
    *Bargamin & als. v. Clarke & als.
    March Term, 1871,
    Richmond.
    i. Estoppel — Inconsistent Positions — Judicial Admissions in Another Suit. — A party in a suit will not he estopped from setting- up a defence on the ground that it is inconsistent with the defence he made in another suit by other plaintiffs, unless the fact of such inconsistency distinctly appears.
    3. Evidence — Judgments — Opinion of Judge. — The judgment in the first suit, of the opinion of the judge in it, is not competent evidence for the plaintiffs in the second suit, to show the nature of the title set up in it by the defendants.
    3. Deed of Trust — Equity of Redemption — Laches—Case at Bar.  — In 1819, L conveys a lot of ground to C, in trust, to pay certain detits, some of which are upon executions in the hands of the sheriff, and the other is due to the father of C. Ten years after, the father dies and mates C his executor and one of his residuary legatees. The lot is neyer sold under the deed of L, "but, in 1839, C takes possession of it and encloses it, and some years after leases it, in his own name to R for eight years. In 1854. W, claiming it under another title, sues R for it, and C, being then dead, his heirs make themselves parties and defend the suit, and obtain a final Judgment in 1807. Then the heirs of L sue the heirs of Cfor the lot, alleging that C took and held possession as trustee under the deed, and his heirs held under the trust, and defended the action under that title. The heirs of C deny this, claim that C took possession for himself, and he and they have so held for twenty-eight years, and they defended the suit for themselves. Hiii/d : The heirs of L are barred.
    In October, 1867, Anthony B. Bargamin and Clifford Bargamin, two of the heirs at law of. Caleb Bownes, deceased, filed their bill in equity in the Circuit court of the city of Richmond, against John Clarke and others, the heirs at law of Henry Clarke, deceased, and the others heirs of Caleb
    Bownes, deceased, and T. W. Doswell, to recover a lot lying on Franklin street, *in said city; it being the same lot which was the subject of controversy in the cases of Mitchell & al. v. Baratta and Mitchell, &c. v. Riviera, reported in 17 Gratt. 445. In their bill, they state that in the year 1819, Caleb Bownes, being indebted to John Clarke and George Savage, conveyed to Reuben Burton and Henry Clarke, a certain lot of ground on Franklin street, to secure the debts due to said Clarke and Savage. That, after the execution of this deed, Burton and Caleb Bownes died, and John Clarke also died, having made a will, be which he appointed Henry Clarke and Wm. John Clarke his executors. That Henry Clarke, some time in the year 1839, entered upon and took possession of said lot, as trustee in said deed; said entry being made by him under claim of title as such trustee. That the said lot was afterwards in litigation. That Clarke, having rented the land as, trustee, to tenants, the rents have amounted to a large sum, the exact amount of which is unknown to the plaintiffs. That they do not know whether the debts secured by the deed have been paid or not. That in the litigation above mentioned, Mitchell and Williams were plaintiffs and Baratta and Riviera were the sole original defendants, both of these actions involving the lot aforesaid; and that the said litigation was pending when John Clarke and the other heirs of Henry Clarke, deceased, procured themselves to be made defendants therein, as having the legal title of the said Henry Clarke, as trustee as aforesaid, in them, and claiming that Henry Clarke, as such trustee, had leased the said lot to Baratta and Riviera; and throughout sa’d litigation the said Clarkes asserted and relied on the title of their ancestor, Henry Clarke, trustee as aforesaid; and finally succeeded in making it good, and defeating the claim of said plaintiffs.
