
    *Sarah Butler et al. v. Matthew Ardis et al.
    
    T^qnity will not entertain jurisdiction of a ease involving- titles to land, where a discovery of titles is not sought, or some other ground of equity relied on. An heir cannot go into equity to demand an account oí' rents and profits, unless some impediment exists to his recovery at law. On questions of fact, the decree of the chancellor is supported as a verdict at law, and will not be set aside, unless manifestly contrary to the weight of evidence.
    The bill stated that the complainants were Sarah Butler, and her children by her last husband John Butler. That in 1781, John Schinholster, first husband of complainant, departed this life intestate, seized and possessed of a valuable tract of land in Beach Island, called the Mount Tract, granted loUlric Schinbolster the 13th of October, 1758, containing 500 acres, occupied by Abraham Ardis in his lifetime, and since his death by his children the defendants. John Schinbolster left at his death three children : Susannah, who married Abraham Ardis, his daughter by a former wife; a daughter named Mary, and a son named William, by complainant. That about eighteen months after John Schinbolster’s death, Sarah married Sherry, and had two children not long after the marriage. Shortly after Sherry’s death, the complainant intermarried with John Butler, by whom she had four children, the present complainants. John Butler died in 1818, intestate. William Schinbolster, son of complainant’s first husband, was John Schinholster’s eldest son, and by the law of primogeniture Inherited the land of which his father died seized. The land was considered his until his death, which took place about 1793 or 1794. In 1790 Abraham Ardis, father of the defendant, was appointed guardian of William, and in that capacity held the land until his death, which occurred in 1810. That the, land had been since that time and was now in the possession of the defendants. The bill further stated that the land was distributable among the, complainants. That there might be no unfavorable impression against the claim of complainants, it was stated that the title to the land *was cast upon during coverture with John Butler, and that in 1801 he sold, as he had a right to do, his interest in the land to Abraham Ardis, who was holding it as guardian or trustee. The deed of conveyance, marked A, was filed. It was stated that if the defendants claimed under this deed, as it was presumed they did, it was void from inadequacy of price and for other reasons. The deed purported to convey the lands of Butler and wife. The bill further stated that Abraham Ardis possessed himself of all the title deeds to the land when he was appointed guardian, and that they were now in his representative’s possession. The prayer of the hill was for a discovery and relief, and account, that the deed alluded to might be set aside as fraudulent, and for partition if necessary. It required Ardis to account for his actings as trustee.
    The answer of the defendants, Matthew Ardis, John Ardis, Casper Naily and wife, Miledge Galphin and wife, and Mary Simkins, stated that they had been informed that there was such a man as J<¿m Schin-holster; but when he died, whether intestate or not, and possessed of what, if any, property, they were quite ignorant. That he might have left the three children mentioned in the bill, viz : Susannah by the first wife, and Mary and William by his last wife; and that Susannah did intermarry with the said Abraham Ardis. That they heard that after the death of John Schinholster his widow did marry one Sherry, and after whose death, she did speedily marry John Butler, and that in 1818, said John died intestate, but they were ignorant whether William Schinholster was the only son of John, and whether lie inherited all his estate previous to 1701, of which they required the strictest proof, so far as it might be intended to affect their interest. That they could not state when William Schinholster died, though they believed it to have been some time after 1794 ; and that so far from ^knowing that the lands were inherited by the said William, they stated that he never was in possession of one acre of it during his life, and therefore not possessed of such an estate as could have descended from him to any one; and that many facts bring them to an unshaken belief, that Abraham never went into the possession of land, either as trustee or guardian of the said William, but so much as he did possess, he did so by purchase in his own right. They admit there was an order of the county court, appointing Ardis guardian, probably for the said William, requiring a bond of £100 penalty; but whether the county court could legally appoint a guardian at all, they were advised was doubtful: and, if it had the power, it could never extend further than to the personal estate, which