
    James D. Murdock et al. v. Robert H. Hughes et al.
    In 1818, a widowed mother purchased a slave, partly with funds of her own, and partly of her children, and received the slave into her possession, .and in 1825, the mother having married again, her husband conveyed the slave and her increase to the children of the second marriage ; in 1833, the children of the first marriage became of age, but took no steps to assert their rights to the slaves until 1841: Held, that they were barred by the statute of limitations.
    Where a purchaser of property buys it with the money of another, the trust thereby created, in favor of the. party whose money is thus used, is an implied and not an express one, and is subject to the statute of limitations ; continuing, express trusts forming the only class protected from the operation of the statute ; where, therefore, the trustee denies the right of his cestui que trust, and asserts an adversary claim, it is an abandonment of the-fiduciary character, and the statute of limitations will commence running from that day, if there be no disability as to the other parties.
    On appeal from the vice-chancellor’s court, at Fulton: Hon. Henry Dickinson, vice-chancellor.
    Robert H. Hughes and others, complainants, allege in their bill, that Thomas Hughes, the father of same, and grandfather of the rest of complainants, died in Alabama, in 1814, leaving considerable personal property and valuable real estate; and that his widow, Nancy Hughes, was appointed administratrix of the estate, and guardian of the children, and took into possession all the real and personal estate, and enjoyed the rents and profits of the same, for herself, until 1818 ; and afterwards for herself and John McVay, whom she married in that year; that with the labor of her children, (the complainants,) and with the rents of the lands, in the year 1818, and before her marriage with McYay, she bought a negro girl, Julia, of one John Wilborne, taking the bill of sale, for the same, to herself and the-complainants, as heirs of Thomas Hughes ; that at the time of purchase, she told Wilborne that the negro was purchased with funds belonging to the estate of said Thomas Hughes, for the use and benefit of complainants and herself; that the bill of sale was lost or destroyed. At the time of purchase, it was understood and agreed upon by complainants and herself, that said negro and her increase were to remain with said Nancy, to assist in raising and educating complainants, to support her in her old age, and after her death to be divided between complainants and herself; that she had two children by her marriage with McYay, one of whom was dead, and the other, Belvidere, had married James Murdock, one of the defendants; that the negro girl Julia was then dead, but had left several descendants, mentioned in the bill, who are severally supposed to be worth the sums therein mentioned; that during the minority of complainants, said McYay, without the knowledge or consent of complainants, made a deed of gift of said negroes to the two children which he had by said Nancy; that the deed was recorded in Madison county, Alabama, and shortly thereafter, McYay removed with his wife and complainants to Lawrence county, Alabama; and afterwards, in 1837, to Itawamba county, Miss, where he died in 1841; that after the death of McYay, Murdock took the negroes out of the possession of Mrs. McYay; that McYay both before and at the time of his marriage, well knew that the girl Julia and her increase belonged to complainants, and that she had been purchased with the funds belonging to them, as heirs of Thomas Hughes; that complainants were ignorant of the deed of gift, until after the death of McYay; at the time of its execution they were minors, under the control and guardianship of their mother, and that they were informed both by their mother and McYay that the girl and her increase belonged to them, and that no obstacle would be thrown in the way of their possession of the same, after the death of their mother; that Murdock, without any legal or equitable title, had taken the negroes into his possession, and complainants believe that he will sell or dispose of them so as to defeat the claim of complainants. The bill prays for writs of ne exeat and general relief. An amended bill states that since the institution of this suit, the said Nancy had intermarried with one Duke, states the substance of the original bill, and prays for an injunction restraining Murdock from carrying off the negroes.
    The original bill was filed on the 13th of December, 1841.
    The answer of Mrs. McVay, admits the death of Thomas Hughes, her administration and guardianship; of her intermarriage with McVay; and states that there were one hundred and twelve acres of land and some personal property, belonging to said estate; that she administered the personal estate, and that the sum of $158 98| remained in her hands for distribution, in April, 1820, when she presented her final account. That by the law of Alabama she was entitled to, and received one-third part of the personal estate; admits that she resided upon and cultivated the land, until William Hughes arrived at the age of twenty-one years, when she gave up to complainants the land, and they disposed of it, she never having had her dower assigned. She admits the purchase of the negro Julia for $600, and states that she executed her note for $200, part of the consideration payable in twelve months, which sum was paid by McVay after the marriage. She denies positively that the girl was bought with the funds of complainants, or for their use, or that the bill of sale was taken to her and complainants, but states that it was taken to her alone. That she is apprehensive that the bill of sale has been destroyed by complainants, and that McVay paid to complainants, as heirs of Hughes, their distributive shares, ranging from $30 25 to $36' 00, as they