowed by the trustee to John Gibson, jr. ; to which allowance they decidedly object.
    At the May term of the court an order was made reciting that the account was returned to court and ordered to lay over; and at the June term, there was an entry, that the report, with the exceptions filed thereto, was taken up and argued by counsel ; on consideration whereof the court doth overrule the exceptions, and confirm the report of the commissioner; and the report and account are ordered to be recorded.
    Mrs. Wagoner had but one child, and she was married to Russell B. Harrison; and by deed bearing date the *16th day of February 1817, John Gibson, Mrs. Wagoner and Harrison and wife, for the consideration of $1,400 conveyed to John Gibson, jr., the remaining tract of land conveyed by the deed, which was called the Mansion house tract, and contained two hundred and eighty acres.
    Both Mrs. Harrison and her husband died in the life time of her mother; the first dying in May 1823, and Mr. Harrison in November 1835; and they left four children, who were alive at the death of their grandmother, Mrs. Wagoner, in September 1840.
    The only acts, so far as appears in this case, done by John Gibson, the trustee, after the settlement of his account in 1816, was that in December 1816 he enjoined the removal of the slaves out of the State by Mrs. Wagoner, and Harrison and wife. In this bill he charged that Russell Harrison had sold one of the slaves to a person who had removed her out of the State; and he said that Mrs. Wagoner was still young enough to have many other children. It was after this bill was filed that the deed last above mentioned was executed. And in 1830 Gibson sold eight of the slaves, one of them an old man purchased by Mrs. Wagoner for forty dollars. The slaves sold for $1,189 60-100, and of the proceeds $771 65 was applied to pay the amount of a decree recovered against Gibson as trustee; and of the balance all but $98 45 was paid to or for Mrs. Wagoner. Gibson died in 1833, without having settled any further account of his actings as trustee.
    At the death of Mrs. Wagoner her grandson, Wm. B. Harrison, was of the age of twenty-one years; one of the daughters was married in 1836, and another in 1838, both of them minors when they were married, but over twenty-one years in 1840; the youngest was married in September 1841, then a minor. After the *death of Mrs. Wagoner these parties, or some of them, seem to have instituted actions at law against the persons in possession, to recover the land or some of it, sold by Gibson; and pending these suits, probably in 1846, John Gibson, jr., in a conversation with William R. Purcell, the husband of the oldest grand-daughter of Mrs. Wagoner, said to him — ‘ ‘I understand you intend to sue me or my father’s estate, respecting these trust matters; if so, I wish you would do it at once, while I am alive and can defend it. ’ ’ He was dead when the suits were brought.
    In April 1854 William B. ^Harrison, then living in the State of Ohio, William R. Purcell and wife and Bernard G. Hays and wife, then living in Washington city, filed their bill in the Circuit court of Prince William county, against the administratrix of John Gibson, jr., who had been one of the administrators of John Gibson, and the heirs of John Gibson, the elder, the administrator of J. C. Gibson, another administrator of John Gibson, the elder,and Thomas G. Murray and Julia, his wife, the said Julia being the youngest grand-daughter of Mrs. Wagoner, in which they set out the deed of trust and the settlement made by the commissioner in 1816, and the deeds made by John Gibson. They insist that the commissioner was not authorized, by the order of the Count3* court of Prince William, to settle or state the claim of John Gibson, jr. ; and the statement was therefore unauthorized and not evidence; and that the claim itself was utterly unjust and unfounded; that John Gibson was allowed by the commissioner 5 per cent, on his receipts; and to allow this charge would make the expense of administering the trust near twenty-five per cent, of the amount received ; and they plead the statute of limitations to all but the four last items of the account. They refer to the three first deeds as ^stating only a nominal consideration, and made after the settlement of the account in 1816. They say that the price of only three of the tracts and one slave is charged in that settlement; and neither Gibson, in his lifetime, nor his administrators, having made any other settlement, the plaintiffs are left uninformed as to what became of the fourth tract or its proceeds of sale, and the other slaves. They therefore pray for a discovery from the defendants, and a proper settlement of the accounts of the trustee.
    By an amended bill, they say that the plaintiff, Wm. B. Harrison, resided in the State of Ohio in 1840, and had continued to reside in that state; and that at the death of Mrs. Wagoner the female plaintiffs were femes covert and continued to be so.
    The defendants demurred to the bill; but the demurrer was overruled as to the ad-ministratrix of John Gibson, jr., and the administrator of J. C. Gibson, another administrator of John Gibson, the elder. And thereupon these parties answered separately. They both relj upon the lapse of time which had occurred since the death of John Gibson and Mrs. Wagoner, and the death of all the parties who could give any information on the subject; and they say that they know nothing themselves, and that the papers and books of their intestates do not enable them to give any information, except that the books of John Gibson, jr., contain an account of the sale of eight negroes, purporting to be the negroes conveyed in the deed of trust, a copy of which his admin-istratrix files with her answer. This is the sale herein before referred to.
    The plaintiffs took testimony to prove the value of the land sold by Gibson. Some of these witnesses speak of the value at the time of giving their evidence and there is nothing very definite as to the value at *an earlier period. The cause having been removed to the Circuit court of Culpeper county, came on to be finally heard on the 17th day of June 1859, when the court made a decree dismissing the bill, with costs. And thereupon the plaintiffs applied to this court for an appeal; which was allowed.
    C. Robinson and J. Alfred Jones, for the appellants.
    Wra. Green, for the appellees.
    