they strongly inferred from the smallness of the penalty of the bond, &c.; a sum totally inadequate, from the complainants’ statement, to secure so valuable a real estate. That besides they believed, from the intimate acquaintance of some of them, now thirty years old, if the land had been encumbered with any trust they must have heard of it. That he cultivated the land fora long series of years until his death as his own. Indeed one of the defendants heard his father say, he had paid for land twice; and never heard of any trust till he heard of this bill. That as this bill is now brought forward when all the evidences of right had perished, they felt bound to state, that Adam Hiles, the grandfather (uncle) of these defendants’ mother, Susannah Ardis, was in possession of this land a long time before and until his death, and whilst John and William Schinholster were living. That Hiles died in possession, claiming, as they had a right to presume, under a good title. That Adam made his last will, by which all the remainder of his estate, after some bequests, was given to his grand-daughter (niece,) Susannah.
    That, as stated by complainants, John Butler, on the *20th of August, 1801, conveyed all his interest in the land to Abraham Ardis in the most solemn manner; which deed was to be signed likewise by Sarah, the wife of the said John; but she executed another instrument of writing, conveying also all her interest and right. That Sherry likewise had a claim to the land, which they had heard their father Abraham also purchased ; and this was not wonderful, considering the state of the country, the confusion of titles, and the ignorance generally of what was, and was not, a good legal title. That Abraham was scrupulously honest, and notorious for holding his property clear by purchasing up all claims. That twenty or thirty years ago lands sold for one-tenth of what they would bring now; and surely Abraham Ardis was not to blame if he did not give a full price for the land every time he bought it. That the said Abraham had purchased Butler and his wife’s claims, and had been in possession of the land thirty-four or thirty-five years, free of incumbrances, trusts, suits, and adverse claims of all the world. The defendants, after the lapse of such a time, when the evidences of title were lost, or greatly jeopardized, not only insisted on the statute of limitations, but earnestly craved the full benefit of all presumptions arising from so great a lapse of time, to shield and protect them.
    An amendment to the bill was afterwards filed. The amended bill staled, that Abraham Ardis went into possession as guardian, and afterwards purchased or attempted to purchase the land from complainant, a weak and ignorant woman, for a grossly inadequate price. That as guardian he possessed himself of the muniments of title, which were now in the possession of his representatives. That he also possessed himself of considerable personal property which he never had accounted for. The bill prayed for an account and discovery of titles, &c.
    To this there was an amended answer : The amended* answer stated, that the defendants did not pretend that the conveyance of John Butler, mentioned in the amendment to the bill, conveyed to Abraham Ardis anything more than the dower of Mrs. Butler, in the lands conveyed, as widow of John Schinholster deceased ; and that although the defendants, in their principal answer, from a hasty and imperfect view of it, were disposed to regard it as conveying a larger interest, yet that the deed must speak for itself, and that its legal character could not be affected by their representations : defendants therefore denied all fraud inferred from the alleged inadequacy of the consideration given for the conveyance.
    A subsequent amendment was made to the bill : The additional amendment stated, that at the time Abraham Ardis was appointed guardian of William Schinholster, Jun., and took possession of all his property in that capacity, he also possessed himself of the titles, evidences, and muniments of title of and to the land of the said William, and that they were now in the possession of the defendants, or some one of them. That the land in controversy was originally granted to Ulric Schinholster, the father of John, and grandfather of William the younger, in 1758 ; and as it was referred to in the deed from Bulter to Ardis, it was evident that it was in existence and in the possession of Abraham Ardis. That the fire in Charleston, which consumed the land office, destroyed this and all other original grants of that date, which prevented their offering a copy. That at the time stated, Abraham Ardis took into his possession a considerable personal estate, the property of said William, which he had neveraccounted for. Complainants prayed that defendants might make a full discovery of all matters contained in the bill; and more particularly to state, if they, or one of them, had notin their possession the grant to Ulric Schinholster, and what other evidences pertaining *to the land they had; and also that they might account for the and the proceeds which went into the possession of Abraham Ardis, as guardian aforesaid.
