
    
      Wyatt W. Starke and wife vs. John M. Starke, executor of John W. Starke, deceased.
    
    A trust which is not within the statute of limitations, must he a technical and continuing trust, which is not at all cognizable at law, but falls within the proper, peculiar and exclusive jurisdiction of the Court of Equity.
    So long as such a trust continues, there can be no adverse right, for the trustee holds both the legal estate and the possession, in right of his cestuique trust.
    But if the trustee does an act which he intends, and which is understood by his cestuique trust, to be a discharge of his trust, from that time the statute will commence to operate.
    Upon marriage the husband’s receipt for the amount of his wife’s choses in action, though she be a minor at the time, is good, and will discharge the guardian from any further account.
    If the husband receives the property, and believing that he has in some way received an equivalent for the profits, he may decline an account and discharge the trustee.
    After such time the statute of limitations will commence to run.
    If the cestuique trust was ignorant of his rights or there was fraud on the part of the trustee, the statute will not commence to run before the discovery of the right or the fraud.
    To give the wife the benefit of the saving clause in the statute of limitations, the cause of action must have accrued during coverture.
    The statute of limitations does not regard coverture and infancy as equal disabilities.
    DeSaussure, Chancellor. — The object of the bill is to have an account of the profits of land and the hire and labor of slaves, and a discovery of the personal property of the estate of Robert Blakeley.
    The facts were as follow — Robert Blakeley died in January, 1804, intestate, leaving a widow, Catharine, and one child, Jeanette Amelia Blakeley, then an infant of a few months old, and also leaving real and personal estate. The widow, Catharine, administered and made an appraisement of the personal estate of Robert Blakeley, on the 16th of July, 1804. The amount was $4004 62. Of this sum $3700 was for the slaves. The appraisement for the other property was therefore only $304 62.
    In the course of the year 1804, the widow married John W. Starke, who possessed himself of the estate of Robert Blakeley, and on the 30th of January, 1808, he gave a bond with two sureties in the sum of $3000 for the faithful administration (in right of his wife) of the personal estate of Robert Blakeley.
    The property remained in the hands of J. W. Starke from his marriage in December, 1804, to the year 1819. He received the rents and profits of the estate, but made no returns to the ordinary’s office.
    Miss Blakeley was entitled to two-thirds of the estate left by her father, and the widow to one-third. She was brought up and educated by her step-father, and had an expensive education at female academies, for which J. W. Starke paid.
    Jeanette Amelia Blakeley intermarried with the complainant, Wyatt W. Starke, in January, 1819, and her share of the slaves was delivered up to the complainants. It does not appear by any evidence whether J. W. Starke accounted with the complainants for the rents and profits ol the estate.
    Mr. Wyatt W. Starke signed a paper of which the following is a copy:
    “ John W. Starke having expressed a desire, in common with his wife Catharine Starke, to be exonerated from responsibility as respects the hire and use of the negroes belonging to Amelia Blakeley, heiress of Robert Blakeley, I do hereby, in consideration thereof, promise and agree never to institute any suit or make any claim whatsoever against the said J. W. Starke or his heirs, on account of the use or hire of the said negroes.
    (Signed) Wyatt W. Starke.”
    There was no date to this paper, and it was alleged that it was executed before his marriage with Miss Blakeley, she being named Amelia Blakeley in the writing; from which the inference has been drawn, that the paper was signed before the marriage took place.
    If that had been proved satisfactorily, it would have been sufficient to have shewn the nullity of the instrument, as Mr. Wyatt W. Starke would, in that case, have had no authority or interest in the estate. We cannot, however, believe, without further proof, that the paper was signed before the marriage, because the administrator would have known that Mr. Wyatt W. Starke had nothing to do with the estate, and had no authority to act; and the latter would never have done an act in relation to an estate in which he had no concern. It would have been an unbecoming act in both parties, and not seemly in gentlemen of such respectable characters. In the absence of direct evidence of the fact, I must presume that the parties acted correctly as became their characters.
    There was a great deal of parol evidence in this cause, which was taken at great length. It is on my notes, which I connect with this decree, and forms a part of it. I shall refer to it in this discussion.
    It was proved that Mr. J. W. Starke got part of his property with his wife, (who had been the widow Blakeley,) but he had some negroes of his own; and purchased a few and some land (cheap) after his marriage; and he died rich; his lands were worth four or five thousand dollars ; and he left thirty or forty slaves.
    Miss Blakeley lived with her step-father, J. W- Starke, who was kind to her, and brought her up in good style. He sent her to Salem for education, and some witnesses proved, also, to Charleston. She was married to Mr. Wyatt W. Starke in 1819, when she was about 16 years old. She lived in the family for a year after. The division of the slaves was made voluntarily and satisfactorily between the parties. They had largely increased during the time Mr. J. W. Starke had charge of them — more than doubled. Mr. J. W. Starke conveyed, by deed of the day of January, 1819, to Wyatt W. Starke, and his wife Amelia Starke, and their heirs, a tract of land, (which appears to have been his, J. W. Starke’s) for which Mr. Wyatt W. Starke afterwards got $1200.
    
