Davis v. Bowmar

55 Miss. 671 | Miss. | 1878

Lead Opinion

Campbell, J.,

delivered the opinion of the court.

The actual possession of the land called “Brierfield” by appellant commenced in 1835 or 1836, and continued uninterruptedly to 1863, in the open and notorious and exclusive exercise by appellant of the completest acts of ownership and control of which the land could be the subject, and in a manner inconsistent with the right of any other person, with .the knowledge of Joseph E. Davis, who repeatedly, and by the most unequivocal acts, recognized the ownership of said land by appellant, warrants the declaration that there was vested in appellant a full and complete title to it by virtue of the act entitled “An act to ahiend the several acts of limitations,” approved February 24, 1844. Hutch. Code, 829. Although Joseph E. Davis sold “Hurricane” and “Brierfield” to Montgomery, and took security for the purchase-money payable to himself, he distinctly recognized and declared appellant’s right to “Brierfield,” and subsequently remitted to him the interest accruing on that part of the purchase-money representing “ Brierfield.” It would be difficult ever to establish title to land by occupancy under claim of ownership, if the facts of this case are not held to do it. Ford v. Wilson, 35 Miss. 490; Alexanders. Polk, 39 Miss. 736; Gladney et al. v. Barton et al., 51 Miss. 216; Magee v. Magee, 37 Miss. 138; Tyler on Eject. & Adv. Pos. 864.

The precise circumstances under which appellant’s possession of the land commenced are obscured by the lapse of forty years, and the light of contemporaneous facts is dimmed by the great distance of time from which we are called- on to view them; but it is certain that appellant took possession, under some sort of right in himself, of a wilderness, felled the forest, cleared the jungle, erected fences and buildings, made the place his home, cultivated it, protected it by levees, had it assessed as his own, paid taxes on it, and enjoyed exclusive possession and control of it as his own from 1836 to 1863; and, in the uncertainty, if any, from the imperfect knowledge we have as to exactly how the possession began, appellant is entitled to the benefit of the just presumption that he was holding- as owner, from having acted so long, and, from ihe beginning, as owners do, and so inconsistently with the idea of title in any other than himself. If the evidence negatived the idea that appellant first took possession in any other character than that of owner, the case would be different. Prior to the ratification by appellant of the sale b}' Joseph E. Davis to Montgomery, he was invested with a full and complete title to “ Brierfield ; ” and after his assent to that sale, he had a valid claim against Joseph E. Davis for that part of the obligation given by Montgomery representing the purchase-money of “ Brierfield.”

Was appellant precluded from asserting this claim by the mere fact that he qualified as one of the executors of the will of Joseph E. Davis, assuming that the will disposes of all of the obligation of Montgomery? At common law an executor could retain the assets coming into his hands for his debt, and because he could do this he lost his claim if he had the opportunity to retain and did not. By our law an executor is not allowed to retain for his claim, but must probate it and stand on the footing of other creditors. If Joseph E. Davis had received the purchase-money for “Brierfield,” and died holding it, he would have been debtor to appellant for money had and received, and appellant would have been entitled to probate his claim against the estate.

But Joseph E. Davis had not collected the purchase-monejq and at his death held the obligation ho had taken for it.

It is established law that a trustee cannot avail of his position to acquire title to the trust property adversely to his cestui que trust; and cannot, by virtue of his position, obtain any advantage for himself over his cestui que trust; and cannot make profit for himself out of the trust estate; and that his possession is that of the beneficiary, and for his advantage and benefit; and that a trustee, having •obtained possession of trust property by virtue of his trust character, shall not retain that possession against the claim of the beneficiary when properly called on to surrender it. But no case in England or America has been found to hold that a trustee may not appeal to the Chanceiw Court, to which he is subject as a trustee, to adjudge his rights as an individual to .an interest in the trust property, not acquired since he became trustee, nor in hostility to the cestui que trust, but had before his acceptance of the trust.

Perry on Trusts, section 433, has the following, viz. : “ Under no circumstances can a trustee claim, or set up a claim to, the trust property adverse to the cestui que trust. Nor can he deny his title. If a trustee desires to set up a title to the trust property in himself, he should refuse to accept the trust.” All of the cases cited in support of this language accessible to us have been carefully examined, and they do not sustain the expression of the text in its full extent. Stone v. Godfrey, 5 De G. M. & G. 76, decides that one may be estopped by his eouduct from maintaining a suit, and that possession obtained in the character of trustee cannot be retained as one adverse to the cestui que trust after the legal estate under which the possession was taken has determined. In the leading opinion the Lord Justice Knight Bruce assumed that Stone might have, “ at any time between the majority and marriage of his daughter, filed a bill against her for the purpose of obtaining-substantially the same relief as he is now asking, and upon the same ground,” and that “ he would have been entitled to succeed in his suit.” This is a distinct admission of Stone’s right to have sued his cestui que trust, and to have asserted his individual claim to the subject of the trust, although he had treated it as her property. But, as he had acquired possession of the land as trustee, he was disabled from saying that possession ivas for himself; and having slept on his rights from 1824 to 1852, and so acted as to induce the belief that his daughter’s title was perfect, on the faith of which the position of others was altered so that it would have been great injustice to permit him to assert his claim, on well-settled principles he was held to be estopped from asserting his title.

Pomfret v. Windsor, 2 Ves. 476, Kennedy v. Daly, 1 Sch. & Lef. 381, Conry v. Caulfield, 2 Brod. & B. 272, Shields v. Atkins, 3 Atk. 560, and Longley v. Fisher, 9 Beav. 90, announce the doctrine that “ fine and non-claim ” will not bar a trust, on the principle that the trustee, having .gained possession by means of the trust, shall not, by means of that possession, defeat the title of the person for whom he had the possession. In other words, that a trustee shall not take advantage of his possession — which is the cestui que trust’s — and control of the trust estate, to cut off and bar the claim of the cestui que trust by alienation.