    There was a second answer to the thus amended bill. The defendant answering (whose answer was by agreement to be taken for the answer of all the defendants) said, that they knew nothing about the grant to Ulric Schinholster, or of any of the title papers to the land in question. They believed the possession of the ancestor was honest and under good title, and insisted that the complainants should be held to the strictest proof of their title. They knew nothing about the personal property and insisted upon the lapse of time.
    There was also a piece to the jurisdiction. The plea of Casper Naily, Jun., one of the defendants, staled that the defendants’ possession was adverse and in Abraham Ardis’ own right, that the bill contained no ground for jurisdiction but the implied trust which the defendants deny to have existed, and that the complainants had adequate remedy at law.
    DeSaussure, Chancellor. The bill in this case was filed in 1822, and sought relief with respect to a tract of land claimed by the complainants. The brief stated that the bill was for a discovery and relief, and for an account; that the deed alluded to, of the 20th of August, 1801, from John Butler, on behalf of himself and his wife, one of the present complainants, Sarah Butler, to Abraham Ardis, might be set aside as fraudulent, and for partition if necessary; and it required Ardis to account for his actings as trustee. To this bill a plea to the jurisdiction was filed, on the ground that the possession of Abraham Ardis was in his own right, and adverse to the complainants; and that there was nothing in the bill to give jurisdiction, except the charge of an implied trust, which the defendants deny to have existed, and contend that *complainants have a plain and adequate remedy at law. The answers filed arc full, and put the points in controversy, and particularly the title to the land, in issue.
    We must first decide on the plea to the jurisdiction. I have stated in another case, that of Bussy and others v. M’Kic and others {ante, p. 23,) the resolution I have taken and the reasons for it; that in those cases where the jurisdiction is objected to on such reasonable grounds as to excite a doubt, I shall sustain the objection, in order to obtain the judgment and guidance of the court of appeals, as to what is really within the jurisdiction of this court, and what is not so, to which I shall scrupulously conform. In the case now before me, the grounds taken to support the jurisdiction of the court are chiefly the same as those taken in the case of Bussy v. M’Kie, to wit: partition, an account for rents and profits, discovery, the delivery of the deed of 1801 to be cancelled, being obtained by fraud.
    The three first are subject to the objections taken to the case of Bussy v. M’Kie.
    With respect to delivering up the deed on account of fraud in obtaining, I do not perceive any ground for that charge. Mrs. Buffer had the right of dower in the land, and the deed recites that right, and pro-fosses to convey her rights, and the consideration of §500 is not shewn to have been inadequate, and there is no pretenoe of improper means to obtain the deed.
    There is another ground in this case not found in the case of Bussy v. M’Kie, that of an alleged trust. There is no direct trust in the deed; it can, therefore, only be an implied trust, if there be any trust at all. To support the alleged trust, it is stated that Abraham Ardis was appointed guardian of the personal estate of William Schinhol-ster in the spring of 1790, and that his possession of the land took place about that lime, whence it is inferred he was a trustee. The boy William* Schinholster was at that time, 1790, ten or twelve years of and died about two nor does it that this implied trust, if it existed, was kept alive, or could apply to these defendants, who claim adversely; for no steps were taken for many years, and all the presumptions from lapse of time apply. These answers to the alleged ground of an implied trust, and to the consequent jurisdiction of the court, are not entirely satisfactory; but at least they raise considerable doubt; and doubt will induce me to sustain the plea to the jurisdiction, in order to have the judgment and guidance of the court of appeals, especially in a case which involves the title to land claimed by an adverse possession. It is, therefore, ordered, that the jilea be sustained and the bill dismissed.
    The complainants appealed from the above decree, and submitted the following grounds to shew jurisdiction in the court of equity.
    
