
    Charlotte Bossard, et al., vs. Maria H. White
    A father conveyed by deed certain slaves to W., in trust for bis seven children then living, reserving to himself the use during his natural life; “ and from and immediately after his death to be tahen in trust by the said W., and as the children before mentioned arrive at age or marry, at which time the said negroes and their increase to be equally divided between them or the surviving ones of the seven before mentioned, share and share alike, freed and discharged of all further and other trusts or limitations, to be held by them and each of them, their and each of their executors, administrators and assigns — Held, by Johnston and Dargan, CO., that only such of the seven children as survived the father were entitled to take.
    The deed was executed in 1815, when the children were all minors. One died, and in 1829 the donor divided the slaves among the six surviving children — two of whom were still minors. The donor died in 1852, leaving four of the seven children surviving him, who filed their bill against his executrix, claiming such of the negroes, and their increase, or their value, as had been allotted, in 1829, to two of the deceased children, and averring want of notice of the deed of 1815, until after the death of the donor: — Held, that the lapse of time and circumstances of the case were sufficient, after the death of the donor and trustee, to raise the presumption of notice; and that having acquiesced for so long a time, they could not now disturb the division of 1829.
    The bill was barred by the statute of limitations : semble.
    
    Constructive notice will not arise from the recording of a deed which the law does not require to be recorded; but such recording rebuts the idea of concealment, and is a circumstance to be relied on in considering the question of actual notice.
    The Court is always reluctant to disturb family settlements, more especially where they are old, and the parties principally to be affected being dead, can give no answer or explanation.
    Want of notice does not prevent the statute of limitations from running where there is no fraud.
    
      BEFORE JOHNSTON, OH., AT SUMTER, JUNE SITTINGS, 1857.
    Johnston, Oh. This case arises under a deed executed by Joseph B. White, on the 2nd February, 1815, by which in consideration of love and affection for his seven children, he conveyed to Leonard White, sixteen negroes, in trust for his children, reserving to himself a life estate. The deed was recorded in the office of the Register of Mesne Conveyances for Sumter District, three days after its execution.
    The terms of the trust are as follows: “for the sole and separate use of the seven children before named, nevertheless, he the said Joseph B. White reserves a right to the use of the aforesaid sixteen slaves, and the increase of such of them as are females during the term of his natural life, but notwithstanding, they shall not be subject to his debts or contracts; and from and immediately after his death, to be taken in trust by the said Leonard White, and as the children before mentioned, arrive at age or marry, at which time the said negroes and their increase to be equally divided between them, or the surviving ones of the seven before mentioned, share and share alike, freed and discharged of all farther and other trusts or limitations, to' be held by them, and each of them, their and each of their executors, administrators and assigns.”
    