      
       Laches — Account.—The rule laid down in the first and third headnotes of the principal case, was recognized as far back as 1806, Randolph v. Randolph, 1 H. & M. 181, and has been followed by a long line of subsequent decisions. See Bolling v. Bolling. 5 Munf. 334; Coleman v. Lyne, 4 Rand. 454: Burwell v. Anderson, 3 Leigh 348; Corr v. Chapman, 5 Leigh 176: Hayes v. Goode, 7 Leigh 452; Wissler v. Craig. 80 Va. 22; Griffin v. Birkhead, 84 Va. 617, 5 S. E. Rep. 685; Dismal Swamp Land Co. v. Macauley, 85 Va. 20, 6 S. E. Rep. 697; Stamper v. Garnett, 31 Gratt. 550; and foot-note collecting many cases on this subject.
    
    
      
       Bill by Husband and Wife. — The proposition laid down in the second headnote was sustained in Blackwell v. Bragg, 78 Va. 529; McCullough v. Dashiell, 85 Va. 41, 6 S. E. Rep. 610.
    
   STAPLES, J.,

delivered the opinion'of the court.

This bill is filed against the heirs and personal representatives of a ¡trustee. It complains of a breach of trust on the part of the trustee, the waste and misapplication of the trust subject; and it asks for a discovery and account. The transactions of which complaint is made occurred between eighteen hundred and eight and eighteen hundred and eighteen, nearly sixty years ago, and more than forty years before the bill was filed. The complainants admit they are without any definite information in respect to the trust property; and they call on the defendants for a discovery. All the original parties are dead; and the defendants say they have no knowledge or information on the subject; nor have they possession of or access to documents or papers other than the records of the court, throwing any light upon the transactions of the trustee; and they rely upon the staleness of the demand and the lapse of time as a bar to any recovery in the case.

I think the defence is a good one, and ought to be sustained. I do not rely, however, exclusively upon the lapse of time or the laches of complainants. While the transactions are veiled in great obscurity, there is enough in the record to satisfy the mind that the trust property was neither wasted by the trustee or with his ^consent, nor converted by him to his own use ; but was properly applied to the purposes contemplated by the parties to the trust.

By the provisions of the deed the trustee was not only authorized, but he was required to sell so much of the trust property, real or personal, as was necessary to discharge all the grantor’s debts, and also the debts due and recoverable from “the estate of Benjamin Harrison dec’d; then to allow the grantor, out of the proceeds, a genteel support during his life; and the residue of such proceeds to be paid to Mrs. Margaret R. Wagoner, the wife, yearly and every year for her use, so long as she shall live. ’ ’ At her death the estate, or what remained of it, the trustee was directed to convey to the children then living and to the descendants of those that were dead. This deed was executed in April, 1808. The grantor died in 1809. Between the date of the deed and the 1st of January 1816, the trustee paid debts of the grantor, including an annual allowance to Mrs. Wagoner, amounting to $2,653 38 cents. He also satisfied a decree against the estate of Benjamin Harrison, dec’d, amounting to 1,781 dollars. There was in addition to these debts a claim held by John Gibson, jr., amounting to $1,080 for services rendered the estate, which was never paid by the trus tee.