severally arrived at age, taking their receipts therefor, and which are filed with the answer, as exhibits; and that the rents and profits of the land, with even her own labor, were insufficient to educate and support the complainants, and that McVay, even after the marriage, paid several debts incurred for them, amounting to $400, in addition to the $200 before paid. She denies that there was any understanding that Julia and her increase were to be divided between her and complainants. She admits that the deed of gift was executed in 1825, to her two daughters, by McVay, and states- that it was recorded ; and that, according to her belief, complainants knew of its existence. Admits that McYay, at his death, in June, 1841, left the negroes in possession of herself, except two who had been delivered to Murdock, in 1837; that the balance of the negroes were delivered to Murdock, and taken into his possession immediately after MeYay’s death, where they now remain. Denies that McYay, before, or at the time of his marriage, knew that the negro girl belonged to complainants, and had been purchased with their funds, but the reverse thereof; that said negro had been purchased by her, by the consent of McYay before the marriage, and that he loaned her $100 to assist in making the first payment, and that after the marriage he paid the balance of the purchase-money with his own funds, and not with the funds of complainants. Denies that she and McYay ever informed the complainants that the negroes belonged to them as heirs of Thomas Hughes, deceased. That Robert H. Hughes, who filed the bill, and was one of the heirs of Thomas Hughes, attained his majority on the 8th of April, 1833.
    Murdock, in his answer, positively denies that he ever intended running the negroes. States that all of the complainants were of age, as early as 1833, more than six years before filing this bill, and insists on the statutes of limitations.
    One exhibit, filed with the answer, shows that at the final settlement of the estate by Nancy McYay, in 1820, as adminis-tratrix, there were in her hands for distribution the sum of .$158 98a.
    John W. Carney states, that he cultivated about 11 acres of the land mentioned in the bill as the property of Thomas Hughes, deceased, at $9 per acre per annum; that James Wil-borne also cultivated it for several years at the same rent, viz. $9 per acre, and that a man by the name of Ross also rented it. Witness paid his second year’s rent in improvements on the place, and Wilborne paid the money for the first year, but made some arrangements for the payment of the rent after that .time; that he saw more than $500 paid in money for rent, and also a large amount of produce, value not known, which was paid to Mrs. Hughes; that she in 1818 purchased the negro girl Julia of Wilborne, for $600, and paid for the same with the money received from the rent of the land and the labor of complainants, $600 from the rents, and $100 from the labor. That he was consulted by Mrs. Hughes when she purchased the girl; she said she wished the negro to be the property of complainants; that the funds with which she paid for the negro belonged to them, and that she was about to marry McYay. The bill of sale was given by Wilborne to her, and so drawn as to vest the right of said negro in complainants; that he heard McYay state that he had no title to Julia; that Mrs. Hughes, about one year after her marriage with McYay, received $200 from South Carolina, which belonged to the estate of Thomas Hughes. This money was changed into Alabama money, amounting to $230, and handed by witness to McYay. On cross-interrogatory he states that funds received from South Carolina arose from the estate of William Scott, deceased, the father of Mrs. Hughes.
    James Wilborne, one of complainants’ witnesses, states, that in 1817, he cultivated 23 acres of the land, at a rent of about $92, payable in corn ; in 1818, 28 acres at $4.50 per acre; in 1819, 6 acres at $9 per acre; and in 1820, 6 acres at $9 per acre; and during all that time the heirs of Hughes cultivated about 20 acres in corn for the support of the family. That he sold the negro girl Julia to Mrs. Hughes in 1818, for $600, $100 was paid in cash, and $300 was paid in the rent of land, and by the complainants picking out cotton at $1.50 per hundred. Mrs. Hughes gave her note for the balance at 12 months, $54 of which was paid by the rent of the 6 acres of land in 1820, and the balance paid by McYay after Mrs. McYay returned from South Carolina. Mrs. Hughes refused to buy the negro unless complainants would assist in paying for her, which they promised to do, and which they did by picking out cotton. Mrs. Hughes told complainants, in the presence of witness, both before and after the purchase, that she only wanted the girl her lifetime, saying that the girl should be theirs. Has heard McVay many times say that the girl did not belong to him, that he had no right to her, &e. He did not recollect how the bill of sale frwas drawn ; at the time of its execution there was a talk about its being so drawn as to give the girl to Mrs. Hughes and her children, but does not recollect whether it was so drawn.
    Elizabeth H. Anderson, and S. H. Rives, complainants’ witnesses, state, that they recollect the purchase of the girl Julia, and they understood from Mrs. Hughes, that complainants’ land was rented to pay for her, together with other means belonging to them to the amount of $100. Heard her say that she purchased said girl for the benefit of complainants. Heard McVay say that he would have nothing to do with the negroes, and also heard Mrs. McVay say she wanted to go to South Carolina to get funds to pay for the negroes, and that McVay should have nothing to do with them, and no claim to them.