    
      On tbe 6tb October, 1829, Joseph B. "White caused partition to be made of forty-two negroes among six of the children named in the deed, one viz : Emily, having previously died under age and unmarried. This partition embraced all the negroes mentioned in the deed, and their issue, and in addition sixteen other negroes, the property of the said Joseph B. White. Of the six children, four were of age, and have received and have ever since retained the slaves allotted to them. Two, to wit: Joseph and Anthony, had not attained their majority, but after they did, received and have since retained the slaves that fell to them upon the partition. Upon the paper containing the detail of the division thereof, the body being in the haodwriting of James Grier White, one of the children, is the following endorsement: “We whose names are annexed are satisfied with the within division of property, October 6, 1829.” This is signed by James G. White, William M. De-Lorme, Mary Ann DeLorme, J. P. Bossard, Charlotte Bossard and Margaret B. White, of whom Charlotte Bossard and Margaret, now Mrs. Hale, are complainants.
    Joseph B. White, died on the Slst day of December, 1852, and this bill was filed on the 15th October, 1853, by the four children of Mr. White, who survived Mm, and who claim that they alone are entitled, as such survivors, to the sixteen slaves embraced in the deed of 2nd February, 1815, and the increase.
    They seek to make the estate of Joseph B. White responsible to them for the slaves (parcel of the said sixteen), allotted upon the partition made in 1829, to James Grier White and Mary Ann DeLorme, both of whom died before Joseph B. White, but not until they had attained twenty-one years and married. I am with the complainants as to the meaning they impute to the deed of 1815, and hold that only such of the seven children of Joseph B. White as survived him, were entitled to take under the deed ( nevertheless, they have concluded themselves by the division of 1829, those who were parties, and have ratified it by their subsequent conduct; and the minors Joseph B. White, and Anthony White, who since coming of age, have retained the benefits of the partition. They claim that they are not bound by their assent to the partition made in 1829, because they were at that time ignorant of the existence of the deed of gift made by their father in 1815.
    The defendant insists that it is not enough for the Complainants to allege in their bill, want of notice, and that the doctrine, which throws upon the defendant the burthen of proving notice on the part of the complainants is confined to cases of fraud, where the nondiscovery of which, until within four years before bill filed, is relied upon to prevent the operation of the Statute of Limitations., I think the rule has a wider application, and embraces the case before me.
    But then the defendant is not bound to prove notice by demonstrative evidence. It was so ruled in McLure vs. Ashy 
      7 Ricb. Eq. 430. Joseph B. "White who might have shown it, is dead, so also is the trustee, Leonard White. The same amplitude of proof is not to be expected as when the principal parties to the transaction were alive.
    I am of opinion that the proof of notice of the deed of 1815, is abundantly sufficient to refute the allegation of the bill. The father had no motive to conceal the gift to his children; he had no temptation to do wrong. He had put. concealment out of his power by delivering the deed to his kinsman, who by becoming trustee assumed tbe duty of guarding the rights of the cestui que trusts. He.had caused the deed to be forthwith registered in the office of Mesne Conveyances, and although this registration was not constructive notice, it negatives the idea of concealment, and adds to the probability that the existence of the deed was known. Why if he was actuated by. selfish or fraudulent motives did this parent.add so much of his own property in the division made in 1829 ? The papers show that he added more than fifty per cent, to the value of the negroes and their increase embraced in. the gift of 1815, and that each of those complainants received more than he would have got if the partition had been confined to the negroes in the deed of 1815 and their increase, and distributed, among these four who claim the whole as survivors.
    What makes the presumption of notice conclusive, is the discrimination made in the partition of 1829, between the slaves contained, in the deed of 1815, and those then added. There is an aggregation of the value of the one set of negroes, and then of the other.
    But why were the complainants called upon to say that they were satisfied with the division ? Is it not strange that they should be called upon to assent to a gift from their parent ? This could not have arisen from any inequality in the shares, for upon the face of the paper the shares were equal. The moral probability that the parties bad notice in 1829, of the deed of 1815, is too strong to be resisted, and twenty-four years bave elapsed between tbe date of tbis family arrangement in October, 1829, and tbe filing of tbis bill in October, 1858. But it is alleged, that some of tbe complainants were not sui juris at tbe date of tbis settlement in October, 1829, though none allege ignorance of it. Joseph and Anthony were not quite of age, but they confirmed tbe division by receiving and enjoying their allotted parts after they attained their age, and from thenceforth until tbe filing of their bill. Mr. "White gave his son Anthony the n'egro Hagar to make up his deficiency in the division. He received her after he came of age. In like manner, Joseph received Bristor from the donor, to make the partition more satisfactory to the latter. Joseph carried his negroes to Tennessee. Mrs. Bos-sard and her husband received her share and she submitted to a settlement of the negroes.