      The consideration expressed on the face of the deed, was one dollar.
    This canse was most elaborately and learnedly argued by the counsel, and many authorities cited to establish the points relied upon.
    It was argued by the complainants, that they were entitled to an account of the rents and profits of-the real and personal estate of their father, which had never been rendered to them or to the ordinary.
    The defences set up, were that Mr. Wyatt W. Starke had given a written paper as above stated, which amounted to a discharge, and that there was sufficient evidence that, though no formal account had taken place, there was such a settlement or payment, as must have done justice between the parties, and been satisfactory to them. ' And that at all events, the statute of limitations, or a sufficient lapse of time had occurred, to bar the claim to an account.
    On the first ground it was conceded by complainant, that the paper was signed by Mr. Wyatt W. Starke ; but it was contended that it was not binding, as no legal or proper consideration was expressed, and none proved. That the court was jealous of such settlements with young heirs, and would not sanction them when made without an account rendered and duly examined.
    It was also contended, that even admitting the paper relied upon as a release or discharge to have been fairly and properly obtained, yet it is not operative against the rights and interests of the wife, because it was a relinquishment which the husband had no authority to make — she also being entitled to a settlement thereof, which is now insisted on.
    There is no doubt that the court is, as it ought to be, very jealous and watchful of such transactions, between parties so situated. The decided cases cited by the bar, prove this to a great extent; yet it is not a blind jealousy. The court has never gone so far, as to declare that all settlements are void. If so, it would never enquire into the circumstances. It does, however, enquire into the circumstances, and decides according to them. In the case we are considering, the intestate, Robert Blakeley, left a personal estate of twelve slaves, as appears by the appraisement ; two of whom were very aged, and all the rest called boys and girls in that document. The widow was entitled to one-third, and the daughter to two-thirds. Excluding the two old slaves, there remained very few workers. Miss Blakeley was supported and educated at considerable expense. After the marriage of the daughter to Wyatt W. Starke, they lived in the family for a year. Soon after the marriage, Mr. J. W. Starke conveyed a valuable tract of land, worth $1200, to Mr. and Mrs. Wyatt W. Starke, without price ; for the consideration is stated in the deed to be one dollar. The conveyance to them both, shews that it was not a purchase by Mr. Wyatt W. Starke. The negroes had been well taken care of, and a greater number were delivered to Mr. Starke for his wife’s share, than the whole number at the death of the intestate. The witnesses prove that the number divided were between 20 and 30. All these circumstances shew fairness in the management, and lead the mind very strongly to the belief that there was fairness in the settlement.
    In the decided cases cited and relied on, there are always circumstances shewing unfairness, or at least loss and damage to the party complainant. Upon the whole, there does not appear to be sufficient ground to induce the court to interpose with a strong hand, and to declare a paper deliberately signed by a gentleman of mature age, bred to business, and of great intelligence, to be a void act; more especially, after the death of one of the parties.
    This view of the subject applies to, and supports, the two first grounds of the defence.
    With respect to the husband’s competency to give a discharge or release of his wife’s right in the choses in action, to wit: to the rents and profits and hire of the property, there is considerable difficulty.
    The court directs settlements of the wife’s property, where the husband must come into this court to get the property, otherwise it does not interfere. Here the husband made a settlement himself, with the administrator— and upon what was then a satisfactory arrangement, re*-linquished the right to thechoses in action ; for a disclaimer and relinquishment of remedy, is a relinquishment of the right.
    That a husband has a right to assign his wife’s choses in action during the coverture, is, I think, too well settled to be shaken, when done fairly, and on proper consideration. It is too late after a division of the bulk of the estate, and no marriage settlement made or asked for, and many years have elapsed, and the administrator is dead, to endeavor to get rid of a settlement and discharge, by setting up an equity of the wife in a mere inferior interest, derived out of the estate, which has been received without a settlement.
    In my opinion, the circumstances do not shew any unfairness ; and that the relinquishment was on proper consideration, is not doubtful, when we recollect the circumstances above stated, which must have led to the signing the paper in question.
    If there had been any circumstances which indicated unfairness, and any injustice resulting from it, the whole of this reasoning would be inapplicable, and the court would, without scruple, have opened the transaction, set aside the relinquishment or discharge, and ordered an account.
    The next point for consideration is, whether the statute of limitations and lapse of time would bar the demand.
    . It is the established doctrine of the court, that executors and administrators of an estate are trustees for those interested therein ; and it is also settled, that the statute of limitations does not, as such, run against the just claims of persons so interested. It does not, however, follow, that great lapse of time, neglect to pursue the remedy, an acquiescence in a settlement, until the death of a party who might have been able to render an account, may not operate as a bar to the demand. All these circumstances concur in this case. The paper given or set up as a relinquishment-of right, though without date, must, from the facts in the case, have been given soon after the marriage in 1819. It is most probable when the slaves of the estate were divided, and when the conveyance of the land was made ; (January, 1819.) This relinquishment of right has been acquiesced in till the bill filed in ’May, of the year 1829 , subsequent to the death of the person who made the settlement, and who might, if called upon in his life time, have been able to shew the justice of the settlement. X conclude, therefore, that it would be improper to set aside the paper of relinquishment signed by Mr. Wyatt W. Starke, and to order an account.
    I am sensible that there are real difficulties in this case, and that some of the decided cases cited by the counsel for the complainants, go very far'towards supporting their claim to an account. But it does appear to me, that there is one pervading principle running through the whole of them.
    There must be some'unfairness in the transaction, or some injury, loss, or injustice sustained, to induce the court to interfere and exercise its 'extraordinary power to set aside a party’s own instrument, voluntarily entered Into, without any proof of fraud or imposition practiced to induce it. It ought to be remarked, that Mr. Starke himself drew the paper. The property was largely increased by the management of the administrators.
    It is ordered and decreed that the bill be dismissed, but without costs.
    From this decree the complainants appealed.
    