    , They say that the said Henry Clarke, in his lifetime, never rendered any account of the rents and profits of *said property, and pending the said litigation they were collected and received by Thomas W. Doswell, as receiver of the court, and are now in his hands. They insist that whatever part of the debts secured by the deed of trust remain unpaid should be paid out of these rents; and the balance of these rents, and the lot, after satisfying the lien,belong to the heirs of Caleb Bownes. The plaintiffs are not informed what interest the heirs of Henry Clarke claim in said rents and profits; but suppose they were made defendants merely to defend the true claimants of the property against the plaintiffs in the said actions, as their ancestor, Henry Clarke, entered upon and held the same merely in trust for the heirs of Caleb Bownes. They pray that Doswell may be restrained from paying over the rents to the heirs of Henry Clarke; that the trusts of the deed may be properly settled ; and when the same are satisfied, any balance of said rents and said lot may be decreed to them; and for general relief.
    John Clarke and the other heirs of Henry Clarke answered the bill. They say it is not true that they claimed and recovered the property in the bill mentioned, as the heirs of Henry Clarke, as a trustee for the benefit of the creditors of Caleb Townes. Henry Clarke, and these defendants claiming under him, have held the property for twenty-eight years, claiming it as their own; and they insist their title is valid and perfect against all the world. They deny that the record, in the cases of Mitchell v. Baratta and Riviera, except the judgments, are competent evidence in this cause against them, because neither the plaintiff nor any of the heirs of Caleb Townes, were parties in the causes. But if the records were evidence they were conclusive against the plaintiffs. That Henry Clarke did not claim or hold the property as trustee under the deed of Caleb Townes, as was apparent from the fact that he leased the property in his own name to Baratta and *Riviera. They insisted further, that the plaintiffs were barred by the statute of limitations, as are all the debts secured by the deed of Caleb Townes. And they rely upon the lapse of time and the laches of the heirs of Caleb Townes, in not bringing this suit until all the parties to the original transaction were dead.
    The lot in controversy in this case lay in the valley of Shockoe creek, a stream which had several times changed its bed. The Townes claimed it as having been originally on the west of the creek; the Adams claimed it as having been on the east of the creek. In 1815 James Townes, the father of Caleb Townes, who owned the land on the west of the creek, conveyed it to Caleb and Wm. Townes, and in 1817 William conveyed it to Caleb. In 1819 Caleb Townes conveyed it to Burton and Henry Clarke, in trust to secure debts due to John Clarke, the father of Henry Clarke, and Savage. Several of the debts due to Savage were upon executions against Caleb Townes, then in the hands of the officer. John Clarke died in 1829, and by his will gave the residue of his estate to his six children, of whom Henry Clarke was one; and he appointed his sons Henry and William John Clarke his executors; both of whom qualified as such.
    In 1819, John Adams conve3Ted this lot, with other property, to Thomas Taylor and Charles J. McMurdo, in trust to secure debts due to the Bank of Virginia. In 1839, McMurdo sold under this deed, and the Bank becoming the purchaser, he conveyed the property to the bank. On the night after this sale, Henry Clarke took possession of this lot, and enclosed it with a fence; and he and those claiming under him have held it since that time. On the 14th of January, 1852, Henry Clarke leased the property to Riviera for eight years, upon a rent of $300 per annum, | payable quarterly. This deed is in the name of Henry Clarke individually, *without any reference to the trust. Baratta leased a part of the property from Riviera.
    In October, 1854, Mitchell and Williams, claiming under the Adams’ title, brought ejectments in the Circuit court of the city of Richmond, against Baratta and Riviera, to recover the property. In 1855, Henry Clarke having died since his lease to Riviera, his sonJ ohn Clarke, and his other children, who were minors, made themselves parties defendants in these suits, and after a contest which lasted in the Circuit court until January, 1861, and in this court until April, 1867, there was a judgment for the defendants.
    On the 5th of March, 1869, this cause came on to be heard, when the court dismissed the bill with costs. And thereupon the plaintiffs applied to this court for an appeal, which was allowed.
    R. T. Daniel, Steger & Sands, for the appellants.
    Tyons, for the appellees.
    