    It is objected that Mr. White assumed authority and dominion over the negroes after the division in 1829, by causing a trust deed to be executed, varying the character of the estate she would have taken under the deed of 1815. There is no proof but that this was done with her consent, besides the deed of 1815, required a settlement to her sole and separate use.
    The complainants cannot be allowed to proceed against the estate of the life-tenant. The partition of 1829, was as much their act as his. They ought to have brought before the Court the representatives of those, who, not being among the survivors of Joseph B. White, received shares to which they were not entitled. They were offered leave to take an order to make them parties. This they declined. The complainants have received satisfaction for any just claim they had against the estate of tbeir father. In the language of the books, satisfaction is defined in equity, to be the donation of a thing with the intention express or implied that it is to be an extinguishment of some existing right or claim of the donee. It usually arises as a matter of presumption, when a man under an obligation to do an act, does that by will, wbicb is capable of being- considered as a performance or satisfaction of it, tbe thing performed being ejusdem generis with that which he had engaged to perform. Story Eq. § 1099. Let the bill be dismissed, and it is so ordered.
    The plaintiffs appealed, and now moved this Court for a decree in conformity with the prayer -of the bill on the grounds:
    1. Because, his Honor, it is respectfully submitted, erred i-n holding that the evidence was sufficient to show notice to the plaintiffs of the deed of 1815.
    2. Because, the plaintiffs offered to prove by a member of the family, facts and circumstances tending to strengthen the allegation by-plaintiffs of want of notice ; to wit: that said witness had never heard from Joseph B. White, his grandfather, or from Leonard White, the trustee, of the deed of 1815, until after the donor’s death, though, he (the witness) had opportunities from intercourse, to have learned such facts. That the witness had come to a knowledge of the existence of said deed, by information of said trustee, which was communicated, whilst said witness was in search of a paper of a different character.
    8. Because the plaintiffs by his Honor’s decision, were cut off from proving, by William M. DeLorme, a party to the (so-called) partition, or division of 6th October, 1829, the fact, that no mention was made of, or allusion had in said partition of 6th October, 1829, by the said Joseph B. White, to the deed of 1815, and that the witness, acted on that occasion, without knowledge of said deed. All, of which the plaintiffs aver, they could have proved by said witness, had it not been for his Honor’s expressed opinion of no necessity for such proof. Herein plaintiffs say they were surprised when the decree was pronounced on the ground of presumptive evidence of notice of said deed.
    4. Because, without plea of accord and satisfaction, the Court, should not of its own motion, dismiss the bill of plaintiffs, if equity for plaintiffs appears upon the face of tbe pleadings, the bill having been answered on its own merits, and no proof of intent of satisfaction (technically) being proved.
    5. Because, James Gf. White and William M. Delorme (and wife) being parties to the (so-called) partition of 1829, were not necessary parties to the bill.
    6. Because, the doctrine of implied satisfaction does not apply to the case as made by the proof, and there was no evidence of expressed intention that the sixteen additional negroes should be received in satisfaction and the answer on that point was not evidence, inasmuch as it was not responsive.
    7. Because, the proceedings of October, 1829, were between trustee and cestui que trusts (the latter not informed of their rights) and in such case, satisfaction is not to be presumed, inferred or implied.
    8. Because, the law presumes a gift by the father when he allows his own property to go into his child’s possession and not a purchase or satisfaction of his child’s rights, or interests in other property.
    9. Because, in order to rebut the presumption of implied satisfaction, the plaintiffs offered to show, that the negroes embraced in the division of 1829, were most of them of the estate of Judith, the mother of plaintiffs; and as to a few others, were substituted in place of negroes originally belonging to plaintiffs’ mother, and which were retained by the ' donor; that the donor was at the time the owner of a large estate, real and personal, that the children, named in the deed of 1815, were hi's only children; that he never had other children, and that he owned at the time of his death,' some seventy-five or eighty negroes, other personalty of considerable value, and real estate (besides the plantation which he devised to his wife for life,) which he gave to his wife absolutely, and which will ultimately go to strangers to his blood to wit: the children of defendant by a prior marriage; all which testimony, his Honor overruled as irrelevant.
    Richardson, Spain, for appellants.
    