    William Thom, complainants’ witness, states, that he knows the land of the estate; that Mrs. Hughes informed him, that from 1818 to 1825 it had been cultivated by McVay, Wilborne, Hathcock, and Lewis, and in 1825 by McVay and complainants. She sold her dower right to William Hughes, one of complainants, in 1825; he heard her state that McVay never paid one dollar for the negro Julia, but that the rents of the land, the labor of the complainants, and some two hundred dollars which she received from South Carolina, and which belonged to her first husband, Thomas Hughes, deceased, had paid for the girl; that she purchased the negro for the use of the complainants; he had heard McVay and Mrs. McVay disputing about the treatment of their negroes, and frequently heard Mrs. Mc-Vay say that the negro Julia and her children belonged to Mrs. McVay and complainants, and that there was an agreement between him and Nancy before their marriage, that she was to keep the negroes, only he was to use them during his life time, and that they did not belong to him.
    Adolphus A. Hughes, complainants’ witness, states, that he knows the land, that it was rented to different persons, and that McVay and wife sold her dower interest to William Hughes. Has heard Mrs. Hughes say, that she bought Julia with the funds belonging to the heirs of Thomas Hughes, and that complainants would get her; heard McYay state, that Julia did not belong to him but to Mrs. McYay. Heard Mrs. Hughes say that she received two hundred dollars from South Carolina, and used it in the last payment for the negro.
    James Hughes,' complainants’ witness, states that he has heard the defendant say, that she sold her dower interest to William Hughes, and that she had bought the negro girl Julia for complainants, and with the funds of Thomas Hughes, deceased. Has heard McYay say that he had no right to Julia and her children, but that they belonged to Mrs. McYay.
    James Falkenburg, complainants’ witness, states, that he lived with Murdock, one of the defendants, in 1838, and that the five oldest of the negroes were in his possession for eight or nine months, in that year, under a deed of gift, as he stated, from John McYay, the father of his w.ife. Heard Murdock say, before the Hugheses should have said negroes, he would run them to Texas, and also heard him say, that he had persuaded his wife to move to Mississippi, that he might get the negroes into his possession, and hold them long enough to let the statutes of limitations bar the right of complainants.
    John H. Thom, complainants’ witness, states, that he has heard McYay say, that Julia was bought with the means of the estate of Thomas Hughes, deceased, and that complainants would some day get her and her children, but that he expected they would not interrupt them until his death, and the death of his wife. Has heard both McYay and his wife say that they had agreed before marriage that each should retain the property belonging to either before marriage, that Nancy should keep Julia and her increase until complainants arrived at age, then they should have them. Heard both McYay and wife say that Julia was bought with the funds belonging to the estate of Thomas Hughes, and for complainants.
    John Beacham states the value of the negroes to be about three thousand dollars. States that the negroes Abram and Amanda have been in the possession of Murdock since 1837, and the balance since the death of McYay; that he heard one of complainants say about 1S33 that he would have the negroes, and also thinks he heard one of them talk about the deed of gift about the same time.
    John Hathcock states, that he heard Mrs. McVay, after her marriage with McVay, state that she purchased the negro girl Julia, and that McVay paid for her after the marriage. Heard McVay say the same thing. t Knows nothing about the land or the rent. The reason assigned by McVay and wife to witness for making the deed of gift was that Mrs. McVay had purchased the negro before the marriage, that McVay paid for her afterwards, that there were two sets of children, that they were disputing about the negro, that to settle these disputes the settlement had been made upon the two children, they being young and uneducated. Complainants lived at McVay’s, and went to school. Does not know anything about their education.
    Lancaster McVay, defendants’ witness, states, that defendant Nancy purchased the girl in 1818 for six hundred dollars. Previous to the purchase she consulted with John McVay, father of witness, who told her that he would assist in paying for the girl, as she, Nancy, said she was not able to pay for her; said Nancy paid some of the purchase-money, and McVay paid two hundred dollars and something more, as witness believes. The bill of sale was made to Nancy Hughes and heirs; that all the complainants had full knowledge of the deed of gift; he conversed with all on the subject. That he is the son of John McVay, and that he was about 11 years old when the ■negro was purchased, and never heard either John or Nancy McVay ever intimate that the girl belonged to complainants; ■he also stated the ages o'f the different complainants.
    Hugh McVay, defendants’ witness, states, that the girl Julia was purchased in 1818 or 19, for $600. The purchase-money was obtained from John McVay, he borrowing $200 for that purpose. That bill of sale was given to Nancy Hughes and her heirs ; that the complainants knew of the deed of gift, and ■they stated that they would set it aside. The oldest complainant was born about 1800, and the youngest was about six years •old at the time Nancy married McVay. Witness was bom Nov. 1798, and is son of John McVay. On cross-interrogation states, that he never heard McVay say that Julia belonged to Nancy and complainants. Has heard Nancy say, when angry, that complainants should have the negro, but never heard McVay say that they should.
    This is all the testimony. The vice-chancellor decreed one third part of the negroes to Murdock, and two thirds to the complainants; and Murdock appealed.
    