      Gregg & DeSaussure, for the appeal,
    cited Stackhouse vs. Bamston, 10 Tes. 464, as to the statute of limitations. The bill was filed within five years after Jeanette Amelia attained twenty-one. The release was signed after the marriage. It was a release of her equitable estate, without her knowledge, without consideration, and without an account. As to the want of consideration, l-Phillimore, 424; 2 P. W. 203; 2 Sch. and Lef. 500; Reeve’s Dom. Rel. 129 ; Hatch vs. Hatch, 292 ; 9 Yes. 292 ; Duke of Hamilton vs. Mahun, 1 P. Wms. 118; 2 Atk. 15-34 ; 2 Ves. Sen. 514 ; Beam’s Pleas in Equity, 226. Can the husband assign the wife’s choses in action, without valuable consideration 'l 2 Atk. 206, 417 ; 4 Yes. 392 ; 8 Yes. 511; 4 Yes. 19 ; Henry vs. Udal, 5 J. C. C. 464 ; Clan-cey, 123, 494 ; Prec. in Chan. 412 ; 1 Jac. and Walk. 472 ; 10 Ves. 466 ; Ang. on Limitations, 134 ; 1 McCord C. R. 313, 176 ; 3 J. C. R. 216 ; 7 do. Ill ; Plow. 375.
    
      McCall and Clarke, contra,
    cited 1 Phill. 482; 2 Mc-Cord’s R. 218; 4 McCord, 326 ; Co. Litt. 282 ; Reeve’s Dom. Rel. 5 : Roper’s Hns. and Wife, 218; 9 Ves. 100, 107 ; 2 Ves. 280, 92 ; 3 Brown’s Ch. R. 633 ; 13 Ves. 148 ; 1 Fonb. 201 ; Newland on Con. 404 ; 3 P. W. 189; 2 Cranch, 180 ; 1 Harper Eq. R. 180 ; 2 Mad. Ch. 243, 353.
   Curia, per

O’Neall, J.

The only question necessary to be considered in this case, is, whether the complainants’ claim for an account of the hire of their slaves, is barred by the statute of limitations.