      Be Saussure, Moses, contra.
    
      
       The following is a copy of the deed:
      The State op South Carolina,
      This indenture, made the second day of February, in the year of our Lord, one thousand eight hundred and fifteen, between Joseph B. White, of Sumter District, in the State aforesaid, of one part, and Leonard White, of said District and State aforesaid, of the other part; witnesseth, that the said Joseph B. White, for and in consideration of the love and affection which he hath and boareth unto his seven children, viz: Mary Ann, James Grier, Charlotte, Emily, Eliza Margaret, Joseph and Anthony; and also in compliance with a request of Judith White, his late deceased wife; and for their better support and maintenance; and also for and in consideration of five shillings to him in hand paid by the said Leonard White, at and before the sealing and delivery of these presents. Hath given, granted, bargained, and sold, and confirmed, and by these presents do give, grant, bargain, sell, and confirm, unto the said Leonard White, the following slaves, named Moses, Big Sue, Big Phillis, Big Yannaky, Little Sue, Minda, Drusilla, Phebe, Lizzy, Sary, Flora, Sally Jethro, Kate, Lick and Venus; to have and to hold the said sixteen slaves before named; together with the future issue and increase of such of them as are females, unto tho said Leonard White, In Tmst, for the sole and separate use of the seven children before named; Nevertheless, he, the said Joseph B. White, reserves a right to the use of the aforesaid sixteen slaves, and the increase of such of them as are females, during the term of his natural life; but notwithstanding they shall not be subject to his debts or contracts; and from and immediately after his death, to be taken, in trust, by th*e said Leonard White, and as the children before mentioned arrive at age, or marry, at which time the said negroes, and their increase, to be equally divided between them, or the surviving ones of the seven before mentioned, share and share alike; freed and discharged of all further and other trusts or limitations, to be held by them and each of them, their and each of their executors, administrators and assigns.
      In witness whereof, the said Joseph B. White to these presents have hereunto set his hand and seal, the day and year first above written.
      JOSEPH B. WHITE. [l. s.]
      Signed, sealed and delivered in the presence of
      Henry Britton,
    
   The opinion of the Court was delivered by

DargaN, Ch.

It will not be necessary for me to consider seriatim, all the. questions that have been raised on this appeal, or discussed in the argument. It will be sufficient for me to remark in a brief way, on the grounds, upon which the decree of the Court will rest.

I am not aware, that there is any difficulty, or doubt as to any legal principles involved in the case. The deed of Joseph B. White the elder, of the 2d February, 1815, is confessedly legal as to the form, and the manner of its execur tion, and perfectly legitimate as to the purposes which were intended to be accomplished by it. And it should now be enforced by the decree of this Court, if there be nothing ex post facto, which has superseded or defeated it.

