
    A. D. Goss v. Moses Singleton et al.
    
    1. Trust ahd Trustee. Gift. Acceptance. Benefit. Presumption of. In general, any gift by deed, will, or otherwise, is supposed prima facie, unless the contrary appears, to be beneficial to the donee. Consequently the law presumes, until there is proof to the contrary, that eveyy estate is accepted by the person to whom it is expressed to be given.
    
      2. Same. Same. Not perfect until acceptance. The gift is not perfect until ratified "by the assent of the donee; and a disclaimer of the trust operates as evidence that such assent was never given.
    3. Same. Same. Acceptance discretionary. The law does not force the donee to accept the gift of an estate, whether made in trust, or otherwise, and therefore it is competent for the person appointed trustee to refuse both the estate and the office attached to it, provided he has done no act to deprive himself of that right.
    4. Same. Same. Disclaimer. How made. There is some conflict of authority as to whether a parol disclaimer is sufficient. But it is well settled that the renunciation may be by deed, by matter of record, or any written instrument, or by an answer in Chancery.
    
    5. Same. Same. Same. Relates 'bach to the gift. A disclaimer, or refusal to accept the trust will relate back, and be held to have been made at the time of the gift, if no act has been done to preclude the party.
    C. Same. Same. Same. Effect of. Devise in trust. The legal effect of a proper refusal or disclaimer of the trust is, that all parties are placed precisely in the same situation relatively to the trust property, as if the disclaiming party had not been named in the trust instrument, whether it be a deed or will. Hence, if all the trustees disclaim a devise in trust, the legal estate wpll vest in the heir of the devisor. 
    
    7. Same. Trust does not necessarily pass with the property. A trust is the mere creature of equity, and does not necessarily inhere in the property so as to be inseparable therefrom, but may remain in the trustee or elsewhere, wholly unaffected by an unauthorized sale of the property, the subject of the trust.
    8. Same. Effect of the appointment of a trustee. If, by reason of the disclaimer of the trustees, the property descends to the heir-at-law, who is also the cestui que trust, the legal estate is east upon the cestui que trust, who applies to a Court of competent jurisdiction, and has a trustee appointed, in whom the legal estate is vested, coupled with the trusts, the legal estate is by necessary implication divested out of the cestui que trust.
    
    9. Same. Same. Statute of limitations. Effect of. If, from the time the legal title to real estate, the subject of the trust, is thus vested in the trustee, there is an adverse holding of the same for a period of seven years, the party’s title becomes indefeasible by the act of 1819, as against the trustee, and equally so as against the cestui que trust.
    
    10. Sale oe Real Estate. Vendor and vendee. When vendee hound to accept title. In the absence of fraud, the purchaser of real estate is bound to accept a title which is perfect at the time it is to be made, although it may have been defective at the time of the sale.
    11. Same. Same. Same. The purchaser of real estate is compelled to accept the title if it has become 11 indefeasible” by operation of the first section of the act of 1819.
    12. CHANCERY. Decree. Effect of upon the rights of persons not parties. Although a decree is not, in form, binding upon persons who are not parties, yet it is in effect, if the determination of the question presented by the record necessarily involves the determination of their rights and the validity of their title.
    FROM DAVIDSON.
    This cause was beard before Chancellor Emerson, at the November Term, 1858, Decree for the complainant. The defendant, Singleton, appealed. There is a clear and full statement of the facts in the opinion of the Court.
    E. H. Ewing and John Reid, for the complainant.
    1. It was insisted in the Court below that Caroline Hagan was not a party to the bill filed by Henry Hagan under the act of 1837-8. That under that act the administrator could not file the bill in his own name and in behalf of the heirs. That Caroline Hagen should bare been made a defendant to the said bill, and personally served with process. And this not being done, the sale to Gross was void.
    It is admitted by us that this principle was decided by this Court in the case of Frazier and Tulloss, JEx’rs, v. Panlcey et al., 1 Swan Rep., 75. That decision seems to have been made against the words, if not the spirit of the act. If the Court shall be disposed to reconsider this point, they will find, by examining the seventli section of the act of 1838, that the act declared, if the bill was filed by a creditor, it should be in his own behalf and all other creditors; that if filed by an executor or administrator, “ it may be on his own behalf, as well as the widow, heirs, and legatees or dis-tributees of the estate, against such of the creditors as were named therein and sought to be enjoined, and all others interested and not named as complainants.” We have understood that the lawyer who filed the bill in the case of Hagen v. The Creditors of Sitter, drew the act of 1838, and supposed himself to be complying with its provisions.
    The case now before the Court seems to be a much stronger case than that reported in 1 Swan, and herein-before cited, inasmuch as Caroline Hagan subsequently filed a bill, and brought before the Court in a proper way all the parties interested, in which she referred to the proceedings of the suit in the said suit of Henry Hagan, Adm’r, v. The Creditors of Sitter, and ratified as far as she could all the proceedings of the Court. In fact her suit was the same in substance and design, and wTas but a continuation of the suit by Henry Hagan.
    2. But be this as it may, we do not rest this case upon this point. We insist that Goss acquired a good title to this lot by the statute of limitations. .
    