Newsome v. Flowers, 30 Beav. 461, declares that trustees,, when sued by their cestuis que trust, cannot set up against them the adverse title of third persons. Benjamin v. Gill, 45 Ga. 110, is “ put solely on the question of possession.” The ancestor of defendants had “ got possession of this land by virtue of his office as executor,” and, when sued by his successor in the administration, they were not allowed to defeat the recovery of the possession by an adverse title. Harrison, Admr., v. Mock et al., 10 Ala. (n. s.) 185, decides that a judgment-creditor, by accepting the position of trustee in a deed couveying to him slaves for the payment of creditors generally, including himself, waived the lien of his judgment so far as to preclude him from selling under his judgment; and to this effect are Hawley v. Mancius, 7 Johns. Ch. 184, and Rogers v. Rogers, Hopk. Ch. 523. The reason is that he has accepted a substitute for his right to proceed under his judgment, and must look to the substitute. Godwin et al. v. Yonge, 22 Ala. 553, holds that “ it did not lay in the mouth of Godwin, who was a trustee, and had taken upon himself the trust, to allege fraud in the making of the deed as a defense to the relief sought as to him, which was only the reformation of the deed and the appointment of another trustee.” It was a matter that did not concern him. Henderson v. Segars et al., 28 Ala. 352, decides that a trustee could not dispose of the trust property by sale, in direct opposition to the provisions of the instrument creating the trust, and refuse to account when called on. Irby, Admr., v. Kitchell, Admr., 42 Ala. 438, decides that an administrator who finds property among the assets of the estate and takes possession of it as such, having no claim to it himself, cannot refuse to account for it on the ground of an adverse title never asserted against him. McLaren v. Spence, Admr., 6 Ala. 894, holds that one who was administrator of two estates was estopped from 'asserting, against one who had acted on his conduct, that certain property which he had treated as the estate of one of his intestates belonged to the other. Manigault v. Deas, 1 Bailey Eq. 283, decided that neither an executor nor his representatives could deny the title of his testator to property in his possession as executor, as against creditors of the testator, and could not acquire a title adverse to his by operation of law, and that the possession of an executor is not adverse to the estate so as to mature a title under the statute of limitations. McLeran v. Melvin, 3 Jones Eq. 195, holds that one who accepted the position of trustee, under a deed settling property to the use of a married woman, could not afterwards subject that property to his •demand against her husband, subsequently accrued. Duncan v. Bryan, 11 Ga. 63, announces that one who has accepted the office of trustee shall not, when called on by his cestui que trust to account, repudiate the trust. Jones v. Butler, 30 Barb. 641, holds that a trustee receiving property under a deed of trust cannot, when called on in equity to account, make objection that the deed Avas void, and on that ground retain the trust property to his own use. The State v. Merrill, 1 Chand. 258, decides that one Avho acquires possession of property as an agent cannot compel his principal and a third person to implead to determine their rights to it while he retains possession. White v. Swain, 3 Pick. 365, decides that an administratrix who received money as damages for an injury to the rights of her intestate, in virtue of her claim as administratrix avos estopped to deny that it Avas the estate of her intestate.

Lewin on Trusts and Trustees, page 325, asserts “ the general proposition that a trustee is under no circumstances alloAved to set up atitle adverse to his cestuis que trust,” and refers to the same English cases cited by Perry, aud to no others, which, as shoAvn above, do not sustain the general proposition in all its comprehensiveness of statement. The review of cases cited from English and American reports shows that the broad assertions of Perry and Lewin must be qualified by the principles deducible from the cases they cite. No such doctrine is stated by Hill on Trustees, Avho puts it correctly, thus, viz.: “ It is one of the settled principles of courts of equity that trustees shall not take advantage of their situation to obtain any personal benefit to themselves at the expense of their cestuis que trust.”

Perry on Trusts, in section 863, repeats the assertion that “ no trustee, Avhile occupying a place of trust and confidence, should be alloAved to set up an adverse title,” and proceeds at once, in the next section, to state a modification of the rule to be “that if a trustee repudiates the trust by clear and unequivocal acts or Avords, and claims thenceforth to hold the estate as his oavu, not subject to any trust, and such repudiation and claim are brought to the notice or knowledge of the cestui que trust in such manner that he is called upon to assert his equitable rights, the statute [of limitations] will begin to run,” etc.; and this is well sustained by adjudged cases. If it be true that a trustee, by his oavu act, brought home to the cestui que trust, can, by lapse of time and operation of laAV, bar and defeat the beneficiary, and hold the estate to himself thereby, on what just principle can it be denied to a trustee to resort to chancery, prefer Ms claim, summon the cestuis que trust and co-tnistees to meet him on equal terms in this forum, and obtain the decree of the court as to his rights as an individual and his duties as a trustee, especially where, as in this case, it is by no means clear that the instrument creating the trust has made any disposition of the subject-matter of the claim of the trustee? The right of an executor to do as appellant did in this case has been expressly affirmed in Saunders v. Saunders, 2 Litt. 315, and it has been distinctly recognized by this court in Mc Willie v. Van Vaeter and Wife, 35 Miss. 428, in Avhich McWillie, avIio was executor, and had proved the will, creating him in express terms the trustee of certain slaves, when called on to deliver them to the legatee and cestui que trust, in accordance with the- will, set up a claim of title in himself to the slaves, by virtue of a deed made to him by the testator before the making of the Avill; and his right to propound his claim ivas not questioned by counsel or court, although the case Avas very much considered. Have the acts of appellant estopped him to maintain this bill? The acts relied on to do this are the recognition by him of the inventory of the assets of the testator, containing”, among other things, the obligation of Montgomery and sons to Joseph E. Davis for the $300,000 ; that at a meeting of the executors, participated in by appellant, the ivhole $300,000 was recognized by him as having been disposed of by the will; that he received commissions as executor; that he received interest arising from the Avhole fund, as guardian, for his children, and, as executor, paid interest arising from the whole fund to the other legatees ; that he concurred in a resolution of the executors by Avliich the Avhole fund is treated as assets, and Avhich charges that fund Avith the expenses of the trust, and rendered accounts to the court in Avhich the fund is thus treated, and took his commissions out of it; and he contracted in Avriting Avith the residuary legatees to accept payment of a demand in his oavu faVor, against the testator, out of the residuary fund; and, in making this contract, recognized the residuary legatees as entitled to said excess.

These acts, severally and combined, fall short of being an estoppel, because no one was led thereb}7 to act to his hurt in any matter differently from Avkat he otherwise would have done. A man may controvert his admissions and his acts, so long as doing so will not cause injury to some one who has been induced, on the faith of such admissions or acts, to do what otheiuvise he Avould not have done, and Avho will be injured by permitting such admissions and acts to be questioned.

If there has been no alteration in the position of another, and no harm done by the acts of one, such acts do not constitute an estoppel, whatever weight maj7 attach to them as evidence.

Injury to others, Avhose conduct has been influenced by the act or admission, as the result of such conduct so induced, is a necessary element, without Avhich an estoppel will not arise. Herman on Estop., sec. 323 et seq.

There must be Avrong, coupled Avith an injury that is the legal result of the Avrong. Ib., sec. 325.

Unless the act or admission has been the inducement to a course of action which Avould result in a loss if appellant Avere permitted to change his position and enforce the right Avhich he seemed virtually to Avaive by his acts as enumerated, they do not amount to an estoppel. Ib., sec. 327; Turner v. Waldo, 40 Vt. 57; Hunley v. Hunley, 15 Ala. 91; Carter v. Darby, 15 Ala. 696; Whitaker v. Williams, 20 Conn. 98; Wallis v. Truesdell, 6 Pick. 455; 1 Greenl. on Ev., sec. 209.

It may be affirmed with confidence that no injury has resulted, or can result, to any one from any course of action induced by any act of appellant. The inventorying the obligation of Montgomery and sons, the recognition that the whole fund was disposed of-by the will, the receipt of commissions, the receipt and payment of interest on legacies, treating the whole fund as assets, charging it with expenses and rendering .accounts, are all acts quite independent of the legatees, and wanting in that essential element of an estoppel that the conduct must have been with the intention that others should act on it, or calculated to induce a reasonable man to believe it was so meant (Big. on Estop. 480), as well as in that other •equally necessary element that others must have been induced to act upon it, and that injury will result from such action thus superinduced, if an estoppel shall not be held to arise. 'There was no intention that any one should act upon any of these things, nor does it appear that any one did so act. 'The inventory was required by law, and properly embraced the obligation of Montgomery and sons which was payable to •Joseph E. Davis. The declaration of the executors that the whole fund was disposed of by the will was but an opinion; •and the resolution to charge debts and expenses on the excess •of the fund after payment of legacies was but the utterance of an intention to pay these things from this particular source.