In the first place, speaking for myself, and not for the Court in this particular, I concur with .the Chancellor, who beard tbe cause on circuit, in tbe construction wbicb be bas given tbe instrument, as to tbe question of survivorship. The donor, Joseph B. White, in consideration of the love and affection which he bore to his seven children then living, namely, Mary Ann, James Grier, Charlotte, Emily, Eliza Margaret, Joseph, and Anthony, and in compliance with the request of his deceased wife Judith White, and for the better support and maintenance of his said children, and for a nominal pecuniary consideration, conveyed to Leonard White, sixteen slaves by name; in trust for the sole and separate use of the1 said children. Here, the donor declares that he reserves the use of the said slaves and their increase during his natural life, "and from and immediately after his death to be taken in trust by the said Leonard White, and as the children before named arrive at age, or marry, at which time, the said negroes and their increase to be equally divided between them, or the surviving ones of the seven before mentioned, share and share alike,” &c. Taking all the parts of this deed together, the construction which I would give it, and it is the only one which it admits of, is that the donor reserving to himself a life estate in the slaves, conveyed them to Leonard White, in trust, at his death for his seven children (all of whom were then infants,) and to be equally divided among them or the survivors of them ; with authority to the trustee to divide and allot to each one his or her share as they respectively attained the age of twenty-one years, or married. In my opinion only those who were survivors at the termination of the life estate were entitled to take. Evidently the testator contemplated his own death before all his children should marry or attain the age of twenty-one years. And hence the provision for the partial partition of the property, as they respectively attained the age of twenty-one years or married. Each one of the children, attained the age of twenty-one years in the lifetime of their father. All of them married except Emily White. Sbe and Mary Ann, wbo after tbe execution of tbe deed, intermarried with William M. De Lorme, and James Grier White, predeceased tbe donor. Charlotte Bossard, Eliza Margaret Hale, Joseph B. White and Anthony White survived the death of Joseph B. White, (the donor,) which occurred on the 31st December, 1852. These survivors, and Samuel Hale, the husband of Eliza Margaret, filed this bill on the 15th October, 1853, against Maria H. White, the widow and executrix of Joseph B. White, claiming, that they alone, as the survivors, are entitled to the negroes mentioned in the said deed, and their increase; demanding a discovery and delivery of such of the negroes or their increase as remained in the possession of the said Joseph B. White, at Ms decease, and a discovery and an account of such of them, as went out of his possession in his lifetime by gift, sale, or otherwise.

Upon the question of survivorship I shall add no more. The remárks I have already made as to the plaintiffs’ rights as survivors are my own speculations. Erom the view which the Court has taken of the case, it has become unnecessary to decide, or discuss that question.

. None of the negroes conveyed. by the deed of 1815, or their issue, remained in the possession of Joseph B. White, Sr., at the time of his death. As far back as the year 1839, they and their increase had all gone into the possession and enjoyment of the then six living donees under the deed, in equal shares; Emily, who was then deceased, receiving no share. The complaint now is, that the present plaintiffs as survivors are entitled to the negroes, which in that division were allotted to Mrs. De Lorme, and James Grier White, or to an account from the estate of the tenant for life for the value thereof. The plaintiffs have not made the representatives of Mrs. De Lorme, and of James Grier White, parties to these proceedings, as I incline to think they should have done. It has been decided during this term, that where the tenant for life sold a negro to a purchaser with notice, by whom tbe negro was removed from the State, both the life tenant, the vendor, and the purchaser with notice were liable to the remainder-men for the full value of the negro; and as between the tenant for life (the vendor) and the purchaser, the former was primarily liable. But where the property is still within the jurisdiction of the Court, and subject to the claim of the remainder-man, it is not so clear, that he should not resort to the property itself in the hands of the purchaser. Cannot the tenant for life, sell or give his life estate, if it be done without collusion or fraud, and the property not be eloigned from the jurisdiction of the State, without subjecting himself to liability as for a breach of trust ? But let that pass.

It is not disputed that Joseph B. White, Sr., about the 6th October, 1829, relinquishing his life estate, caused all the negroes conveyed by the deed of 1815, and their increase amounting in the aggregate to forty-nine in number, and sixteen slaves of his own, altogether sixty-five, to be fairly and equally divided among his six children then living; Emily alone being at that time dead. The children of Joseph B. White, Sr., these plaintiffs included, then went into the possession and enjoyment of their respective shares, and have so continued to the present time.

If these parties were then sui juris, and aware of their rights under the deed of 1815, the claim set up by them in this bill would be preposterous. But two of them were at that time under age, (Joseph and Anthony, I believe,) and all of them say, that, when they accepted their respective shares in that division, they were entirely ignorant of their rights under the deed of 1815, and even of its existence until after the death of Joseph B. White, Sr. (31st December, 1852.)