      Davis, for appellant.
    1. There is nothing in the case to warrant such a decree.
    The complainants place their right to a recovery in this case upon the grounds that the negroes were purchased with the assets of the estate of Thomas Hughes, and the rents and profits of the land. Their rights, springing from this source, they will be confined to, since they have thus asserted them, and cannot be allowed to have a recovery for a different right.
    Was the vice-chancellor warranted in the decree made by him? The.testimony of John. W. Carney will not warrant it, because it presents a state of case different from the one embraced in the bill, and establishes beyond all controversy that the negro girl was purchased with the means of Nancy Hughes, means raised out of her own property and labor, to which she was entitled. By the laws of Alabama she was entitled to one third of the land as her dower, which one third in this instance would have embraced all the cleared land. She was also entitled to the labor of the children she was raising and educating, on her own land, and with her own means. Then take it for granted that the negro was purchased with the rents and profits of the land, and the labor of the complainants whom she was supporting and educating, the purchase is only sjiown to have been made with her means, and not the complainants, and that she had the right to make whatever disposition of her she pleased.
    2. The current of the testimony shows the bill of sale was taken in the name of Nancy Hughes and her heirs, this is the usual manner of taking bills of sale, and cannot therefore argue anything against the defendants. Nor does the mere fact that the said Nancy was often heard to say that she intended the negro for her children by Hughes or any one else, make it obligatory on her to do so.
    An effort has been made to make it appear that the $200 obtained in South Carolina was applied to the payment of the note for that amount given to secure the last payment for the negro girl Julia; this the testimony of Carney shows to be untrue, while that of their other witnesses establish it to have been done. Whether so or not, is quite immaterial for the purposes of the complainant, as we establish by this same Carney, that the $200 was a legacy to the said Nancy from her father, and consequently no part of the assets of Thomas Hughes, deceased.
    When we examine the other side of this case, we find the answer of the said Nancy utterly denying every allegation in the complainants’ bill. It is not pretended by the complainants, that these receipts were obtained from them by unfair means; how then do they undertake to say that a part of their means due to them as heirs and legatees went into the negro; had it have been so, they have receipted for the amount, because their receipts purport to be in full of all claims on account of said estate ; until then it has been charged and shown that they did not know of the situation of the money which they say was applied to the payment of said negro girl; their receipt, being in full of all demands, must be final.
    The testimony of Lancaster C. McYay and Hugh McYay fully establish the fact that John McYay did furnish some three hundred dollars of the money with which the negro was purchased, and that the residue was furnished by the said Nancy, out of her individual means.
    