The receipt of commissions, and the receipt of interest as guardian of his children, and the payment of interest to other legatees, were but in accordance with law, and possess none of the elements of an estoppel; and so of rendering accounts to the court.

These things did not induce any course of conduct as their legal result which requires that appellant shall be held to the •waiver of his rights in order to prevent injury to those, thus pursuing such course of conduct. There has not been an alteration of the position of any one to his injury in conseqiience of these acts of appellant. If none of these things had occurred, the rights and the position of all concerned, as to the subject of this controversy, would have been the same they are now.

The contract made by appellant with the residuary legatees-lacks an essential element of estoppel in that it in .no way injured the legatees in reference to the subject o.f this suit.. This contract amounted to an agreement by the residuary legatees to recognize appellant’s claim so far as to consent for it to be paid out of the residuary fund after payment of' taxes, general debts, expenses of administration, and interest on the legacies chargeable on the bond of Montgomery and sons; and on the part of appellant it was an agreement to-accept payment of his $10,000 demand if there was anything left. This contract had no reference to anything but the $10,000 claim; nothing else was in the contemplation of the parties. Appellant has not received anything under it. Undoubtedly there is much in the conduct of appellant, before-exhibiting his bill, which is inconsistent with his present attitude as a complainant; but we fail to find in it an estoppel to maintain his suit. It is not for us to find an explanation of' the reasons for the course of appellant in withholding .his assertion of his rights as he did, and proceeding with his duties-as executor in a manner to signify that he waived his individual rights. As his conduct does not amount to an estoppel, it is-to be considered only as evidence against the claim set up in his bill; but, as we have seen, the evidence of the right of' appellant to claim that part of the obligation of Montgomery and sons representing the value of “ Brierfield ” is entirely satisfactory, and far outweighs the negative testimony arising from the passiveness of appellant as to his claim, and his acts-in dealing with the estate.

It is evident that appellant hesitated to assert his claim, remained silent about it, and so acted ,as to negative the idea, that he had any; but because of this alone he is not precluded from changing his purpose. Langdon v. Doud, 10 Allen, 433.

It is probable that appellant had deliberately resolved to submit in silence to the dispositions of the will, and to surrender his own claim, from considerations of delicacy or prudence ; but a locus pcenitentice existed so long as he could change his-course without being charged with having misled any one concerned to his prejudice by such former course.

The decree dismissing the bill is reversed, and the cause remanded, to be proceeded with in the Chancery Court in accordance with this opinion.

Upon the application of Harris & George, of counsel for the appellees, a reargumeut of the case was granted.

Adverse counsel have a chapter in their printed argument headed “The Argument as to the Entry.” When it is considered that the only evidence relating to the entry, that is — the beginning of the occupancy — as distinguished from the rest of" it is that it was the result of an absolute gift, their boldness becomes admirable ( ?). Their argument is that the law presumes entry in subordination to title, and, therefore, the parol gift being ineffectual to convey title, Mr. Davis’ entry and. subsequent occupancy was permissive. This is known in logic as the fallacy of “petitio principii.” It is no answer to this, criticism to reply that the onus is on us to show that the entry was, in its inception, under a claim of ownership. We have-conceded it. We have assumed that onus. We have borne it. We have shown that it was so understood by both the parties. We have shown that its occupancy, in its inception, was accompanied by unequivocal acts of ownership. There is-no distinction between his occupancy at first and afterwards. His claim of ownership was coincident with his entry. His entry was in consequence of his haviug acquired a claim of ownership, and was the act of appropriation. By such an argument as we are criticising every adverse possession could be converted into a permissive one. When resort is had to. adverse possession, it is because the party is without the means-of showing, by proof aliunde, that he had a legal right to make the entry. The entry and the continuous occupancy are not separate things, either in law or fact. They constitute, in law and in fact, one continuous act. The entry is but the beginning of the occupancy. The attempt to separate them into two distinct acts and facts is the purest sophistry. To say that “ the character of the occupancy must be interpreted by the character of the entry, and the latter not by the former,” is an ingenious and plausible, but specious, manner of saying that an occupancy must not be judged of by its own visible character when it begins, but that there must be proof aliunde to show why and how it begun. We say that, like all other facts, it may be shown either way. If we show a parol gift first, we thereby show the nature of the entry, and thus determine the character of the occupancy begun in pursuance of it. If we show an occupancy bearing in its inception all the characteristics of ownership, we then show its character, including the entry, which is but the beginning of it, by its own visible, inherent, and inseparable properties. The latter is the direct proof, the former is the ' showing cause of the entry ; and, judging of it as an effect by the character of the cause, both modes are equally admissible and equally effectual. We have resorted to both, and our proof is compounded of the multiplied strength of these factors.

In replying to the arguments in support of the estoppel invoked against Mr. Davis, we will premise the following principles:

1. Estoppels by Writing. — 1. If the admission was itself the subject-matter of the contract so that it was the consideration given by one of the parties, then the estoppel is complete. •

2. If the admission was not the subject-matter of the contract, though assumed either expressly or implied, it is conclusive for the purpose of the contract only, and then only so far as necessary to maintain its validity and enforce its obligation.

3. The acceptance of a mortgage or deed conveying one’s own property is not an admission of right in the grantor, and, so far as it works any estoppel, it is limited to the purposes and objects of the instrument.

4. If a deception were used to obtain an executory contract, it would constitute an infirmity in the contract rather than an ■estoppel.

5. If such a contract should have been executed, the fraudulent deception would entitle the injured one to affirmative relief and reimbursement.

6. The alleged deception must have actually deceived.

7. It must, also, either have been actually intended to de-

ceive, or the circumstances must have been such that the intention will be presumed. *

8. The deception must have been the proximate cause of the contract.

II. Estoppel by Matter in Pais. — l..The admission must have been made with a full knowledge of the right alleged to b.e precluded.

2. There must have been an intention to deceive and defraud, or there must have been an obligation to inform and prevent deception.

3. The party invoking the doctrine must have been in fact deceived.

4. The party deceived must, in consequence of the deception operating as a proximate cause, have been induced to a course of action which must result injuriously to his interest unless the estoppel is enforced.

5. The injury must be the immediate effect of the course of conduct to which the party was induced.

6. The admission must relate to a fact. If it is inferential, therefore, and may as well be referred to the intention to waive a right as to an admission of its non-existence, estoppel will not result.

7. “The injury must be co-extensive with the estoppel.’.’ See Hawes et al. v. Marchant, 1 Curt.' 114.

8. And if it is not, the estoppel will be limited so as to compensate the injury if already sustained.

9. It is always a shield — never a sword ; it is a fundamental rule that it operates to protect from loss — never to acquire a gain.