It is not denied that if these plaintiffs had notice of the deed of 1815, at any time within four years prior to the institution of tbis suit, they would be concluded by the statute of limitations. But they averred want of notice in tbeir bill, and according to a well séttled principle of our Court, tbe burthen of proving notice, devolved upon the party who affirmed it. And now the question of fact comes up, and it is the great and most difficult issue of the case, had these plaintiffs within the time intimated, notice of the deed of 1815 ?

I premise, that after so great a lapse of time, from 1829 to 1853, (twenty-four years,) and after the death of the party whose estate is sought to be subjected, very strict proof could not be reasonably expected or required. Indeed, why may not the lapse of twenty-four years raise a presumption of notice? That lapse of time raising a presumption of almost any fact necessary to quiet title.

But I proceed with the proofs showing notice. There was no fraud. The idea of fraud is altogether excluded. The advantages were all on the other side. Joseph B. White surrendered his life estate, which he might have retained to the day of his death, which would have been for twenty-four years. What motive was there for concealment ? In addition to this, he gave and divided at the same time, among them, sixteen more negroes of his own, to which they at that time had no claim either present or future. What advantage did Jos. B. White gain in that transaction ? How did it advance his interest ? His office, on the occasion, was to give and surrender, theirs to receive. The falling in of the remainder was anticipated by twenty-four years, besides the sixteen negroes that were included in the division. What did the children lose by the anticipation of the time of division ? Merely the chances of survivorship. (If indeed that construction be correct, which admits of great difference of opinion.) On the supposition, that these claimants would have been entitled to take as survivors, in that case, they surrendered the chance of their being the survivors at the termination of the life estate, against tbe equal chance of those who were deceased at that time being the survivors. The chances were equal, and the mutual surrender of chances was a fair and full consideration ; and it was an arrangement which any contingent remainderman would have accepted to say nothing of the sixteen additional 'negroes brought into the division. What motive then was there for the suppression or concealment of the deed of 1815 ? Why should it not have been brought forward, and made the basis of the arrangement ? And if it had, who can doubt that an arrangement, so beneficial to the children, would have been accepted by them ? There could have been no dissatisfaction at this partition. If there were heart-burnings, they were not on this account. The old man had married his third wife, and this formaPdivision imported to them that this' was all they were to receive of his estate, as it has actually turned out to be. “Sine illoe. lachrimoe /”

Another fact tending to show notice, is the registry of the deed in the office of the register of mesne conveyances. It is true that the registry of no deed not required by law to be recorded, operates as implied notice in any case. The implied notice arising from the due registry of a deed is equivalent to the most positive notice. But certainly the registry of a deed not required by law to be recorded, rebuts all idea of concealment; particularly where the original is delivered into the hands of another person who has consented to act as trustee; and who is the lawful custodian of it. The registry of a deed, under these circumstances, for so long a time, and at so early a period after its execution, and where the register’s office is in the immediate vicinity of the parties complaining, may surely be regarded as a circumstance not of itself sufficient, but combined with others to show notice.

There is another fact of much significance on this question of notice. The sheet of paper on which the particulars of the partition were stated has been preserved, and has been introduced in evidence. This paper, besides showing tbe care with wbicb equality was sought, and even-handed justice done in the division, shows this further fact: that there were two sets of negroes divided on that occasion: first, all the negroes and their increase covered by the deed of 1815; and then the sixteen slaves which Jos. B. White, Sr., at that time gave to his children. From the indications of this document, Jos. B. White, Sr., may fairly be presumed to have said, “ here are the negroes to which you are entitled at my death; I surrender to you my life estate, and now divide them equally among you. And here are sixteen more, which I now give you, and divide them- also equally among you.” Let it be remembered, that all Joseph B. White’s children but two, were, at that time, of age, and those two not far from it. Was it not calculated to awaken their attention and inquiry ? Would they not naturally have asked, “ why this two-fold division ? why this separation of the negroes into two lots ?” The easiest and most simple mode would have been to throw all the negroes into one lot, and to have made one division. The manner in which the division was effected was calculated to excite attention, and to elicit inquiry. And if they had enquired, they would have made the discovery, the want of which they now complain of. I do not doubt that they did so; that the inquiry was then made, and the explanation then given'; if indeed the fact was not well known before. Here was a division in the first place, of all the negroes embraced in the deed, and their issue. And then there was a division of sixteen more negroes, belonging to Jos. B. White, himself. Here was a very strange coincidence, if the parties were not proceeding under the deed of 1815.

