"der whom he claims, shall have been in possession one whole year next before. [R. C. c. 103, §1, ed. 1819.] Here Graves "was the person conveying, and Bibb, the person in possession "was him under whom Graves claimed; so that, literally, Bibb "is excluded from making the objection; and, if it depended upon "construction, could the plaintiff possibly suppose, when they "purchased, that Bibb's possession was adverse to the title of "Graves, to whom he had conveyed the land with a general war"ranty?"

"The Court are therefore, of Opinion upon this point, that the "title of Graves passed to the plaintiffs by the bargain and sale "and gave them good title against Bibb: And upon the whole, "that there is Error in the Judgment of the District Court which "is to be reversed with costs, and judgment entered for the "plaintiffs." Duval & others vs. Bibb, 3 Call's Rep. 366.

In the case of Jackson ex dem. Dox vs. Jackson, (5 Cow. Rep. 174.) SUTHERLAND, J. in delivering the Opinion of the Court, said;

"But it is perfectly immaterial whether Jackson, the mortgagor, was dead or alive. The defendant professed to derive all "his title from him. He supposed him dead, and therefore claim"ed as his heit. But if he was alive, then the defendant was merely his tenant. In neither case could his possession be ad"verse to that of Jackson, on his mortgagee." & Vide Higginson vs. Mein. 4 Cranch's Rep. 419.

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Where premises were mortgaged in fee, with a proviso for conveyance, if the principal were paid on a given day, and in the mean time that the mortgagor should continue in possession; upon special verdict, it was found that the principal was not paid on the given day, but that the mortgagor continued in possession. There was no finding by the jury either that interest had, or had not been paid by the mortgagor: Held, that upon this finding, it must be taken, that the occupation was by the permission of the mortgagee; and consequently, that although more than twenty years had elapsed since default in payment of the money, still the mortgagee was not barred by the Statute of Limitations; Held also, that an entry is not necessary to avoid a fine levied by the mortgagor. Hall vs. Doe ex dem. Surtees & Al., 5 Barn. & Ald. Rep. 687.

In the case of Pender vs. Jones, (2 Hayw. Rep. 294.) TAYLOR, J. said; "I am of opinion, that a deliberate avowal on the "part of the possessor, of title in the claimant, or a serious assent "to the validity of his title, will render an entry or claim unneces"sary, and is equivalent in its effects to an entry or claim."

But where a Bona fide purchaser from a mortgagor, entered, without notice of the mortgage, (which was not registered till af

ter the commencement of the ejectment suit,) and he and those claiming under him, had "been in the continued possession of the "premises under a colour of title for more than seven years," it was held a sufficient adverse possession to bar the mortgagee, or any claiming under him, from recovering in ejectment. Baker vs. Evans, 2 N. Car. Law Rep. 614, 616.

"Neither a mortgagor nor his assignee can hold adverse possession to the mortgagee, unless the assignee has taken a conveyance without notice, otherwise they are mere tenants at will." Newman vs. Chapman. 2 Rand. Rep. 93.

If a defendant has acknowledged the title of the plaintiff, he cannot afterwards dispute it. Jackson ex dem. Low & Al. vs. Reynolds, 1 Caines' Rep. 444.

But where the lessors proved no seisin or title in themselves, and relied upon proof of an agreement by the person in possession to take a lease from them, but there was no proof that any lease was ever executed or any rent paid, and the defendant claimed to hold adversely, and shewed a title in third persons, the Court after stating these facts, added, "It does not appear that the defend"ant was put into possession by the lessors, or that he ever paid "them any rent. The defendant must have judgment." Jackson ex dem. Southampton & Al. vs. Cooly, 2 Johns. Cas. 223.

And where A. in the year 1779, as the tenant of B. and by his directions entered into the premises in question and took possession, which was regularly continued down to the defendant; and B. at the time wrote to C. (who also claimed the premises, as lying on his, C.'s side of the division line,) that he, (C.) was mistaken in supposing the land to be his own; but that when the times became more peaceable he, B. and C. would have the land surveyed, and if the land did belong to C. then A. should pay him rent, &c. It was held that this letter merely suspended the operation of the Statute of Limitations during the War; and that there having been more than twenty years adverse possession under B.'s title since 1783, C. could not recover. Jackson ex dem. Brott & Al. vs. Hunt. 6 Johns. Rep. 16.