These principles and limitations furnish a complete answer to the arguments founded on estoppel, by whatever name it may be called. In the argument at the bar, our learned adversary, being pressed to point out the essential elements of estoppel in this case, denied that he rested his defense on the principles of estoppel, but said that it was founded in the doctrine of trusts. We are not particular about the name which is giveu to the defense, but we deem it proper to premise that a change of name is not an answer to an argument directed against an attempted misapplication of unchanging principles to unchangeable facts. These facts, whereby one may be precluded from showing the truth or asserting a right, must be such as to comprise in their relation certain elements essential to what is usually termed the doctrine of estoppel in pais, or equitable estoppels. Whether it be an estoppel by waiver, by election, by acquiescence, by ratification, by silence when one ought to speak — whatever form it may assume in the infinite variety of transactions and relations between men, the principle by which the estoppel is enforced is, in substance, the same. It is not the result of a statute, nor of precedents, nor of ancient maxims of the law, nor. .of inexorable rules of any kind. It had its origin in truth and justice, and has been sustained in its growth by a strong instinctive tendency in just judges to so administer the law that .justice shall be attained in the particular case.

Joseph E. Davis sold the property of his absent and imprisoned brother, and took security in his own name, in a note given for that and some of his own property. He assumed to be acting in trust for Jefferson, and on that ground sought and obtained his ratification. Thus Jefferson Davis could never again recover his own property from the purchaser. He could look alone to the fulfillment of this voluntarily assumed trust. Here were, indeed, all the elements of estoppel. Collins v. Tillon, 26 Conn. 374. Now, because Jefferson Davis accepted the office of executor, in compliance with, the dying request of his brother, his legatees — mere volunteers and objects of bounty, benefited and not injured by the acceptance— repudiate the most sacred of trusts, assumed and recognized by their benefactor up to the last moment of his existence, claim to be released from an estoppel of the very highest dignity in law and in morals, and are, at the same time, clamoring about “ fidelity to trusts.” It is not attempted to show that there exists any just consideration for the confiscation of complainant’s property, nor any for its donation to the defendants. He has done them no injury, by silence, waiver, acquiescence, or acceptance of trusts, for which he is called upon to' compensate or indemnify them. He has not beguiled them into any act against the injurious effect whereof he is called upon to guard them, by transferring his own fortune to their use. He has not acquired an advantage over them so that they, cannot defend against his claims if they are in any respect unjust or unconscionable. None of these things, which, as we have seen and are able to understand, sometimes justly preclude rights, are, or can be, asserted against him. The argument is that “the integrity of the whole round of fiduciary relations demands the application of the rule.” It is called a “ wise, conservative doctrine, venerable, nay, almost sacred, as it stands in the body of our jurisprudence.” It is said to rest upon “ broad principles,” and its enforcement is a “ great preventive and conservative remedy, founded in an elevated and enlightened judicial policy.”

These are mere figures of speech, embodying sufficient beauty to- attract, and sufficient force to impress, but not sufficient plausibility, it is hoped, to impose upon this high and learned court. The “ purity and integrity of judicial administration ” is a good thing, and “fidelity to trusts ” ought to be enforced, in the interests of justice and morality, with an unfaltering hand; but parties ought not to be heard in any court, seeking to make a conquest of another’s property, on the pretense of •upholding the “ purity of judicial administration,” or of enforcing “fidelity to trusts.” This would be to “steal the livery of Heaven to serve the devil in,” and would be enforcing “ fidelity ” after the manner of the natives of India, who threw the living body of the widow on the burning funeral pile of her dead husband. The application attempted to be made of this “ doctrine of trusts ” in this case is itself a refutation of it as contended for by defendants. The result of its application to this case reduces it to the argumentum ad absurdum. If any such “venerable doctrine” had come “down to us through man}'’generations and a long line of decisions,” we should confidently ask the court to lay it aside among the venerable rubbish of the past.

But the real doctrine, which is sought to be misapplied to suit the purposes of the defense, is just and reasonable. We desire no relaxation of the strictest rules, but rather a close adherence to every rule and to every doctrine which will in- ' sure a just judgment according to the very right of this cause. It has long been the greatest reproach to the common law that ■judges have acknowledged themselves so hampered by some of its rules of procedure and of administration that they were unable to give just judgments. Never before has a similar charge been made against our system of equity jurisprudence. The highest boast of its learned chancellors has been its unlimited power to do absolute justice. In this forum the shackles which unjustly impede one at law are dissolved, and fall to the ground. The hands of the weak are here strengthened, that they may wage a just cause in equal combat with the strong. Here the feme covert, the lunatic, the infant of the tenderest years, may be sued, and their rights may be adjudicated. Controversies between trustees and their cestuis que trust have been part of its original and peculiar jurisdiction from time immemorial. Its powers are adequate ' to do justice between all parties, whatsoever may be their relations. Misfortunes of mistake, error, and ignorance are not beyond its power to relieve ; and tbe ingenuity of fraud can invent no device which it may not strike down. Its forms and modes of procedure,.and its rules and doctrines, are all of its own creation, made to facilitate, not to impede or prevent, the administration of justice.

The foundation of this argument, on what is called the “ doctrine of trusts,” is a passage found in Lewin on Trustees, page 325, to the effect “ that a trustee is under no circumstances allowed to set up a title adverse to his cestui que trust.” This is Lewin’s own saying, and is contradicted in his next sentence. In our argument before the court we made a critical analysis of all the cases cited in support of this observation, and we do not fear to assert that not one of them sustains the text, if it is to be understood as meaning broadly what it says. From an examination of the cases cited, we conclude that the text is to be construed as referring to an attempt on the part of the trustee to set' up a possession acquired as trustee as adverse, by claiming that his possession was in his own right. That, at most, is the extent to , which his citations go. All of the cases cited in Lewin, and all of those added by counsel, belong to one or the other of the following classes:

1. Cases where the trustee undertook to set up his possession as adverse.

2. Cases where there existed the other essential elements of an estoppel in pais.

3. Cases where, the trustee sought to invoke statutes of limitation and non-claim, on account of the duration of his possession.

In all such cases the trustee is rightly estopped from claim- . ing the title to the property, for the purpose of showing that his possession is to be referred to his claim of ownership, in order to set up the bar of statutes, and thus actually acquire a title.

The remedies afforded in the enforcement of rights are themselves valuable rights, protected, in many instances, by the organic law. Hence it is no misnomer to speak of these remedies as rights. Where, liowevér, it becomes important, as it now is, to' distinguish the right from the remedy, the mental process necessary to accomplish it is so simple as to render any reasoning unnecessary, if not impossible. Keeping this distinction steadily in view, we assert with confidence that whenever an adjudication has been made by any court of respectable authority which seems to have declared the right of the trustee lost, waived, or forfeited by becoming a trustee, it has refoi’ence to a right to a remedy, and not a right as distinguished from a remedy.

The case of Saunders’ Heirs v. Saunders’ Executors, 2 Litt. 315, is a forcible illustration of the distinction which we take, and is a complete refutation of the idea that the trustee loses his property, and the cestui que trust is permitted to win it, by this novel “doctrine of trusts.” This case, while denying the executor’s right to sue his co-executors for property which had come to him as one of the executors, on the ground that his right of action was extinguished, and while denying his right to bring to his aid his long possession,'with assertion of his individual claim, decided that he might maintain “ a suit in equity to which the devisees, as well as the other executors, might be made parties, and obtain a decree quieting the claim, exempting the executor claiming from holding the estate in his fiduciary character, or accounting.for the profits.”