      First. “Abraham Ardis, the ancestor of the defendants, having taken possession of the land of William Schinholster, deceased, under whom the complainants claim, and having possessed himself of the title deeds of the same, as guardian of the said William, the complainants are entitled to a full discovery, and to have their title deeds delivered up.”
    
      Second. “The defendants are amenable to this court for the actings and doings of Abraham Ardis as a trustee, both in regard to the real and personal property mentioned in the bill.”
    “The bill charges fraud in Abraham Ardis in holding the land, and prays that certain deeds, by which the defendants pretend to hold the land, may be set aside as fraudulent.”
    “The complainants are entitled to an account for *rents and profits of the real estate, and an account for the personal estate and the proceeds thereof.”
    “The bill is filed for a partition and an adjustment of their rights, and for relief generally.”
    Jan. 1827.
    Thompson, for the appellants.
    William Schinholster died after the act of 1791. That fact is material to the right of inheritance, and in regard to the statute of limitations. If he died in 1793 or 1794, his mother would take the whole jointly with her children and Butler. The grant of the land was made in 1758. In 1801 a deed from Mr. and Mrs. Butler to Ardis recites the grant; and the right to dower in Mrs. Butler is recited to have accrued through John Schin-holster. Was not defendant estopped to say there was no grant? William Schinholster died in 1793 or 1794. Besides the recital in the deed it was proved that possession had been held of the land until John Schinholster died. Mis representative lived on it afterwards, and rented it out for some years. Admitting the title in Ulric, from him it descended to his son. John Schinholster died in 1781, and ifit had been Hiles’s land he would have lived on it; but Schinholster’s widow lived on it some years, and his administrator rented it to several persons, and among others to Hiles himself; from whom it descended to his son William, who died, as complainants allege, after 1791; and, if so, complainants are entitled to recover; if before, neither were entitled. The only pretence that can be set up of a title by the defendants is under Hiles. Hiles at that period, then, could not have pretended to a title or claim. Susannah Schinholster could not have inherited of John, for she had a brother alive who would take under the laws of primogeniture, and she can set up no title unless Hiles had a title. Hiles died in 1785 or 1786. Ardis went into possession as guardian of William, and cannot dispute, the title. *The defendants contend that there was no title in Ulric. If there was no written title, the length of possession, &c., authorizes the presumption of one. Besides, the answer says that William Schinholster died about 1793 or 1794. He was a child about 13 years old. The amended answer claims differently from the original answer. But William died before 1791, and they were tenants in common. Butler and wife instituted proceedings in dower against Ardis in 1800.
    Ford and Wardlaw, contra,
    were stopped by the court.
    Harper, also for the appellants.
    Every person taking possession of an infant’s property is regarded as trustee. 1 Madd. Cha. 90. Guardianship is in the nature of trust. 1 Madd. Cha. 338. 1 P. Wins. 704, 721. 2 P. Wms. 104. 1 Madd. Cha. 123. 1 Atk. 544.
    Is the guardian liable to the representatives of his ward ? 3 Atk. 381, 2.
    The objection that the court has not jurisdiction is, that the complainants might maintain an ejectment; but in that action she must recover on the strength of her own title, which the law will not subject her to. It may be objected, that the defendants would not be allowed to call in question the right of their cestui que trust. This is a rule of equity which has been adopted by the law courts, and cannot oust their jurisdiction. 1 Selw. 556. 2 Sch. & Lef. 72, 84. 11 Yes. 344. 2 Yes. 696. 13 Yes. 133. 6 Yes. 182.
    In all cases of fraud the courts of law and equity have concurrent jurisdiction. 1 Sch. & Lef. 205. 13 Ves. 483. 3 Bro. Cha. Ca. 218. 7 Ves. 244,
    It has been said that the heirs of Ardis came into possession as trespassers, and are not amenable to a court of equity. The representatives of a trustee are liable in the same manner as their trustees, 2 Madd. Cha. *131. 1 Sch. & Lef. 260. All persons coming into the possession of trust property, with notice of the trust, stand as trustees, 2 Madd. Cha. 127. The heir of an infant may come into the court of equity for the delivery of possession, if he allege any matter which shews a probability that he cannot recover at law; and if a dispute about title arises, an issue at law will be directed, 1 Madd. 89. 6 Ves. 89. 3 Atk. 130, 387. 2 Atk. 384. In Wild v. Plobson, 2 Ves. & Beames, 112, the chancellor asks, “ shall he not come into equity because he may recover at law ?” There is no instance in which an issue has been directed in a matter of trust. The rule applies only to heirs, 2 Madd. Cha. 477. As to the question of possession, he cited 3 Atk. 313 459. Where persons enter under trustees, the statute of limitations will not run in their favor until they do some act, or give notice of adverse claim, 1 Bro. Cha. Ca. 550. 2 Ves. Sen. 472. If one with a fraudulent intention take possession of property, the statute will run only from the time of the discovery, Hovenden v. Lord Annesley, 2 Sch. & Lef. 336. In this case there is no evidence that Ardis ever claimed in his own right adversely. Twenty years is a bar to an equitable claim, 2 Bridgm. 253. 2 Sch. & Lef. 633. The statute of limitations does not run pending a suit in equity, 2 Bridgm. 250. Bond v. Hopkins, 1 Sch. & Lef. 113.
    January, 1827.
   Curia, per