The purchaser of lands sold for the non-payment of taxes, holds adversely to the former owner; consequently can avail himself of 20 years adverse possession. Graves vs. Hayden, 2 Littell's Rep.

61.

Neither cases of trust nor fraud, are within the Statute of Limitations.

"This is a trust estate, against which the limitation does not rur "or operate." Gist & Al. Representatives, &c. vs. Heirs, &c. of Cattell. 2 Equity Rep. (Dessaussure) 55. & Vide West vs. Randall & Al. 2 Mason's Rep. 203.

"It is equally said that fraud as well as trust is not within the "Statute." Kane vs. Bloodgood, 7 Johns. Ch. Rep. 122. (Per KENT, Ch.) & Vide Exors. of Hunter & Al. vs. Spotswood, 1 Wash. Rep. 145.

A purchaser for a valuable consideration, if affected with notice, becomes a Trustee for the true owner, and will not be protected by the Statute of Limitations. Wamburzee & Al. vs. Kennedy & Al. 4 Eq. Rep. (Dess.) 474. & Vide Thayer, Assignee, &c. vs. Cramer & Al. 1 M'Cords Cha. Rep. 395, 398.

As a rule the Statute of Limitations does not operate in cases of fraud and of trusts; but as soon as the fraud is discovered it commences to run; Wamburzee & Al. vs. Kennedy & Al., 4 Ex. Rep. (Dess.) 479. Sweat vs. Arrington, Admr. &c. 2 Hayw. Rep. 129.

The Statute of Limitations "does not reach to matters of di"rect trust, as between trustee and cestui que trust." Coster & Al. vs. Murray, 5 Johns. Ch. Rep. 531. Turner & Al. Exors. vs. Debell, Exor., 2 Marsh Rep. (Ky) 384.

Nor to parties standing in the relation of principal and agent, or factor. 5 Johns. Ch. Rep. 531.

It is a settled rule, that the Statute of Limitations cannot, either in a Court of Law, or Equity, protect a trustee against the demands of his Cestui que trust. Thomas vs. White & Al., 3 Littell's Rep. 177, 181.

Trustees cannot urge the lapse of time against the Cestui que trust. Trustees of Lexington vs. Heirs of Lindsay, 2 Marsh. Rep. (Ky.) 445.

A trustee cannot take advantage of the Act of Limitations, against the claim of the Cestui que trust, or of persons claiming under him. Redwood vs. Riddick & Ux. 4 Munf. Rep. 222.

"So long as the trust subsisted, so long it was impossible that "the Cestuis que trust could be barred. The Cestuis que trust could "only be barred by barring and excluding the estate of the trus"tee." Cholmondeley vs. Clinton & Al. 2 Meriv. Rep. 360.

Land was devised to A. in trust to apply the rents and profits to the support of B. during his life, and in an action by the Cestui

que trust against the trustee to recover the rents and profits, it was held, that the general Statute of Limitations does not apply to trusts. Hemenway vs. Gates, Administrator, &c. 5 Picker. Rep.

321.

"It is certainly true that length of time is no bar to a trust clear'ly established; and in a case where fraud is imputed and proved, "length of time ought not, upon principles of eternal justice, to "be admitted to repel relief. On the contrary, it would seem that "the length of time, during which the fraud has been successfully "concealed and practised, is rather an aggravation of the offence, "and calls more loudly upon a Court of Equity to grant ample "and decisive relief. But length of time necessarily obscures all "human evidence; and as it thus removes from the parties all the "immediate means to verify the nature of the original transactions, "it operates by way of presumption in favour of innocence, and "against imputation of fraud." Prevost vs. Gratz & Al., 6 Wheat. Rep. 497, 498. (PER STORY, J. delivering the Opinion of the Court.)