The trust deed originally embraced four tracts of land; one of these was sold in 1810 to Rrench, another to Rox, another to Orem, and the proceeds applied in payment of the foregoing debts. Why the deeds executed to some of these purchasers expressed a nominal consideration only, it is impossible now to say; but this is not very material, as the purchase money was faithfully accounted for by the trustee. Indeed, the complainants concede in their bill that three of the tracts were sold and the proceeds properly applied; but they ^insist that no account has been given of the fourth, and by far the most valuable tract. That will be the subject of consideration hereafter.

It appears that the accounts of the trustee, from the commencement of the trust to the first of January 1816, were referred to a commissioner of the County court, and were regularly settled by him. The affidavits and exhibits filed with the commissioner, show that all the transactions of the trustee were the subject of rig-id investigation, and that the sales made by him were perfectly, understood and acquiesced in as necessary and proper.

When the account was completed, it was submitted to Mrs. Wagoner and her son-in-law, Russel Harrison, for examination. No objection was made by either of them, except to the claim of John Gibson, jr., for services rendered the estate. That claim was excepted to and made the subject of a controversy before the County court, at the June term, 1816. The exception was overruled, and the report of the commissioner sustained and confirmed. The report thus confirmed showed a balance due the trustee of two hundred and thirty-three dollars and 39 cents, and the sum of one thousand and eighty dollars and 17 cents, due John Gibson, jr., as before stated. It was necessary to make some provision for the payment of these debts. This could only be done by a sale of a portion of the slaves, or of the only remaining tract of land known as the “Mansion house tract.” The trustee was authorized to sell both or either. It is highly probable that Mrs. Wagoner and her daughter preferred to retain the slaves and surrender the land. Be that as it may, it appears that afterwards, on the 16th of February 1817 the trustee sold and conveyed this 1 ‘Mansion house tract’ ’ to John Gibson, jr., at the price of fourteen hundred dollars.

This sum would have about satisfied “the claims of the trustee and John Gibson, jr. It was probably so arranged and agreed by the parties, as we hear nothing of these debts at any time after this sale.

It may be, as insisted by complainants, that the fourteen hundred dollars was a very inadequate price for the land. It would be very difficult, in 1854, when this suit was brought, to fix the market value of 280 acres of land in the year 1817. That the transaction was perfect!}' fair and satisfactory to all the parties is proved by the fact that Mrs. Wagoner, the widow, Russel B. Harrison and his wife Mrs. Mary Harrison, united with the trustee in executing the deed of conveyance. Mrs. Wagoner was the life tenant, and Mrs. Harrison would, in all human probability, survive her mother, and thus become entitled to the estate i,n fee simple. They were then the only parties interested in the trust property. Mrs. Harrison, it appears, died in 1823, her husband in 1835, and Mrs. Wagoner in 1840. So far as this record discloses, neither of them made any objection to the claim of John Gibson, jr., after the decision of the County court; neither made any complaint of any waste or improper management, or conversion of the trust property by the trustee, or by his connivance or consent.

And now as to the slaves conveyed in trust. There were eight originally; three men, two women, and three children. One of the men was sold by the trustee in 1816, and the proceeds applied in paying debts. In 1830 seven were sold by the trustee, to satisfy a decree against the estate of Beverly R. Wagoner. Of these seven, two only were embraced in the deed. What became of the others it does not appear. As five of them were grown in 1808, when the deed was executed, it is not difficult to believe that in the long interval between that period and the death of Mrs. Wagoner, in 1840, they may have died or become old and worthless, or escaped “into a non-slaveholding State. There is not the slightest reason for believing that the trustee ever appropriated any of them to his own use, or ever permitted any one else to do so, without accounting for the proceeds. It is difficult to believe that Mrs. Wagoner, who was directly dependent upon the labor of these slaves for the support of herself and her g'rand-children, would have consented to such a violation of her right of property.