    In the case of Williams v. Otey, 8 Hum. Rep., 568, this Court decided that “whenever a trustee having the legal title neglects to sue until he is barred by the statute of limitations, the cestui que trust is likewise barred, though an infant under twenty-one years of age.”
    In the case of Susan Wooldridge et al. v. The Planters’ Banh et al., 1 Sneed’s Rep., 297, this principle is reiterated, and in a case, the facts of which bear a marked resemblance to the one now before the Court.
    Yerger conveyed the lot in Pulaski to Walker in trust, to pay certain debts; and after their discharge, to hold the property, and apply the annual rents to the support of Susan, wife of John P. Wooldridge, and to the education and maintenance of her three children, until they should arrive at age or married, when each was to have one-third. Walker, the first trustee, resigned, and White was appointed trustee “in his room and stead.” This lot was levied upon and wrongfully sold to satisfy an execution in favor of the bank. It was subsequently sold by the bank, and the united possession of those claiming under the bank was more than seven years. In this case it was decided by this Court that the statute of limitations gave a good title to the lot to the last purchaser, against Mrs. Wooldridge and her children. The trustee could sue, and was bound to sue or be barred.
    In the case now before the Court, Edwin H. Ewing, Esq., and Dr. Jennings had the legal title to this lot from Isaac Sitler’s death, in 1837, down to November, 1850. They could have sued John D. Goss, who was in the actual possession from 1841, and claiming adversely all the time. But if it be objected that they only had the bare legal title and never consented to act, and that therefore the statute would not run, then we say, admitting this to be so for the sake of the argument, Isaac Bitten ivas appointed trustee by the Chancery Court “in their room and stead,” and accepted the trust. He was appointed at the November Term, 1850— more than seven years — and the statute certainly run against him; and barring his title, barred that of the cestui que trust.
    
    It is believed the cases of Smith v. Thompson, 2 Swan’s Rep., 886, and Aihin v. Smith, 1 Sneed’s Rep., 304, do not apply. The statute of limitations could not be pleaded successfully in those cases, because, upon the termination oí the life estate, the legal title vested in the infants. The trustee was not clothed with the legal title for their use. The trustee was clothed with the legal title only for the life estate. Therefore both the legal and equitable title in the remainder being vested in the infants, the statute of limitations did not run against them. But in the case now before the Court, it is believed that. the legal title in the remainder was in the trustees, and remained in them until the youngest child arrived at age. Between the time of the death of the mother, and when the youngest child arrived at age, the trustees were to collect the rents, and apply them to the support and education of the children.
    JOHN TRIMBLE and T. D. Mosely, for the defendants.
    
      
       The acceptance of a trust may be by acts and declarations ; and, in the absence of proof to the contraiy, it will be presumed. And it would seem that if the conduct and expressions of the trustee amount to an unequivocal refusal to accept the trust, it would be sufficient. Thompson v. Tickell, 3 B. & Al., 39; Bingham v. Clanmorris, 2 Moll., 253; Shep. Touch., 452; Stacy v. Elph., 1 M. & K., 195; 16 Conn., 291; 4 Leigh, 152.
    
    
      
       What would be the effect of a disclaimer by the trustee, if the cestui que trust and heir-at-law were not one and the same person ? Would the title then bo vested in the heir-at-law ? and, if so, would it not be coupled with the trusts, in favor of the beneficiary ? Would not the heir be, by operation of law, the trustee ? Field v. Arrowsmith, 3 Hum., 442 ; Hawly v. James, 5 Paige C. R., 318; 8 Paige C. R., 295; Lee v. Randolph, 2 Hen. & M., 12; Dawson v. Dawson, Rice, ch. 243; 2 Story’s Eq., 1058; Saunders v. Harris, 1 Head, 206.
    
   McKinney, J.

delivered the opinion of the Conrt.