      
      Estoppel — Inconsistent Positions — Judicial Admission in Another Suit. — See Tabb v. Cabill, 17 Gratt. 160; Penn v. Penn, 88 Va. 361, 13 S. E. Rep. 707; mono-graphic note on “Estoppel’-’ appended to Bower v. McCormick, 23 Gratt. 310.
      The proposition laid down in the principal case, that the principle of estoppel, invoked by the appellants, rested upon the ground of fraud, was cited and approved in McCormack v. James, 36 Fed. Rep. 19.
    
    
      
       Chancery Practice — Effect of Laches. — Many subsequent cases cite and approve the proposition laid down in the principal case that equity will generally follow the statute of limitations; but, that, even where there is no absolute bar from lapse of time, it is a principle of courts of equity not to take cognizance of an equitable claim after a great lapse of time, and when from the death of witnesses,' and the loss of papers, there is danger of doing an injustice. and there can no longer be a safe determination of the controversy. See Rowe v. Bentley, 29 Gratt. 763; Justice v. English, 30 Gratt. 576; Perkins v. Lane, 82 Va. 62; Jameson v. Rixey, 94 Va. 347, 26 S. E. Rep. 861; Troll v. Carter, 15 W. Va. 583, 589; Pusey v. Gardner, 21 W. Va. 481; Swann v. Thayer, 36 W. Va. 56, 14 S. E. Rep. 426. See also, on this point, Smith v. Thompson, 7 Gratt. 112; Morrison v. Householder, 79 Va. 627; Carr v. Chapman, 5 Leigh 164; Caruthers v. Trustees of Lexington, 12 Leigh 610, 617; Roster v. Rison, 17 Gratt. 321; Harrison v. Gibson, 23 Gratt. 212, and foot-note; Carter v. McArtor, 28 Gratt. 356, and foot-note; Hatcher v. Hall, 77 Va. 573; Nelson v. Kownslar, 79 Va. 468; Wissler v. Craig, 80 Va. 22; Phelps v. Seely, 22 Gratt. 573, 589; foot-note to Rowe v. Bentley, 29 Gratt. 756; footnote to Justice v. English, 30 Gratt. 565; West v. Thornton, 7 Gratt. 177; Robertson v. Read, 17 Gratt. 544; Atkinson v. Robinson, 19 Leigh 393; Bart. Ch. Prac. (2d Ed.) 90; 18 Am. & Eng. Enc. Law (2d Ed.) 97.
      In Jones v. Lemon, 26 W. Va. 634, the court said: "The doctrine is well settled, that while in cases of direct or express trusts, as between the trustees and cestui gue trust, the statute of limitations has no application during the continuance and recognition of the trust, yet if the trustee repudiates the trust by clear and unequivocal acts or words, and claims thenceforth to hold and control the estate as his own, not subject to any trust, and such repudiation and claim are brought to the notice or knowledge of the cestui gue trust in such manner that he is called upon to assert his equitable rights, the statute will begin to run from the time that such knowledge is brought home to the cestui gue trust. 2 Perry on Trusts, §§ 863, 864; Ang. on Lim. § 174; Nease v. Capehart, 8 W. Va. 95; Cooey v. Porter, 22 Id. 120; Bargamin v. Clark, 20 Gratt. 544; Rowe v. Bentley, 29 Id. 756, 760.”
      See also, W. M. & M. Co. v. Peytona C. C. Co., 8 W. Va. 442; foot-note to Rowe v. Bentley, 29 Gratt. 756.
    
   JOYNES, J.

The first point insisted on for the appellants is, that the appellees succeeded in defeating the ejectment of Mitchell & al. v. Baratta & al., to recover the land now in controversy, upon the title and possession of their ancestor, Henry Clarke, as trustee under the deed of trust executed by Caleb Townes to secure the payment of certain debts, and dated June 10th, 1819; and that the appellees are thereby estopped to maintain, in this action, that the title and possession were those of Henry Clarke individually, and not as trustee. To establish the fact that the ejectment was defended on the title and possession of Henry Clarke as trustee, reference is made to certain expressions in the opinion of the president of this court when that case was before it. 17 Gratt. 445. But the judgment in that case was not admissible in this, as evidence of facts established in that case, because the parties in that *case were not the same as parties in this. So, the opinion of the court in that case could not be referred to in this to establish any fact adjudged or alleged in it. Besides, it was not a question, in that case, whether the Clarkes relied upon the possession of Henry Clarke, individually, or upon his possession as trustee. It was enough, for the purpose of defeating that action, to show that Clarke held adversary possession for a sufficient length of time to defeat the action; and it was immaterial whether it was his individual possession or his possession as trustee.