Upon the statement containing the particular’s of the partition, all the donees under the deed who were of age, including William M. DeLorme, who had intermarried with Mary Ann, and John P. Bossard, who had intermarried with Charlotte) signed an acknowledgment in writing, in tbe following words, namely: “we, whose names are here annexed, are. satisfied with the within division of property, October 6, 1829.” This formality was strangely out of place, if the parties supposed that they were dividing negroes which were then, for the first time, given to them. But it is perfectly natural, consistent and appropriate, if it be supposed to relate to negroes, t'o which the parties in the division had a pre-existing right, and for which Joseph B. White, Sr., was responsible at the termination of the life estate. The transaction is inexplicable on any other supposition. From all these circumstances combined, without doing violence to any part of the evidence, it may be fairly inferred, that the parties have yielded up their right of survivorship, under the deed of 1815; and if not so, that they had notice of that deed, and having acquiesced for so long a time, their claim has become stale, and one which this Court will not enforce.

In addition to this, the Court of Equity is always reluctant to disturb and open family settlements, more particularly old family settlements; more particularly still, in cases where the parties principally to be affected by them are dead, and cannot answer and explain. In this instance, both Jos. B. White, Sr., whose estate is sought to be made liable, and Leonard White, the trustee, another important actor in the transaction, are dead. Their voices are silent in the grave. They cannot speak or explain. To disturb and open important and formal family .settlements, made twenty-four years ago, in which they were principal parties, would be to grope in the dark after justice, and injustice would be more likely to be done. One of the consequences of this delay is, that perhaps things cannot be brought back to the statu quo. If the proceedings had been earlier, and the representatives of Mrs. DeLorme and of James Grier White had been brought in, equal justice could have been done to all.

At the date of the partition, on the 6th October, 1829, two of tbe children of Jos. B. White, namely, Joseph B. White, Jr., and Anthony White, were not of age. But though infants in law, they were not children of tender years. They were in esse in 1815. They were the children of Jos. B. White, Sr., by his first wife, and he was at that time again married. The youngest of the two must have been seventeen or eighteen years of age. It is probable that they understood the transaction as well as those who were adults. They participated in the division. They got their full share, and have been in the enjoyment of it ever since. When an infant wishes to avoid his executed contracts and settlements on the ground of infancy, he must proceed within a reasonable time after he has attained his majority, and after he has had notice of his rights. An unreasonable delay after the removal of the disability, amounts to acquiescence, and acquiescence is affirmation. All the circumstances which I have relied on as sufficient to raise a presumption of notice to the adults of the deed of 1815, in my judgment, operate with equal force in raising a presumption of notice to the infants. They have 'had the same opportunity of knowing their rights and of asserting them by suit, that the others have had. They must have been of age by 1838 or 1834, and twenty years afterwards, or thereabout, they filed this bill. It is too late. The claim is stale. Besides, it is subject to the bar of the statute of limitations, which is pleaded, unless there is fraud. Want of notice does* prevent the statute of limitations from running whei'e there is no fraud. And I do not see, in this case, the slightest evidence of fraud.

It is ordered and decreed that the circuit decree be affirmed and that the appeal be dismissed.

DuNkxn and AVasdlaw, CO., concurred.

Johnston, Ch., also concurred, although absent at the delivery of the opinion.

Appeal dismissed. 
      
       Does not prevent. Qu?
     