The hill seeks to subject a lot in Nashville, sold and conveyed by the complainant to defendant, Moses Singleton, on the 18th of August, 1852, to the satisfaction of the unpaid purchase money. This relief is attempted-to he resisted on the ground of want of title in the complainant. The facts are briefly as follows:

Isaac Sitler, who died in the year 1837, devised said lot, together with other real estate, to E. H. Ewing and Thos. R. Jennings, in trust for his daughter Caroline Sitler, then an infant, to hold for her sole and separate use and benefit, and, in case of her marriage, free from the control of her husband, and of all liability ■for his debts or contracts. And in the event of the death of said Caroline, leaving issue living at the time of her decease, or children of such issue, in further trust, to hold said property for their use, until the youngest child of said Caroline should arrive at the age of twenty-one; and then to convey to her children, or the issue of such children, in such proportions as the law would give in case of intestacy. There are ■ other limitations .over, in certain events, and other trusts declared, which need not be noticed for our present purpose. Said Ewing and Jennings were likewise nominated executors of the will, but they declined to qualify; and at the term at which the will was offered for- probate, they appeared in Court, and formally renounced the executorship of record. And thereupon Henry Hagan was appointed administrator, with the will annexed, of said estate.

In April, 1838, the administrator filed a bill in Chancery, setting forth that the personal estate of the testator was insolvent, and had been so reported to the County Court, and praying a sale of so much of the real estate as might be required to pay the debts, and to have the estate administered pursuant to the statute applicable to insolvent estates. The bill set forth the provisions of the will, and alleged that Ewing and Jennings refused to accept the trust, and asked that a trustee be appointed by the Court in their stead. To this bill certain of the creditors were made parties by name. The nominated trustees, Ewing and Jennings, were likewise made parties. But the infant beneficiary, Caroline Sitler, was not made a party.

Ewing and Jennings answered the bill, and therein entirely renounced the acceptance of the trusts declared in favor of the testator’s daughter; but no trustee was appointed in their place.

In October, 1838, a decree was made directing the sale of a portion of the real estate for the satisfaction of the debts reported due by the master; under which, the lot in controversy in this cause was sold by the master on the 18th of July, 1839. But the purchaser being unable to pay the purchase money when due, transferred the benefit of his purchase to the complainant, Goss. This was reported by the master, and approved by the Chancellor, and an order was made directing the master to convey said lot to the complainant; in pursuance of which, a deed of conveyance was executed to him by the master on the 28th of January, 1841. And under this conveyance the complainant held possession of the lot adversely to all persons until his conveyance to tlie defendant, in 1852 — since when the possession has been continued in the latter in like manner.

Prior to the year 1849, the testator’s daughter, Caroline, intermarried with Gilbert Hagan, and in December of that year (1849) she brought a hill, by her next friend, to which the administrator, her husband, and the issue of the marriage with him, as well as certain creditors and legatees, were made parties; the object of which was to have a full and final adjustment of her rights under the will, and to have the trusts declared therein executed.

In our view of the case, however, it becomes unnecessary to notice the purposes of that bill, or the proceedings that were had in the cause, further than to state, that, in her bill, she neither affirmatively sanctions nor impeaches the previous administration of the estate in. any respect, although all the proceedings are circumstantially detailed; and, amongst other things, the renunciation of the trust by Ewing and Jennings, is stated, and the Court is called on to appoint a trustee in their stead, to carry out the trusts of the will. And in accordance with this prayer of the bill, by an order made on the 19th of November, 1850, Isaac Litton was appointed trustee, and invested with all the powers and duties conferred by the will upon the trustees therein nominated.

The present bill was filed on the first of May, 1855. Gilbert Hagan and his wife, (formerly Caroline Sitler,) and the children of the marriage- — the cestuis que trust under the will — are not made parties.

Upon the foregoing facts, the question to he determined is, whether the defendant is now invested with a valid and indefeasible .title, to the lot in question, as against Mrs. Hagan and her’ children-? For, although the title may have been defective at the time of filing, the bill, yet, in the absence of, fraud on the part of the vendor in making the sale, if th.e title-, be. fully perfected at the time of the final decree, the purchaser will be compelled to ' accept it. ,- I . ;*

For the complainant it is insisted, that, admitting the sale to have been void, the title of the defendant is now absolutely perfect, and beyond the reach.- of- impeachment, by operation of the statute of limitations, upon the established principle that the legal estate being vested in a trustee, whose right of action is- forever barred, the cestuis que • trust, though under disability-, are likewise barred. . . , ’

To this, it is ingeniously replied by the. defendant’s, counsel, that the conveyance '.of -the legal estate in the lot, to the complainant, (after the disclaimer of the trust by Ewing & Jennings,) under the decree of the - court, carried with- it, not merely the legal title, but the ■ trust likewise, so as, by implication, to constitute him a trustee ; and that standing in this , relation, he, cannot denude himself of the trust, or set up an adverse claim.