Nott, J.

This case comes before us on an appeal from a decree of the chancellor, dismissing the bill for want of jurisdiction. But as it was necessary in order to decide that question that we should look into the whole case, we are now at liberty to decide it, either upon the question of jurisdiction, or upon its merits.

The grounds on which the complainants endeavor to sustain the jurisdiction, are,

1. A discovery of title deeds.

*2. An account of rents and profits.

3. Fraud in obtaining a deed from the complainants.

4. For partition of the land.

With regard to the first question, it appears that the complainant claims as heiress to her son, who, it is alleged, inherited it from his father, to whom it descended from the original grantor. It therefore appears from her own shewing, that there was no chain of title to be discovered in order to enable her to sue at law. There is no allegation of the loss of any deed or of any paper which could give jurisdiction on that ground ; and the defendants deny having any.

On the second ground it is contended, that an heir may always go into a court of equity for an account of rents and profits : but an heir, merely as such, is not entitled to such an extraordinary privilege without stating some legal impediment to his recovery at law, 1 Madd. Cha. 85. Duttney v. Duttney, 6 Ves. 89. No such impediment appears in this case.

It is also further contended, that as the defendant’s ancestor went into possession of the land as guardian of complainant’s infant son, under whom she claims, or at least took possession for him, it created a trust which gives jurisdiction to the court. How far the circumstances of this case would enable the complainant to avail herself of that fiduciary character, if it existed, is perhaps a question of some difficulty, but it is not important to the discussion of this case; for, to give to the argument all the effect to which it is entitled, it resolves itself into the question, “Whether the possession was or was not thus acquired ?” And that was a question of fact proper for the consideration of the chancellor in the court below, and in which this court would not interfere, unless the decree were manifestly contrary to the weight of evidence. The decree of the chancellor must in that respect be considered in the nature of a *verdict at law. He hears the testimony voce, and is therefore better qualified to judge of it than this court can be, who take it from the loose and imperfect notes judge; and in this case the preponderance of evidence appears to me to be in favor of the decree. The guardianship was merely of the personal estate, and the guardianship bond in the penal sum of one hundred dollars only. There are two witnesses only who express an opinion (for it can only be an opinion) that the possession was taken in that character, and one of those the brother of the complainant. Opposed to these are four or five, who with equal confidence express their opinion that Ardis look possession in right of his wife, whose ancestor had long lived on, and died in possession of the land. Indeed the complainant herself, by her own deed made to him several years after the death of her son, disclaimed any other right than the right of dower; and a claim of so doubtful a character as that now set up, and which goes to disturb a possession of more than fifty years, ought not to be encouraged The ground of fraud in obtaining the deed is not supported by any evidence.

As to the partition, it has turned out in the course of the investigation, that the complainant Sarah Butler is entitled to all the land if to any, and not to a part, so that she must fail on that ground.

From any view of the case therefore, I am of opinion that the decree of the chancellor must be affirmed.

Decree affirmed.  