The female complainants were married respectively in 1836, 1838, and 1841. It is probable the youngest attained the age of maturity in the latter year. We hear nothing of any complaint on their part, or on the part of their husbands, until fourteen years after the death of Mrs.’ Wagoner, when this suit was brought. It is true that in 1846 John Gibson, jr., seems to have had some notification of the purpose of the complainants to institute a suit against him or against his father’s estate; and he then requested one of the complainants, Judge Purcell, if such was their intention, to bring the suit at once, while he was alive and could defend it. They, however, did not think proper to pursue that course; they waited eight years longer, until after the death of John Gibson, jr., and the death of every other person who could throw any light upon these transactions. And now they call upon the courts, after the lapse of forty years, to set aside the decision of the County court in favor of John Gibson’s debt, as coram non judice, to re-open for investigation the question of the validity of that debt, to enter into an inquiry touching the sale and conveyance of the real estate; and indeed to overhaul all the transactions of the trustee, upon vague charges and surmises of a violation of trust duties.

It is impossible that any such investigation can now be had; as the materials for it are not in existence. It is impossible that justice can be done.after this long “'lapse of time. The complainants are not entitled to the aid of a court of equity for any such purpose. They have slept upon their rights, if they ever had any. It is a familiar doctrine of courts of equity that nothing can call forth these. courts into activity but conscience, good faith and reasonable diligence. Where these are wanting, the court is passive and does nothing. I shall not undertake to review the cases, or to discuss the principles bearing upon this point. The whole subject has been repeatedly considered by this court, and the law well settled. The cases do not fix any period as limiting the demand for an account. If, from the delay which has taken place, it is manifest that no correct account can be rendered, that any conclusion to which the court can arrive must at best be conjectural, and that the original transactions have become so obscured by time and the loss of evidence and the death of parties, as to render it difficult to do justice, the court will not relieve the plaintiff. If, under the circumstances of the case, it is too late to ascertain the merits of the controversy, the court will not interfere, whatever may have been the original justice of the claim. 2 Lomax on Executors, 488, margin ; Carr’s adm’r v. Chapman’s Legatees, 5 Reigh 164; 2 Story’s Eq., Iu. sec. 1520 a. ; Perry on Trusts, sec. 869.

It is urged, however, that the female complainants were infants at the death of their mother; to which was superadded the disability of coverture. On the contrary, at that time they were all adults, with the exception of one, who arrived at maturity in 1841. It is true, they were femes covert, and so continued to the institution of this suit. But the bill in this case, though in the name of husbands and wives, is the bill of the former only; for it is well settled that every bill by husband and wife, jointly claiming in right of the wife, is the act of the *husband, though in right of his wife. She is, however, joined for conformity. Dandridge v. Minge, 4 Rand. 397; Caperton v. Gregory, 11 Gratt. 505; Hillis v. Hambleton, adm’r, 10 Gratt. 300.

In this case the husbands were undeir no disability, and they could have filed this bill as easily in 1840 or 1841 as in 1854. At tithe John Gibson, jr., was alive. He alone could explain the origin, character, and grounds of his claim against the trust estate. If that claim was valid, the sale and conveyance to him are satisfactorily explained, and the real estate fully accounted for. Indeed, the justice of this debt being conceded, there is really no ground for any serious controversy. The propriety and necessity of bringing the suit in the life time of John Gibson, as complainants were requested to do, are apparent. Ko record is given, no reason suggested for this delay. And although the time which has elapsed since the death of Mrs. Wagoner may not, of itself, constitute a statutory bar to the claim, still, the unaccountable neglect of the parties for fourteen years thereafter to prosecute any suit, when considered in connection with the other circumstances, is very persuasive against the equity and justice of that claim. I think they fully justified the court below in dismissing the bill.

Por these reasons I am of the opinion the decree should be affirmed.

Decree affirmed.  