A trust which is not within the statute of limitations, must, in the language of Chancellor Kent, “be a techni-nal and continuing trust, which is not at all cognizable at law, but falls within the proper, peculiar and exclusive jurisdiction” of the Court of' Equity. Kane vs. Bloodgood, 7 J. C. R. 111. So long as this trust continues, there cannot be any adverse right or possession ; for the trustee holds both the legal estate and the possession, not for himself, but for his cestui que trust." While, therefore, the trust continues, the statute of limitations cannob affect it; but if the trustee does an act which he intends, and which is understood by his cestui que trust, to be a discharge of his trust, then the statute will, from that time, commence to run ; and this was so decided by this court at our last session in Charleston, in the case of Moore vs. Porcher. According to Chancellor Kent’s definition of such a trust as will not be affected by the statute of limitations, the case put will be found to want one very essential character. It is no longer a continuing trust. Indeed, it is no longer a trust in any sense of the word, for a trust is to hold for the use of another. But here the trustee has ceased so to hold — he indeed- holds for himself. In this respect, the case is very .analogous to a very common and familiar one at law, that of landlord and tenant. So long as this relationship exists, the tenant cannot acquire an adverse title by possession. But so soon as he is divested of his character as tenant, by the consent of his landlord, as by parchase from him, or by going out of possession, and again acquiring it — or by actual notice to his landlord that he has ceased to hold as tenant, and holds for himself; he may acquire a title by possession, for he then holds for himself, and in his own right, and not for, and in the right of, another; and this is what I understand by adverse possession. Simons vs. Parsons, decided January term, 1830, at this place.

It is supposed, however, that the rule which I have stated cannot apply to this case; for it is alleged that the defendant’s testator, as trustee for Mrs. Starke, could not discharge his trust otherwise than by coming to a regular account, and paying the balance found in his hands.. This position is based upon the notion, that the hire in arrear was the wife’s equitable chose in action, which the court of equity would order to be settled on her, and that, therefore, no act of the husband, short of an actual receipt of the fund, could actually or constructively discharge the trustee from a future account. There is no doubt of the rule, that where the husband or his assignee have to seek the aid of the court of equity, to render the wife’s chose in action available, that it will generally decree a settlement; and that there is as little doubt where either receive it and render it available, that the court of equity cannot interfere. Upon marriage, the husband has the right to receive the personal property of the wife; and his receipt for the amount of his wife’s choses in action, even although she be a minor, is good and valid, and will discharge her guardian from any further account. Edwards vs. Higgins, 2 M’Cord’s C. R. 16. If he thinks proper to receive the property, and believing that he has, in some way, received an equivalent for its hire, he may decline an account, and discharge the trustee. For it will not be denied, that the complainant Starke, might (if he had thought -proper so to do) have claimed from his uncle, the testator, an account of the’,hire of his wife’s slaves, and on receiving payment, he could have returned the money to him; and if this had been done, it could not be pretended that either he or his wife could ever have demanded any further account. The course which the complainants allege was pursued, was exactly equivalent to this. For he received the slaves of his wife and such of the property as the testator thought proper to give him, and believing either that he was fully indemnified for the hire, or that it would be hard or unjust to claim an account, he promised not to do so. This was a gift by the husband to the trustee, of his liability to account. Standing by itself, it could not perhaps be sustained as a promise not to demand an account, unless plenary proof had been furnished of a consideration to sustain it. But it is in evidence, that at that time the trustee did an act, intended and understood to be by the cestuique trust entitled to receive, a discharge of the trust. It is in this point of view alone, that I attach any importance to the paper executed by Wyatt W. Starke.

The statute of limitations is founded upon the presumption, that after the time allowed by it for an action to be brought, that the evidences of settlement and payment have been lost, and this lapse of time stands in the place ot proof, and operates as a positive bar, even against our belief of non-payment. If it was necessary, therefore, in the case before us, it would be our duty, in speaking of a matter to which the bar of the statute applies, to presume in favor of the defendant, that an actual account, and payment in money or property, had been made, at the time the trust was terminated.