A legacy or trust is not within the Statute of Limitations; but after a length of time payment will be presumed; yet such presumption may be rebutted by other circumstances; and what operation they should have is for the consideration of the jury. Durdon, Exor. &c. vs. Gaskill, 2 Yeates' Rep. 268, 271.

In the case of Van Rhyn vs. Vincent's Executors, (1 M'Cord's Ch. Rep. 310, 313.) THE COURT, per NOTT, J. said; "For al"though it is a rule in the Court of Equity that lapse of time will "be no bar between a trustee and a Cestui que trust, yet that doc"trine applies only to technical equitable trusts, and not to those "constructive trusts of which a Court of Law as well as a Court "of Equity have jurisdiction."

If a Bona fide purchaser, without notice, but who is a trustee by implication, is to be affected by an Equity, that Equity must be pursued within a reasonable time. Shaver & Al. vs. Radley & Al., 4 Johns. Ch. Rep. 310. & Vide Thompson & Ux. & Al. vs. Blair & Al., 3 Murph. Rep. 583.

"A trustee cannot avail himself of the Act of Limitations; and "it requires plain, strong and unequivocal proof of his renuncia"tion of the trust to divest himself of it for the purpose of "benefiting himself by the Act of Limitations, to destroy "the rights and interests of the cestui que trust. Length "of possession is the strong fact on which the presumption was "prayed. The possession is accounted for by the proof, which "shows how it was acquired by Darnall, how continued, and how "transmitted to his representatives, not inconsistent with his moral "duties, his probity or honour, nor in derogation of the rights and

"interests of the creditors and legal representatives of J. Fish"wick, but for the preservation of the property for the benefit of "her creditors and legal representatives. And by this proof is "the presumption most conclusively repelled." (Per CHASE, CH. J. delivering the Opinion of the Court of Appeals,) 4 Harr. & Johns. Rep. 430. [This was not a case of direct trust, but of trust by implication, or construction of law.]

"It is true, the Statute of Limitations cannot be pleaded against "a breach of trust, nor can a person who has taken a conveyance "from the trustee shelter himself under a plea of that Statute." Boteler vs. Allington, 3 Atk. Rep. 459. (Per HARDWICKE, LORD CHANCELLOR.)

The possession of the cestui que trust, is not adverse to the title of the trustee. Smith ex dem. Dennison & Al. vs. King & Al., 16 East's Rep. 283. & Vide Keene, ex dem. Lord Byron & Al vs. Deardon & Al., 8 East's Rep. 248. Sir William Smith vs. Wheeler, 1 Ventris' Rep. 129.

Cestui que trust, is "tenant at will" to the Trustee, and the possession of the cestui que trust is "the very possession, in consideration of law of the trustees." Earl of Pomfret vs. Lord Windsor, 2 Ves. Sen'r. Rep. 481. & Vide to the same purpose Lethieullier vs. Tracy, 3 Atk Rep. 729, 730.

Cestui que trust, is tenant at will to his trustee, and his possession is the possession of the trustee. Dighton vs. Greenvil, (In Error.) 2 Ventris' Rep. 329.

And it is a maxim that no conveyance by cestuy que trust, can work a forfeiture of the legal estate of the trustee, it has been held that a fine or other alienation by cestuy que trust for life, does not work a forfeiture of his life estate. Sanders on Uses,

201.

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In the case of Letheuillier vs. Tracy, (3 Atk. Rep. 729, 730.) HARDWICKE, LORD CHANCELLOR, said; I will suppose for argument's sake, that Mrs. Tracy had levied a fine sur concessit "of her estate for life; yet as it is a trust estate, and there are "limitations to trustees to preserve contingent remainders, I am of opinion that it does not work a forfeiture of her estate for life, "because it cannot at all hurt or affect the subsequent remainders, "as there are trustees under the will to preserve them, and there"fore such a fine would in Equity operate at most as a grant only "of such interest as she had a power to grant."-"A Court of Equity will never construe such a fine to work a wrong, but it "operates only on the trust to preserve the contingent remain"ders, and not on the legal estate; for Lord Talbot in the case

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