The appellants further rely upon the evidence filed in the case of Mitchell v. Ba-ratta, to show that the Clarkes defended that action upon the title and possession of Henry Clarke as trustee. This evidence was admissible against the Clarkes, in this case, because they were parties to the ejectment. 1 Greenleaf, Evidence, § 553.

The appellees, in their answer, deny that they defended the ejectment upon the title and possession of Henry Clarke, as trustee. There is no proof that Henry Clarke ever declared, within the period of limitation or at any other time, that he held as trustee, and not in his own right. His heirs deraigned their title in the ejectment suit, by proving the title of Caleb Bowndes; the deed of Caleb Bowndes, in 1819, to Henry Clarke and Reuben Burton as trustees, of whom Clarke was the survivor; and they proved the possession of Clarke by the erection of a fence around the land in July, 1839, and his exclusive and notorious possession from that time. It did not appear that Clarke ever had actual possession until he erected this fence. That was more than twenty' years after the date of the deed of trust. It does not appear whether the debts had ever been paid; but after the lapse of twenty years the law will presume that they' had been paid. [Cowan & Hill notes to Phil. EJv. 678-’9, Sth ed.] Besides, the *greater part of the debts provided for by the deed of trust were due upon executions against Bowndes, then in the hands of the sheriff of Henrico. We must presume that these debts were collected, and promptly collected. It was the interest and the duty of the sheriff to collect them. The only other debt provided for -was due to John Clarke, who, as has been stated in the argument, was the father of Henry Clarke. John Clarke died early in 1829, as appears from his will and the probate of it; and made Henry Clarke one of his residuary legatees and devisees, and also one of his executors. If this debt was not paid to John Clarke, in his lifetime, there is a strong presumption that it was paid to his executors after his death. It was the duty', as well as the interest of the executors, both of whom were residuary legatees, to collect it.

The presumption that these debts were all paid is so strong that we may assume the fact to be so. They were probably paid, too, within a reasonable time — in a few years, at least, after the date of the deed of trust.

There is no direct evidence to show who paid these debts. They do not appear to have been paid by any public sale of the land under the deed of trust. Caleb Bown-des did not pay them; because he was insolvent. If they were paid by any other person than Henry Clarke, we should have heard something of his claim to reimbursement out of the land. The most probable supposition is, that they were paid by Henry Clarke, upon an agreement that the land should be his. I do not say that the evidence proves this; but I will say that this supposition will account for the subsequent conduct of Clarke and of Bowndes’ heirs, and is not inconsistent with any part of the evidence.

It seems to be clear from the evidence, that the equity of redemption was extinguished long ago, and doubtless before July, 1839. It may be inferred, from *the lapse of time, and the acquiescence of Bowndes’ heirs. Prevost v. Gratz, 6 Wheat. R. 481. If the equity of redemption had not been extinguished, why did not the appellants, the heirs of Bowndes, set up their claim until the institution of this suit, in 1867? They must have known that the debts had been paid. They must have known, from July', 1839, that Clarke had taken possession by enclosure. This was enough to excite enquiry. If Clarke told them that he had taken possession as trustee, did they' not ask him what was the necessity for doing so, and w'hy the sale could not be made without further delay? Was not their surprise increased when they found Clarke making a lease of the land, in his own name, for so long a term as eight years? There could not be a stronger indication that he did not hold the land for the benefit of the trust, than the fact that he leased it for so long a term, and appropriated all the rent to himself. When they found Mitchell and Williams suing to recover the land upon a title adverse to that of their ancestor, Caleb Bowndes, why did they not assert their claim?

The presumption, therefore, seems to be irresistible, that the debts, provided for in Bowndes’ deed of trust, were satisfied, and the equity of redemption extinguished long ago, and probably before Henry Clarke made his enclosure in July, 1839. The probability is, that Henry Clarke had satisfied the debts and extinguished the equity of redemption, many years before, and that he forebore to take possession until a claim to it was asserted by Macmurdo’s sale, in July, 1839. Having no deed from Bowndes, Clarke found it necessary to take actual possession, which he did by his enclosure.