      Word and Walter, for appellees.
    1. The proof clearly shows, that with the rents and profits of the real estate of said Thomas Hughes, deceased, Mrs. Hughes purchased the mother of the negroes now in dispute. This fund belonged to complainants, as heirs of Hughes, and any property purchased with it became in the hands of the guardian trust estate, held for their use and benefit. They can either make defendant Nancy account for the rents and profits, or they can follow the property purchased with the same into the hands of any person having notice of the trust. 2 Kent, 188, and authorities there cited.
    It is however urged, that some allegations in our bill show us not to be entitled to the relief sought, and that we cannot contradict our own statements. It is said, 1st, That the bill states that the negro Julia was bought with the funds of complainants, and that the bill of sale was taken to Mrs. Hughes and complainants, jointly. To this we answer, that Mrs. Hughes was guardian, that she purchased with the funds of her wards, and it is, under these circumstances, immaterial to whom, or how the bill of sale was made. The property is saddled with the trust, and cannot be defeated by any improper action of the guardian.
    2. It is contended that the bill alleges, that at the time of the purchase we agreed with the defendant Nancy, that she should-have the girl Julia and her increase, that the hire and labor of the negroes should be appropriated to the education and maintenance of complainants, and at the death of said Nancy, they should be divided between said Nancy and complainants. It is true that the bill is somewhat unartistically drawn as to this point, and yet it is equally true, that, if such contract did exist, still the same would be disregarded by this court. At the time of the purchase the oldest of complainants was eighteen years old, and the youngest six; and we feel satisfied that this court will not tolerate the odious doctrine, that guardians are permitted to make binding contracts with their infant wards, which are clearly injurious to the’ interests of the latter. It will also be recollected that complainants were very young at-the time of purchase, and could not know or recollect the terms of the contract, and great indulgence will be extended to them-in the statements of their case.
    3. It is said that Mrs. Hughes ought to be allowed an account against her wards, for money expended in their education, &c. A guardian is not permitted t,o. exceed the income of his ward in his support, without an order of court. 1 Howard. The proof, however, shows that the estate of the wards was sufficient to purchase, in 1818, the negro girl, and from that time it became the property of complainants, and could not be sold or disposed of without the order of court to that effect. But it further appears that the rents and profits of the land were more than sufficient to support the wards and their guardian, and also, that the guardian, from 1818 to 1825, enjoyed exclusively the rents and profits of the land. Complainants do not wish to make their guardian account for these rents and profits. They are willing to give these to their mother, but insist upon having the negroes purchased with their funds previous to 1818.
    4. It is contended, again, that certain receipts, given by complainants, and filed with the answer, should bar them. They acknowledge the receipt of complainants’ distributive share of the estate of Thomas Hughes, deceased ; they are given to the administratrix, and in fact can be used by her to protect her as administratrix. And the proof shows this to be the case, for she held $158 on settlement of her administration account, and the aggregate amount of the receipts filed is $161. The slight difference between these sums, is occasioned, doubtless,, by the accumulation of interest on the former amount whilst in the hands of the administratrix, before distribution made. There is not even a pretence that she ever settled her guardianship account. She does not allege it in her answer, and it is nowhere shown by the proof. The rents and profits of the real estate went into her hands as guardian, not as administratrix, and these receipts can be used to protect her in the latter, not in the former capacity. But even suppose the receipts did cover the whole property of the estate in the hands of defendant Nancy, both as administratrix and guardian, they then appear to have been given for a grossly inadequate consideration, and will be disregarded by this court. 1 Madd. Ch. 268; 3 P. Williams, 315, 316.
    5. The statute of limitations is however plead. This de-fence is bad. The proof clearly shows that the negro Julia was purchased with the funds of complainants, by the defendant Nancy. She immediately became trustee as to this girl, and her increase, for her wards, the complainants. The statute does not run between trustee and cestui que trust. Decouche et al. v. iSavetier, 3 Johns. Oh. R. 190; 3 Yer. 201; 2 Dessaus. 53; 1 Yer. 297; 3 Litt. 177; 4 Dessaus. 474.
    6. But again, the deed of gift from McVay and wife, to the defendant, Mrs. Murdock, in 1825, was a fraud upon the rights of complainants, and the statute does not commence running until the fraud is discovered. 1 Madd. Ch. 256; 4 Dessaus. 474; 13 Viner, 542. The proof does not show that complainants had any knowledge of this deed of gift, previous to the death of McVay, in 1841, some two months before the commencement of this suit. The continued and repeated declarations of both McVay and the defendant Nancy, his wife, made from time to time, in the presence of complainants, that the ne-groes belonged to them; that the declarants had no right or title to the negroes; that no obstacle would be set up to the possession of complainants, after their death, were all calculated to lull complainants into a belief that the property was theirs, and to make them slumber upon their rights.
    7. But suppose, for argument sake, that there existed no trust, that there was practised no fraud, still the bar is not perfect. The youngest of complainants did not attain age till 1833. Before the statute of limitations of Alabama could affect their claim, viz. in 1837, the defendants removed to Mississippi. Four years after this the bill was filed. The statute of Alabama did not bar the claim, nor did the statute of Mississippi. 3 How. 258, 264; 3 Johns. R. 263.
    8. The appellees did not complain of the decree below, but as appellants have brought the case to this court; we now insist that this court should give that judgment which the court below should have given, the testimony being all taken, and no new fact to be ascertained. How. & Hutch. 532, sect. 9.
    9. It is insisted that the purchase was made, as shown by the testimony, for the benefit of appellees, and with their funds, and instead of two-thirds of the slaves, the whole of them should be decreed to appellees. The decree of the court below seems to have been made under the impression that Mrs. Hughes, (now Mrs. Duke) had permitted the rents of her dower in trust to go towards the payment of the negroes. But the testimony shows that, in 1825, she sold her dower to her son, William Hughes, and that she used the proceeds in the purchase of a negro girl Mary. She is entitled to claim nothing on this score. And again, she was the guardian of complainants, (the present appellees) and should reap no benefit from confusing the rents of her dower with the rents of her wards. But the proof shows that she received full consideration for her dower; and in fact in her answer she does not set up any claim to dower, but merely says her dower was not- set off to her. It is true it was not, but still she sold her dower interest to her son. Therefore the decree should be, for all the negroes to appellees.
   Mr. Justice Clayton