That the trustee yields his remedies merely, and no part of his rights, by becoming trustee, is illustrated by several of the cases cited by adverse counsel. The case of Manigault v. Deas, Bailey Eq. 283, illustrates three of the propositions of law and equity jurisprudence which we have contended for. The three head-notes marked “ 2,” “ 3,” and“ 7 ” contain a statement of them. The one marked “2” is simply based on the doctrine that the executor can make no profit. It is precisely analogous to the case cited in Irby, Admr., v. Kitchell, Admr., 42 Ala. 447. The syllabus marked “3” is on the question of adverse possession, when an executor seeks to set it up. The ■case above cited from Kentucky elucidates the question fully. No executor can, of course, obtain title by length of possession. The possession follows the right, and will be referred to the character in which he holds it. . The syllabus marked “ 7 ” is a most emphatic refutation of the proposition of the defendants. An executrix was there allowed to insist upon, and establish, her own claim to the property against her testator. The- foregoing case of Saunders’ Heirs v. Saunders’ Executors is pertinent to other questions which have already been discussed. It discusses the following propositions :

1. The possession will be referred to the person in his character as executor or as an individual, as the right of the matter maj7 appear. There can be no adverse possession, and neither the executor nor the estate can be barred by lapse of time.

2. The right to prosecute an action against the estate of a testator is extinguished by' assuming executorship; and, therefore —

3. “If one of the executors claims in his own right part of the property of the testator which is in his hands as executor, his remedy is by bill in equity against his co-executors and the devisees ;” and —

4. “An executor may retain as his own any article of his own property which comes to his hands as executor.”

The cases of Harrison, Admr., v. Mock et al., 10 Ala. 185, Hawley v. Mancius, 7 Johns. Ch. 184, Rogers v. Rogers, Hopk. Ch. 523 — all citations of appellees — show that there is no loss of a right, but a waiver of a remedy. Justice and equity are still administered, and the trustee is permitted to have and retain whatever he may be entitled to, according to the very right of the matter.

For the purpose of torturing • the compromise of the $10,000 claim into an estoppel, it is said by counsel for appellees that one of the considerations of the argument given by appellant was “ the concession, as the basis on which the contract Avas made, that all the debt of the Montgomerys belonged to the estate, and that, at all events, the defendants should receive their specific legacies in full.” Let us see Avhat foundation there is in the agreement or the record for such a statement. Mitchell and Hamer, defendants, in their ansiver, under oath, sajr that, at the time this contract Avas made, “ they had no notice or suspicion that Jefferson DaAds had, or claimed to have, any interest in ‘ Brierfield,’ or its proceeds.”

Noav, in Avhat sense can an admission on a subject of Avhich the parties to the contract now claiming the benefit thereof Avere totally ignorant, be called a part of the consideration of the contract, or a concession made for value? Yet upon this fallacy rests most of the argument of the learned counsel on this branch. According to their vieAY, defendants Avere induced to enter into a contract by a concession as to a claim of Avhich they had no suspicion, and that concession made after they had signed an agreement not containing it.

Under a reasonable and proper construction of said contract there is no agreement that the interest due by B. T. Montgomery and sons shall be used to pay taxes, genei’al debts, and necessary expenses of the estate, and the interest on the respective legacies made chargeable by the Avill upon the funds arising from Brierfield aud Hurricane plantations; but only that these shall, out of the interest of the fund, have a preference of payment over the claim of the complainant then being adjusted.

The fact that appellees “had no notice or suspicion that Jefferson Davis had, or claimed to have, any interest in the ‘Brierfield,’ or its proceeds,” is not only conclusive against the construction attempted to be put upon the agreement, but the “concession made for value” becomes a physical and moral impossibilit3r. Such a pretense should justty draAV suspicion on their complaints of being misled. Noav, if it had been true that this implied admission was the consideration of the contract, if they had agreed to pay 110,000-in settlement of the present claim of Mr. Davis, if his rights to the proceeds of “ Brierfield ” had been within the contemplation of the parties, the subject-matter of this contract, the thing settled and compromised, the argument would be good. But if it is argued, further, that although, it is not true that this implied admission was part of the consideration, yet that the. contract was made on the basis of the assumption that the appellees, owned all the proceeds of the land, this argument proceeds upon a false theory of the law. Its major premise is not true. Let us state it: Every fact treated as true in a contract, though not of its essence or subject-matter, is forever afterwards held to be conclusively true between the same parties in controversies foreign to the subject-matter of the contract. We challenge the proposition as unsound in reason, and as distinctly negatived by the text-writers and judicial decisions. The proposition will be true if you strike out the words after “parties,” and in lieu thereof insert the qualifying words, “ for the purposes of said contract — that is, to maintain its validity and enforce its obligation.”

In Bigelow on Estoppel, page 286, it is said : “ The effect of the estoppel, further, is limited to questions concerning the deed. That this limitation prevails, preventing the estoppel from having a collateral effect, appears from many cases.” Carpenter v. Butler, 8 Mee. & W. 209; Southeastern Ry. Co. v. Warton, 6 H. & N. 520; Norris v. Norton, 19 Ark. 319; Reed v. McCourt, 41 N. Y. 439; Herman on Estop. 267, sec. 246; Hays v. Askew, 5 Jones L. 63. In the last ease Judge Pearson said that, to render a recital an estoppel, even in a controversy about the subject-matter of the deed, it must show that the object of the parties was to make the matter a “ fixed fact,” as the basis of their action. In Reed v. McCourt, supra, speaking of the same limitation, it is said that jf the rule were otherwise the term ‘ ‘ odious ” “ would but feebty express the contempt which ought to exist against the rule.”

Let it be answered, then, whether this estoppel has such potency as to take the $70,000 away from Mr. Jefferson Davis without compensation, and give it to the defendants without consideration. It becomes a question, then, whether this estoppel has such properties that it may impoverish one man to enrich another. We have always been taught to understand that estoppel never has bettered any man’s condition ; that it never has armed one with a sword with which to make conquests, but only with a shield with which to defend that which is already his. Where a third person has made off with money or goods or property, it settles who shall sustain the loss between the two others, in a proper case ; but never, under any circumstances, where no loss is necessary, does it take from one and give to the other. If this effect results from an attempted application, it is a waste of time to reason, to consult authorities, to consider arguments. If the compass should point to the rising sun, no one would give credence to its indication. It is impossible to conceive a case where one could be tricked out of his estate by estoppel, so that it'would go to another as a clear gain. The one might well lose it by negligence or fraud, or attempted fraud, but never by an estoppel set up against him by a person thus seeking to add it as an acquisition and accretion to his own estate.

From the inception of this case complainant has been confronted at every step by this hydra-headed monster, estoppel — professing to hold only a shield, but always wielding a sword; pretending to protect only, but always reaching out to grasp ; now seeking, under the guise of a rigid executioner of the law, to capture and appropriate, by reason of its inexorable rules; again, proclaiming itself the minister of pure morality and justice, asking to be made rich at appellant’s expense, to vindicate the principles of abstract right; now asking for his property the better to maintain the fidelity of trusts and the pure administration of the law.