It must be borne in mind, in dealing with the evidence in this case, that if Henry Clarke had been alive when the ejectment was tried, he might have been able to produce evidence of which his heirs had no ^knowledge, and that, after so great a lapse of time, evidence known to have existed may have been lost by the death of witnesses and the loss or destruction of papers. It seems to me, therefore, to be a hard inference to say that the heirs of Clarke defended the ejectment upon his title and possession as trustee.

But, if these conclusions are not so well sustained as they seem to me to be, it must be conceded that they are not destitute of force. At any rate, it cannot be said to be certain that the appellees defended the ejectment upon the title and possession of Henry Clarke, as trustee. Now, the principle of estoppel invoked by the appellants to preclude the appellees from setting up, in this case, a title in themselves, as heirs of Henry Clarke, discharged of the trust, rests upon the ground of fraud. Philadelphia, Wilmington & Balt. R. R. v. Howard, 13 How. U. S. R. 308. It would seem to be very clear, upon principle, that this rule cannot be applied in any case, in the absence of clear proof, that the party had, in the pre- | vious case, made use of a defence inconsistent with that which he proposes to use in the subsequent case. In a case in which the fact distinctly appears, the rule is eminently wise and just, because it prevents a fraud upon the administration of justice. But, when the fact is to be made out by inference and conjecture only, as to the character of the first defence, and it cannot be said to be established with certainty, it would be a violation of the plainest justice to apply the rule. And, I apprehend, that the doctrine of estoppel is never applied, in any of its branches, upon an uncertain and speculative state of facts.

The appellees were, therefore, at liberty to set up, in this case, a title in Henry Clarke individually, and in themselves as his heirs, to the land in controversy. And, as we have seen, the facts and circumstances afford the strongest presumption that the debts provided *for in the deed of trust were all satisfied, and the equity of redemption extinguished long ago, and probably long before Clarke’s enclosure of the land, in 1839. That being so, the possession of Clarke must have been adverse, and there was no necessity for Clarke to disclaim the trust, inasmuch as it no longer existed. Twenty-eight years elapsed from the date of Clarke’s enclosure before the beginning of this suit; and the lapse of time barred the claim of the appellants.

But, even where there is no absolute bar from lapse of time, it is a principle of courts of equity not to take cognizance of an equitable claim after a great lapse of time, and when, from the death of witnesses and the loss of papers, there is danger of doing injustice, and there can no longer be a safe determination of the controversy. In this case, the appellants have been guilty of great laches in the assertion of their claim: all the original parties to the transactions have long been dead, and the means of explaining those transactions have been lost. On this ground, the bill of the appellants ought to have been dismissed. Caruthers’ Adm’rs v. Trustees of Lexington, 12 Leigh 610; Smith & als. v. Thompson’s Adm’rs & als., 7 Gratt. 112; West’s Adm’rs & als. v. Thornton & als., 7 Gratt. 177; Doggett v. Helm, 17 Gratt. 96; Robertson & als. v. Read’s Adm’r & als., 17 Gratt. 544; Wagner v. Baird, 7 How. U. S. R. 234; Badger v. Badger, 2 Wall. U. S. R. 87.

It was insisted by the counsel for the appellants, that this being the case of an express trust, the appellees could not take advantage, in any form, of the lapse of time to protect themselves against the claim of the appellants. But in 2 Story’s Ejquity, § 1520 a. is the following: 1 ‘It is often suggested that the lapse of time constitutes no bar in cases of trust. But this proposition must be received with its appropriate qualifications. As long as the relation of trustee and *cestuis que trust is acknowledged to exist between the parties, and the trust is continued, lapse of time can constitute no bar to an account or other proper relief for the cestuis que trust. But, when this relation is no longer admitted to exist, or time and long acquiescence have obscured the nature and character of the trust, or the acts of the parties, or other circumstances give rise to presumptions unfavorable to its continuance, in all such cases a court of equity will refuse relief, upon the ground of lapse of time, and its inabilit3' to do complete justice. This doctrine will applj' even to cases of express trust, and, a fortiori, it will apply with increased strength to cases of implied or constructive trusts.” The cases there cited fully sustain the text.

Upon the whole, I am of opinion that there is no error in the decree, and that it should be affirmed.

The other judges concurred in the opinion of Joynes, J.

Decree affirmed.  