11 Tenn. 201 | Tenn. | 1832
delivered the opinion of the court.
The first question to be considered in this case, is, whether the complainants are barred in part or in whole by the statute of limitations. This point is one in which society is greatly interested. ■ To what description of trusts attempted to be enforced in a court of equity, the statute of limitations does apply, has been a matter of frequent difficulty from the earliest history of the British court of chancery.
The subject has been considered of in modern times-by judges of great learning and ability, but in a manner too diffuse for the convenience of ordinary readers. The court will attempt to extract from the adjudicated cases the principles governing the present cause, without giving a synopsis of all the adjudications on the subject, a practice but too apt to produce confusion even in a regular treatise.
Courts of equity, equally with courts of law, are bound by the statutes of limitation, in all the varieties of bail-ments, loans, pawns, deposites, &c. although express trusts, where there are convenient remedies in cases at law, or by bill in equity. The leading cases that have settled this principle are, Leroy vs. Leroy, Prec. in Ch. 518; Street vs. Millish, 2 Atk. 610; Howender vs. Annesley, 2 Sch. and Lefroy, 607; Kane vs. Bloodgood, 7 Johns. Ch. R. 106; 20 John. R. 14, 600. At law the statute of limitations applies, and may be pleaded in every casein which the species of action brought is embraced by the words of the statute: as “case” in all its varieties. M’Ginnis vs. Jack and Cock, by this court, M. and Yerger’s Rep. 361. 7 Johns. Ch. Ca. 97, 226. 20 Johns. Rep. 576, 610. The conversion or adverse holding, is
The next class of cases subject to be barred, are such as create a trust in the defendant by implication, where the property of complainant has been obtained by defendant by fraud, or unlawful means, and defendant was once liable by bill to be compelled to surrender the property, or make compensation, but complainant did not sue within the limited time. In this class of cases there is no remedy at law; but the trust was not a matter of contract, nor did the relation of trustee, and cestui que trust in fact exist. The cause before the court would have presented an instance, had Trimble been a defendant. Campbell had transferred to him Armstrong’s warrants clothed with the trusts existing between C. and A; yet Trimble was not the express trustee of Armstrong, and could have pleaded the statute of three years to a bill filed for the land warrants issued to himself. Here was a case where no action at law would have lain, but trust and confidence, between T. and A., was wanting. Of this class are, Beckford vs. Wade, 17 Ves. 87, 98-7, and Cholmondeley vs. Clinton, 2 Merivale, 93. The latter has been recognized by this court in Hickman’s lessee vs. Gaither and Frost,
The next enquiry is, does the present cause fall within either of the foregoing classes? To ascertain this, depends on the facts. It appears that in the' year 1799, it was covenanted between Armstrong and Campbell, that Campbell should as an attorney at law, and as an attorney in fact, attend to and transact the business of Armstrong, in reference to certain lands, granted to Armstrong and George Dougherty jointly, lying east of Cumberland Mountain in the State of Tennessee. Camp
Campbell, by this covenant was authorized to sell and dispose of the lands, according to his best skill and judgment; and one third part of the moneys or property, and of the consideration received for the lands or any part thereof, he was to retain, and the other two thirds
The transfer of the lands to Trimble, and the issuance of the warrants to him, and the re-transfer of the warrants to Campbell, must be viewed by the court as mere formalities, not divesting any title Armstrong had to the warrants, or stripping them of the trust attached by Campbell’s covenant of 1799. Equity regards not the circumstance, but the substance of the act. Francis’ Maxims, 13. The warrants located in Lincoln were Armstrong’s, as much as the lands from which they had been raised were his, and the lands located, were the substitute of those from which the warrants had been removed. Mr. Campbell holds these lands in his character of trustee, without having separated the trust from the estate, acquired in his own name, unless he has had seven years adverse possession, within the meaning of the act of 1797, ch. 43, sec. 4. This raises the question, can a trustee having and holdingpossession of the trust estate for his cestui que trust, by any act of his own, without communication with the cestui que trust, so change the character of his possession, as to make it adverse to the cestui que trust, by the lapse of time, and by this means denude himself of his character of trustee, with
Mr Campbell therefore by his conveyance to Trimble, and Trimble’s re-conveyance, did not extinguish or separate the trust from the land; but they were transferred both together. This transaction was a wrong as against Armstrong, the cestui que trusty and no act of law can give it sanction, so as to better the situation of the trustee. He comes within the letter of the authority cited from 1 Inst. and is estopped by his covenant, creating him a trustee, to claim a right grounded on his own wrong, and therefore cannot be heard to say his possession was adverse. The Lincoln lands must be divided; two thirds to Armstrong’s heirs, and one third to defendant.
Mr. Campbell by his covenant with Armstrong, bound himself for one third part of the land, to dispose of it as he judged best. He judged best to have these two warrants located without communication with Armstrong, and did it pursuant to the trust, for the consideration of one third covenanted to be given by Armstrong; nor is there apy measure of justice to make his heirs pay
As to the 640 acre warrant, Mr. Campbell will answer the interrogatory, and inform the court whether it be located on land; if not, how has it been disposed of.
For the warrants drawn in 1807, except the 2000 acres located in Lincoln, Mr. Campbell will pay one dollar an acre. For the warrants drawn after 1807, including the 270 acres withdrawn from the Lincoln land, he will pay 62⅛ cents an acre; the interest to be calculated from the time it commenced in the decree below.
The decree as to the warrants in Armstrong’s name, located in the Western District, will be affirmed. Under the circumstances, Mr. Campbell acted for the best. There is no evidence that the buyers of it could not have their third of the warrants, had they applied; and if they had, the same locating fee would have been necessarily paid by them. There was no breach of trust as to these warrants, and to this part of the transaction, the most equitable rule must be applied.
The court think that compound interest cannot be allowed, save in very peculiar cases, and a majority of the court think this not one of that description. Although Mr. Campbell’s course before the bill was filed, may have been over cautious in not settling with the heirs, and exceptionable in withholding from them a true
As to the objection to the frame of the bill, we think there is nothing .in it. From any thing appearing in the cause, the heirs were entitled to all these lands and warrants; for when the transfer to Trimble is set aside, there is no evidence to show as to whom Mr. Campbell parted with the warrants. If not disposed of at Martin Armstrong’s death, they descended to his heirs, and nothing appears to the contrary.
The master will report as directed, as soon as may be.
Decree accordingly.