In whatsoever guise he has appeared, bristling with the keenest weapons of offense concealed beneath his armor-plates, talking of reason and logic, yet ever seeking to delude by fallacy and sophistry, he is always striving —now boldly, now insidiously— to acquire appellant’s property, by every effort which ingenuity can devise, and with every argument which can be suggested by the exigencies of a relentless purpose.

'. So surely as we may know a tree by its fruits, so surely do we know this is no estoppel.

Chalmers, J.,

delivered the opinion of the court.

On November 19, 1866, Joseph E. Davis sold to Montgomery and sons two contiguous plantations, in Warren County, known respectively as “ Hurricane ” and “ Brierfield,” for the sum of $300,000, due in ten years, with six per cent interest from date, the interest payable annually. The bond of the purchasers was taken for the principal sum, and nine notes of $18,000 each, due at the expiration of each year, were delivered for the interest; and, to secure payment of the whole, a mortgage was executed on the property conveyed. The bond remains wholly, and the notes partially, unpaid, and Jefferson Davis brings this bill against Montgomery and sons, and the personal representatives and 'legatees of Joseph E. Davis (now deceased), seeking to recover in his own behalf such portion of the sum due as represents the value of “ Brier-field,” alleging that he was, and that Joseph E. Davis was not, the owner of that plantation.

.He is himself one of the executors of the last will and testament of Joseph E. Davis, by the terms of which the whole of these notes are supposed to have been devised to the special and residuary legatees named in the will. Was Jefferson Davis the'legal owner of “ Brierfield? ” If so, he is entitled to the relief prayed, unless his conduct has been such as to estop him from claiming his own, or unless his position as executor forbids the assertion of his legal rights. Three questions, then, are presented by the record : First, was Jefferson Davis the owner of “Brierfield?” Second, has his conduct been such as to estop him from claiming its proceeds ? Third, Does his position as executor debar him from asserting his rights ? Each of these questions depends upon facts and principles distinct from, and independent of, those which control the others ; and nothing but confusion can result from mingling them together.

Wé will address ourselves, first, to the question of ownership, as being the primary and fundamental one in the case.

It is admitted on one hand that Jefferson Davis held actual possession of “ Brierfield ” for nearly thirty years. It is admitted on the other that he had no deed nor any written obligation to convey the title, but that the record or paper title was always in Joseph E. The claim on his behalf is that he entered under a parol gift from Joseph E., which was either wholly gratuitous, or partly gratuitous and’ partly in liquidation of an indebtedness due him from Joseph E., and that the possession taken under this parol gift ripened, by lapse of time, into a perfect title. The claim pn the other hand is that he entered and held by permission of Joseph E., in subordination to his title, with an express or implied understanding that he was to enjoy the possession and usufruct as long as he chose, but without claim of ownership; or any pretense of right adverse to the record-title. It is conceded on one side that, if he entered as tenant, his long possession gave him no title. It cannot be denied on the other that, if he entered as owner, his title became perfect and indefeasible by virtue of the act of 1844. Hutch. Code, 829. Our predecessors have twice, declared that that statute was something more than a statute of limitations ; that, by its terms, “ ten years’ actual adverse possession by any person claiming to be owner ” gave a perfect title, which could be asserted after the possession had been lost, in any court, or in any proceeding whatever. Ellis v. Murray, 28 Miss. 129; Ford v. Wilson, 35 Miss. 504. There must, however, be “an actual adverse possession,” “ by a person claiming to be owner; ” and the rules of law which determine the meaning of these words have not been altered by the statute. Before entering upon an investigation of the facts it will be well to glance, for a moment, at such of those rules as bear upon the present controversy.

To acquire a title by possession two things must concur, to wit, an occupation, actual or constructive, and a claim of ownership. Neither is effectual without the other. No continuance of occupation, no matter how long protracted, will avail unless accompanied by claim of title; and every presumption of law is that the occupant holds in subordination, and not adversely, to the true owner. Not only does the law presume that he who has entered without title has done so in recognition of, and subordination to, the title of the owner, but, having affixed this prima-facie presumption to his entry, it will not allow him to convert it into an adverse one except by acts which plainly demonstrate its hostile character. Where the entry is shown to have been permissive, its origin will give tone and character to all subsequent acts ; but where the nature of the entry is unknown, its character may be determined by the subsequent acts, the legal presumption always being in favor of a subordinate entry and holding.

It devolves, therefore, upon him who claims that his possession has been adverse to establish that fact to the satisfaction of the court or jury. This he may do in many ways. Where his occupation has been constructive only, it is usually necessary to show an entry under some documentary muniment or color of title, though it need not be perfect or valid. But where his occupation has been actual, open, and notorious, it may be shown to have been adverse by his acts, or even by his declarations, where these so connect themselves with his possession as to amount to verbal acts.

The acts and declarations do not, of themselves, constitute adverse possession, nor can they change a permissive into a hostile occupancy, but they are evidence of the character of the possession ; and if sufficiently decisive, and not shown to have been commenced or continued in recognition of the true title, they may afford sufficient proof to establish a title by limitation. Tyler on Eject. 864; Humbert v. Trinity Church, 24 Wend. 587; Smith v. Teller, 1 Johns. 180; Ford v. Wilson, 35 Miss. 505; La Frombois v. Smith, 8 Cow. 587.

What acts will suffice to evince an adverse holding must depend on the circumstances of each case. They must be such as indicate title rather than tenantry, ownership rather than dependence.

In old and well-settled countries the cutting of timber, the digging of turf, and the like have been held sufficient. Stanley v. White, 1 East, 332.

Everywhere it will be agreed that entering upon wild land, reducing it to cultivation, building fences, erecting houses, draining marshes, assessing it and paying taxes in the occupant’s own name, and continuously occupying it as a family residence for a long sei’ies of years, are potent circumstances, and, as between strangers, in the absence of other evidence, will usually be accepted as conclusive proofs of an adverse holding. Aug. on Dim., sec. 391, and note; Overfield v. Christie, 7 Serg. & R. 177; Lessee of Payne v. Skinner, 8 Ohio, 159; Bowman v. Grubbs, 26 Ind. 419; Kent v. Har-court, 33 Barb. 491; Ford v. Wilson, 35 Miss. 505.

Among relatives, and especially between those occupying parental aud filial, or gziasi-parental and filial, relations, those circumstances would not be deemed so convincing, because they may be consistent with a mere permissive enjoyment of a usufructuary possession. But if to acts like these, upon the part of the occupant, there be added evidence of a parol 'gift by the owner, coupled with subsequent acts on his part in recognition of ownership in the occupant, no reason can be perceived why these circumstances should not be held as satisfactory between relatives as between strangers.