In January, 1819,- when the testator delivered over the slaves to his cestuique trust, his trust terminated, and the statute then commenced its operation. If it was pretended that a fraud had been committed by the trustee, or that his cestuique trusts were ignorant of their rights, the statute would not commence to run until a discovery of the fraud, or until they were informed of their rights. But there is no pretence of this kind in the case; and indeed the paper executed by Wyatt W. Starke shows that he was well aware of his wife’s rights, and that he chose to end the relation of trustee and cestuique trust without asserting them. In four years after January, 1819, the right of the complainant, Starke, to demand any further account, was barred ; and I am very much inclined to think, that in a case brought by himself and wife, the coverture of his wife would not be any answer to the plea of the statute of limitations. The saving in favor of femes covert, in the statute, is for the protection of the wife, and not the husband; and in that view it is, that she is authorized to constitute an attorney to sue either in her own name, or in the name of her husband himself. But it is not necessary so to decide in this case. For unless the wife was entitled to five years, after attaining to full age, the bar is complete against her as well as the husband. By the Act of 1712, 2 Brev. Dig. Tit. 110, Sec. 14, p. 23, it is provided, that if any person or persons, “at the time of any such cause of 'action given or accrued, shall be beyond the seas, or feme covert, or imprisoned, shall be at liberty to bring their action at any time within four years after the ratification of this Act, or at any time within five years after such cause of action given or accrued, and at no time after.” To entitle the complainants to the benefit of this saving, it is necessary to shew that the cause of action accrued during coverture. It is, however, unquestionable, that the right to demand an account of the hire of the slaves, accrued to Miss Blakeley at the end of every year after the death of her father. The cause of action therefore existed before coverture, and she cannot claim the benefit.of this saving. In Tredville & wife vs. Collins, 1st Con. Rep. (Tredway’s ed.) 202, the cause of action accrued to the feme plaintiff while sole, and during infancy, and it was held that she was bound in four years after attaining to full age; and that she was not entitled to sue within five years from her coverture, notwithstanding it appeared that she had been married during infancy.

It is true that in Stowell vs. Zouch, Plowden, 375, it is said that if one had three or four of the defects and impediments, as if a woman who has present right, or when the positive right falls in is covert, within age, not of whole mind, and in prison, and one or two or three of these defects are removed, as if the husband dies, and she is of full age and let out of prison, the five years appointed to her by the statute, shall not commence until the last defect or impediment is removed ; and when she is void of all the impediments or defects, then the five years shall commence.” On looking back into the report of that case, at page 362, the clause of the statute, to which this argument of the Judges alludes, will be found to provide, “that all women covert, not parties to the fine, and every person, within age, in prison or out of the realm, and not of whole mind at the time of the fine levied and ingrossed, and by the Act before excepted, having any right or title or cause of action, to the lands, shall take their actions on lawful entry according to their right and title, within five years, after they come and be of full age oí twenty one years, out of prison, discovert,” &c. From which it appears, that the statute there referred to, and upon which the argument is founded, contemplates the giving of five years, after the removing of all disabilities which may exist at the accrual of the cause of action. The conclusion of the Judges in this argument is nothing more than that the party may rely upon the disability last removed, and claim the five years from that time. All the disabilities must exist at the moment the cause of action accrues. If only one existed, and that is removed, the statute would commence to run, and a subsequent disability accruing, would not prevent it from running out, as appears from the same authority. So that even according to this case, coverture, after the cause of action accrued, could not be joined to infancy, to extend the term allowed by the statute. But our Acts of limitations are not identical in their provisions with the statute referred to in Plowden. The Act of 1788, 2 Brev. Dig. Tit. 110, sec. 23, p. 25, allows to infants four years, after attaining full age, to prosecute any personal action. The Act of 1712 does not except femes covert until after discoverture, but merely gives them the right to sue at any time within five years after the cause of action accrued. The Acts of limitations do not, therefore, regard coverture and infancy as equal disabilities. Indeed, coverture is not a disability, for the Act of 1712 does not treat it as such, in permitting the rights of a feme covert to be barred while it exists ; and by another provision, the right and power to sue, is given to her. It may admit of a grave question, whether the disability of infancy is not merged in the coverture, and whether an infant feme covert could have any longer term than five years after the accrual of her cause of action. In all events, the party could only have the right to claim the protection of one or the other, and not rely upon both as cumulative disabilities.

In the case before us, the complainants must rely on the infancy of Mrs. Starke. She was of full age in July or October, 1823. Take the last period as the true time, and she would be barred in October, 1827, three months before the testator’s death, and nearly a year and eight months before the filing of this bill.

It is therefore ordered and decreed, that the Chancellor’s decree be affirmed.  