This reasoning is. not sound. The trust did not, nor could it, pass to the complainant with his purchase of the lot. The trust is the mere creature of equity, and does not necessarily inhere in the property so as to be inseperable therefrom, as the argument assumes, but may remain in the trustee, or elsewhere, wholly unaffected by an unauthorized sale of the property, the subject thereof.

And this leads to the consideration of matters connected with the creation of the trust, and the consequences of its renunciation by the persons nominated as trustees. It seems, in general, that every gift, by deed, or will, or otherwise, is supposed prima facie,, unless the contrary, appears, to be beneficial to the do- \ nee; consequently the law presumes, until there is proof to ‘ the contrary, that’ every estate ' is accepted by the person to whom it is expressed to be given. Hill on Trustees,- (Ed. of 1854,) 304, top. ' But the law does not force any one to accept the gift of an estate, whether made in trust, or'otherwise.; and, therefore, it is competent for. the person appointed trustee to refuse both, the-‘.estate and" the oflice attached to it, provided he. has done no act to - deprive himseli of that right. Id. 312. The gift is not perfect . until ratified by the assent of the donee; and a disclaimer of the trust .operates as evidence that ■ such assent was never given. Id. 316. - There is some difference of opinion as to what shall ,be a sufficient . disclaimer; There- are authorities which seem to maintain that a parol disclaimer of a gift, either by deed or will, of a ' freehold estate, is sufficient. But, however this may be, it is • well settled, that the renunciation may be by deed, by matter of record, or any written instrument, or by an answer in Chancery. Id. 316, 317. And such disclaimer or refusal to accept the trust, whenever made, will relate back, and will be held to have been made, at the time of the gift, if no act has been done to preclude the party. Id. 313.

The legal effect of a proper . refusal or. disclaimer of the trust is, “that all parties are placed precisely in the same situation relatively to .the trust property, as if the disclaiming party had not been named in the trust instrument, whether it he a deed, or will.” Id. 318. Hence, in such case, if a sole trustee, or all the trustees, disclaim a devise in trust, the legal estate will vest in the heir of the dejsisor. Id.

Erom these principles, it follows that the legal estate never vested in Ewing & Jennings: they having properly renounced both the estate and the office of trustees; and, consequently, it descended to the heir at law of the testator, who was the cestui que trust, until, upon, her own application, it was vested in Litton, by the decree of a Court of competent jurisdiction, and, by necessary implication, divested out of her. In this novel state of the case, it might not be possible to hold that the statute of limitation could attach before- the appointment of Litton, in November, 1850. The effect of the disclaimer of the trustees, being to cast the legal estate upon the cestui que trust, by operation of law, from the instant the will took effect ; and thus to unite in her both the legal and equitable estates, (but without effecting a technical meryer of the latter estate in the former, under the peculiar circumstances; Id. 357,) it is difficult to perceive how the statute could have any operation against her so long, at least, as she remained under the disability of infancy; and when that ceased, whether before the appointment of Litton, is not shown. But, however this may be, we think it sufficient, for the determination of the case in hand, that Litton, the trustee appointed by the Court, is now forever barred of his action. By the decree of the Court, the legal estate was in him exclusively; and the trust was a continuing trust, until the youngest child of Caroline should arrive at full age. From the time of his appointment, the statute unquestionably began to operate; and having delayed more than seven years to' bring suit for the recovery of the property, the defendant’s title has become “indefeasible,” by the express terms of the act of 1819, as against the trustee, and equally so as against the certuis que trust.

"We have assumed, for the purpose of this decision, that the sale to complainant, under the decree, was void, as against the infant cestui qae trust, on the ground that she was not a party to the suit; but it is not thought necessary to discuss that question, as it is conceded that, by the decree, though void, the purchaser was clothed with such an apparent legal title, as brought him within the protection of the first section of the act of 1819.

As Mrs. Hagan and her children are not before us in the present case, we cannot, in form, make a binding decree against them; but we do so, in effect, as the determination of the question presented by the record, necessarily involves the determination of their rights, and the validity of their title. Wooldridge v. Planters Bank, 1 Sneed, 297.

The principle of the case of Cunningham v. Sharp, 11 Humph., 116, 119, that the purchaser will not be compelled to accept the title, if the possessory right of the legal owner of the land be merely barred by operation of the second section of the act of 1819, does not apply to this case. Here the rights of all adverse claimants are cut off, and their title absolutely extinguished by force of the first section of the act.

The decree will be affirmed.  