No principle is better settled than that a parol gift of land may ripen, by actual possession, into a perfect title. An entry under such a gift, though permissive and friendly in the popular-sense, is hostile and adverse to the paper title in a legal sense — that is to say, it is an assertion of ownership in the occupant. Sumner v. Stephens, 6 Metc. 337; Syler v. Eckhart, 1 Binn. 378; School District v. Blakeslee, 13 Conn. 227; Moore v. Webb, 2 B. Mon. 282; Comins v. Comins, 21 Conn. 413; McGee v. McGee, 37 Miss. 138; La Frombois v. Jackson, 8 Cow. 589; McCall v. Neely, 3 Watts, 72; Ashley v. Ashley, 4 Gray, 197.

■ Undoubtedly, a parol gift of land, as affording the basis of a title made perfect by lapse of time, may be shown by parol. Undoubtedly, if the death of the donor, and the legally imposed silence of the donee, render it impossible, with absolute certainty, to demonstrate the gift by showing the exact time, place, and woi'ds at which and by which it ivas made,, we may resort to the acts of the parties, and to their declarations where adverse to their interest, or where so made as to become a part of the res gestee.

Let us appty these principles to the facts of the case, with a. Aiew of determining Avhether Jefferson Davis entered upon, and held, “ Brierlieid ” as owner, or as tenant at Avill of his brother, addressing ourselves first to a consideration of the facts up to-the time when the property fell into the hands of the United States government, and then to those thereafter transpiring.

Joseph E. and Jefferson Davis were brothers. The former was tiventy years the senior of the latter, and, in many respects,, stood in loco parentis to him. He Avas already a middle-aged man, of large wealth, a retired lawyer, living at “ Hurricane,”' when, in 1833, Jefferson, who had resigned a commission as lieutenant in the United States army, came to reside here. Jefferson was possessed of no visible property save one negro man, but he had an unsettled claim against his brother for his interest in the paternal estate, which had been appropriated by Joseph E. The amount of this claim is not known, but it was not large. “ Hurricane ” at that time consisted of 4,000 acres. In 1835-6 Jefferson took possession of that portion which, from that period, received and bore the name “ Brier-field.” It embraced 800 or 900 acres, and, from its first occupation by him, ivas segregated from “Hurricane” by boundaries distinctly marked and frequently pointed out by the two brothers to various persons. When Jefferson took possession, it was a wilderness and a jungle. He held it by the possessio pedis for twenty-seven years, and converted it into one of the most highly improved and productive plantations in the state.

- In favor of the theory that his occupation was in subordination to the paramount title of his-brother, the following facts are relied on:

1. No written evidence of title was ever delivered, though both the brothers were men of high intelligence, and must have known the necessity of such a writing.

2. The gwasi-parental and filial relations that existed between the brothers is eminently suggestive of a permissive enjoyment of the possession and usufruct only, and is consistent, it is said, with all the subsequent acts of the parties.

3. Joseph’s slaves assisted largely in the early clearing of ■the land and building of houses. He aided, also, with his money in the erection of the more costly residence that- was afterwards built; and this house, as originally planned, was intended to form a double tenement, so as to afford a home for a widowed sister of the two brothers. This scheme was abandoned during the erection of the house, and the sister never resided there.

4. Though Joseph usually spoke of “Brierfield” as the property of Jefferson, he told his friend Hon. John Perkins, in a private conversation in 1855, that he had never conveyed the title, and that he, and'not Jefferson, was the owner of the property. He expressed a repugnance to its ever falling into the hands of Mrs. Jefferson Davis, or any member of her family. The brothers were not friendly at this time, on account of a misunderstanding originating through Jefferson’s wife.

5. Mrs. White, a niece of the two brothers, testifies that, though the place was usually spoken of as Jefferson’s, it was well known in the family to be the property of Joseph.

In 1852 she heard the wife of Joseph, at a time when he was quite ill, urge him to make a deed to Jefferson, which he refused to do. Neither Jefferson nor any member of his family was present, and there existed at the time an entire, though temporary, alienation between the brothers.

This witness also testifies that in 1870, a short time before the death of Joseph E., she urged'Jefferson to apply to nim for a deed, which he declined to do, through motives of delicacy, as he said ; but after his brother’s death he expressed to her his regret that he had not acted on her advice.

6. In 1847 Joseph E. filed, under oath, a bill in the Chancery Court of Warren County, enjoining the collection of a levee tax which had been assessed against ‘ ‘ Hurricane ’ ’ and “ Brierfield,” in which he set forth the lands composing both as being his property. Jefferson was at the time in Mexico, though he returned before the conclusion of the suit. Joseph was acting, during his absence, as his general agent, and there was annexed to the bill an exhibit showing that the tax on “Brierfield” was assessed against Jefferson. The suit progressed after Jefferson’s return without interference or intervention by him.

These, we believe, comprise all the facts occurring previous to the seizure of “Brierfield” by the Federal authorities ■which tend to show continued ownership in Joseph. It is at once apparent that several of them, however pertinent to other questions in the case, are not admissible on an issue of title, since nothing is better settled than that title cannot be affected by the acts or declarations of a party not in possession, where uttered and done in his own interests, and not in the presence of the adverse party.

All testimony in relation to them was, on this ground, objected to in the lower court.

The facts which indicate that Jefferson held in his own right, and not as tenant of his brother, are as follows:

1. During his long occupation he had no other home. The land, when received, was wholly wild, subject to inundation, and differing in no respect from government lands, to be procured readily at $1.25 per acre. It constituted, as Joseph E. said, many years afterwards, “ a gift of but little value until improved by Jefferson.” He devoted the best years of his manhood, and expended twenty times the value of the land, in clearing, and fencing, and draining, and leveeing, and building upon it. He assessed and paid taxes on it as his own, and always so spoke of it, both to Joseph E. and to others. By a will prepared in 1846 he devised it. Indeed, no act of ownership higher than those habitually exercised by him can be conceived of, save a sale of it, and his right to do this seems to have been conceded by his brother, as will be hereafter seen.

• 2. Nineteen witnesses testify to the general repute, within and without the family, that he was owner, and to the fact that he was always so spoken of by Joseph E. and by the world at large. These witnesses embrace former slaves of both brothers, the overseers, commission merchants, and mutual friends of both, a daughter and son-in-law of Joseph E., a brother-in-law, and four nephews and nieces. Outside the family it was not known that no deed had been made. Within the family a knowledge of this fact does not seem to have affected the general understanding that Jefferson was owner. Mrs. Stamps (a niece by marriage of the two brothers)' expresses what seems to have been the general understanding in the family. After stating that Jefferson held as owner, and not as tenant, she sajs: “My answers are derived from my connection with the Davis family, among all of whom it was a matter of common repute, universally conceded, that Mr. Jefferson Davis was the owner of ‘ Brierfield,’ and I never heard that fact called in question or doubted by any one; so that I may sa}' the repute of such ownership was general, both in and out of the family. * * * It was understood and reputed among the family that Jefferson Davis was the real and actual owner of ‘ Brierfield,’ though the title was nominally in Joseph E. Davis.” The testimony of the other relatives, except Mrs. White, is substantially the same.