delivered the opinion of the court.

This bill was filed to recover certain slaves, upon the ground that they were purchased by the mother of the complainants, with money which properly belonged to them. It charges that the bill of sale for the slave, from whom all in controversy have descended, was made to their mother, and to the complainants, as heirs of Thomas Hughes, deceased. In another part the bill alleges, that “it was understood and agreed among all the parties, that their mother should have the slave during her life; and after her death to go to complainants.” Alleges the loss of the bill of sale; the second marriage of their mother; and the conveyance of the slaves by the second husband, to the children of the second marriage. Complainants allege their ignorance of this conveyance, until shortly before the filing of the bill.

The answer denies every allegation of the bill, which could give countenance to the claim of the complainants.

The transaction took place in the state of Alabama, in the year 1818. A good deal of testimony has been taken, and, as might be expected after the lapse of so much time, a great deal of contradiction is involved. Our belief from the evidence is, that half the money, or more, was paid with funds which justly belonged to complainants, and for which they have never received any compensation. This money was derived from the rent of their land. Their mother was administratrix of their father’s estate, and the guardian of some of complainants; but she has not embraced these rents in her accounts. The answer alleges that the rents were expended in the education of the complainants, but there is no evidence in support of it. The account and receipts filed show, that the rents were never paid to complainants.

In regard to the title to the slave, the testimony is still more conflicting. The person who sold the slave, says he gave a bill of sale, but does not recollect its terms. He says farther, that their mother, at the time of the sale, told complainants, if they would help to pay for the negro woman, she should belong to them after her death. One witness says the bill of sale was made to the complainants; and several swear that they have heard the second husband disclaim all title to the negroes; and have heard her say, he should never have them. Several other witnesses prove the bill of sale was made to Mrs. Hughes and her heirs. The deed of gift from McVay, the second husband, to the children of the second marriage, bears date in 1825, and several witnesses swear the complainants knew of it, shortly after its execution. Murdock married the only surviving child of the second marriage. There is a plea of the statute of limitations, and this plea must decide the cause.

It does not appear that the mother ever qualified as the guardian of more than one of the children; and the purchase seems to have been made by her in her own right, not as guardian. If, therefore, any trust were created by the use of their funds, it was an implied trust, and not an express one. Continuing, express trusts form the only class protected from the operation of the statute.

But if there had been a direct and express trust, between the complainants and their mother, the relation was dissolved, when the slaves were conveyed to the children of the second marriage. That was a virtual denial of the right of the complainants, and the assertion of an adversary claim. This was an abandonment of the fiduciary character, and the statute would commence running from that day, if .the complainants were under no disability. The disabilities appear to have all been removed, in 1833, and this suit was not commenced till 1841. See Kane v. Bloodgood, 7 Johns. Ch.; Armstrong v. Campbell, 3 Yerg.; Angell on Lim. 171.

The only possible way to avoid the effect of the statute, would be to hold that the mother had a life-estate, with remainder to the complainants. The allegation in the bill is not direct or positive to this point, but is quite vague and indeterminate. The answer denies everything like it. There is no proof which establishes it in such a manner, as to make it the proper foundation of a decree.

• This is probably a hard case upon the complainants, and they may have been treated with some injustice; but upon the proof made this court is not authorized to give them relief.

The decree will be reversed and the bill dismissed ; but the complainants are to pay only one half of the cbsts in the court below, and the defendants the residue.

Decree reversed, and bill dismissed.  