3. Joseph E. Davis habitually spoke of “Brierfield” as “Jefferson’s place,” both in ordinary conversation and upon occasions calling for accurate language. . During Jefferson’s frequent and protracted absences in the public service, Joseph sometimes acted as ageut for his brother, and at other times the agency was devolved upon others. While acting as agent, his letters, drafts, and orders relative to “Brierfield” were always signed “Jefferson Davis, by J. E. Davis.” Many such are in the record. He gave it in to the tax-assessor as Jefferson’s property, and paid taxes on it in Jefferson’s name. When other persons were acting as agents, he explicitly refused to interfere in any manner with the plantation. Soon after Jefferson’s marriage (which occurred in 1845), and while he was in Mexico, one of the daughters of Joseph E. twitted Mrs. Jefferson Davis with the taunt that her husband owned nothing, and was dependent on his brother. Stung by the remark, Mrs. Davis sought her brother-in-law and demanded to know, explicitly and distinctly, whether he or her husband was the owner of “Brierfield.” He assured her that Jefferson was owner, saying that he' had given it to him. He prepared the will, in 1846, by which Jefferson devised “Brierfield.” Many years after this will had been destroyed, Mrs. Jefferson Davis, who regarded it as unjust towards herself, taxed her brother-in-law with having instigated it. He resented the charge with warmth, declared that he had only put it in legal shape at his brother’s request, and said that it was most unjust that he should be held responsible for the disposition that Jefferson had seen fit to make of his own property. In 1852, during a temporary alienation between the brothers, Joseph E. made a written proposition to purchase “Brierfield” from Jefferson, which the latter, in writing, declined.

4. Besides the habitual declarations of Joseph to the effect-that he had given “ Brierfield ” to Jefferson, he so stated with great particularity to William Stamps, who had married a sister of the two brothers. When Jefferson left the army, in 1833, Stamps, who was a man of wealth, proposed to advance him $10,000 with ivhich to buy a plantation. Joseph E. objected, and broke off the negotiation, saying that “ he intended to do better by Jefferson than that.” Two years after-wards Jefferson took possession of “Brierfield.” A little later Stamps applied to purchase a portion of “Hurricane.” Joseph E. replied that, having given “Brierfield” to Jefferson, he had no land to spare. He said that he had given “Brierfield” in consideration that Jefferson would leave the army and settle near him, because he loved him as a son. This witness also establishes the fact that Joseph E. was, before the gift, indebted to Jefferson, but does not fix the amount.

It seems impossible to resist the conclusion, from this testimony, that Jefferson Davis held “Brierfield” in his own right, and acquired a perfect title by limitation. Not so to conclude would seem equivalent to declaring that no possession could give title without a writing.

Stress is laid by appellees upon the fact that Joseph E. Davis assisted to build the residence, and that it was designed to give shelter to a widowed sister. It is- proven that this arrangement was proposed because of the fact that Jefferson had, at the time, no children, and was much away from home. The plan did not originate with Joseph E., nor was he consulted when it was abandoned at the mutual instance of the sister and of Mrs. Jefferson Davis. It is said that Jefferson .should have intervened in the suit for the injunction of taxes assessed against “Brierfield,” and should have asserted his own title. It is impossible to see what principle sanctions such an idea. The suit did not involve title, and could be as well prosecuted by his brother as by himself. That his brother • chose to state the title as shown by the records, rather than as it really existed between the brothers, could not possibly affect Jefferson’s rights.

It is urged, with much more force, that it is incredible that men so intelligent should have undertaken to convey title to land by parol. The suggestion loses, perhaps, some of its strength from a consideration of the fact that, though Joseph E. Davis had entered the land as early as 1812, he himself obtained no patent for it until after the close of the Civil War, in 1865. This shows, at least, great carelessness and indifference about paper evidences of title. But, apart from this, the books abound with cases of parol gifts of land ripened into perfect titles by occupation, in all of which written conveyances had, by negligence or otherwise, failed to be delivered; and we have seen no case that strikes us as more satisfactory upon the facts than this.

If Jefferson Davis had remained poor and dependent upon his brother, we could perhaps understand a willingness upon his part to remain a pensioner upon that brother’s bounty or caprice. But the record shows that he rose as rapidly in fortune as in fame. While successively a colonel in the Mexican War, member of Congress, United States senator, and secretary of war, and filling all of these high places with distinguished ability, his increase in wealth was not less marked. In 1860 there were largely more than a hundred slaves on “Brierfield,” which, with other personal property there, must have been worth $100,000. The annual cotton crop was from 400 to 450 bales, worth more, than $20,000 per annum. Many years before this he had been able, at one time, to allow his brother the use of $10,000 of surplus cash lying in the hands of his commission merchant. The residence at “ Brierfield ” was expensive, and fitted up with marble mantels — a thing unusual in country houses in this state. The grounds were adorned with shrubs and trees imported from foreign lands. That such a man should have created and lived in such a home for more than a quarter of a century without claim of’right, and wholly at the mercy of a brother with whom, despite a mutual affection unusually devoted and tender, there were not wanting more than one period of coldness and estrangement, seems to us far more remarkable than the carelessness which omitted to have the parol gift evidenced by a deed.

We pass to a consideration of the facts occurring after the seizure of “ Brierfield ” by the Federal government. In 1863 both ‘ ‘ Brierfield ’ ’ and ‘ ‘ Hurricane ’ ’ were taken possession of by the oificers of the Freedman’s Bureau, Jefferson Davis being at the time in Virginia, as president of the Confederate States, and Josejih E. a refugee in Alabama, Both plantations remained in the occupation of the Bureau during the war.

On October 20, 1865, Jefferson Davis — then confined, on a charge of treason, in Fortress Monroe — wrote a letter to his wife strongly advising against the return of Joseph E. {who was still in Alabama) to “ the river place.”- He says : “Allis changed. He [Joseph] will be troubled beyond his strength by the confusion which must exist. An agent will suit the new regime much better than the old one. If he goes back, why not take the Brierfield house? He can claim possession as the owner of the land. But my decided opinion is that, in the existing condition of things, neither he nor Lize [his granddaughter] should stay there.”

Why Jefferson suggested that Joseph E. should' occupy “Brierfield” rather than “Hurricane” does not appear. Whether he meant by Joseph “ claiming possession of Brier-field’ as owner of the land,” that he was entitled to possession as owner against himself, or only that he conld assert the claim in order to obtain possession from the Federal government, is left to conjecture. It is shown that this, like all his other letters while in prison, was subject to the inspection and-strictest scrutiny of his captors. Mrs. Davis forwarded a copy of the letter to Joseph E. No action was at the time taken by him in relation to the suggestion contained in it, for the reason that he was then uzzpardoned for his owzi participation in the Rebellion. Not until September 8, 1866, did he receive his pardon, and on the same day he made application, in writing, for the restoration to himself, as owner, of all the lands embraced both in “ Hurricane ” and “Brierfield.” The application was carried to Washington and laid before President Johnson by appellee Bowmar, as the agent of Joseph E. Davis. While the application was being prepared, Dr. Bow-mar said to Joseph E. Davis,How about ‘Brierfield?’” Bowmar thus details what followed : “ He simply answered, ‘ The title is in me.’ I had told him that it would be necessary to show title. He said that the title was in him ; that he had never conveyed it. I said nothing more about it. I supposed that all that he wanted was to get possession of the land. * * * There was reason to conceal from the Federáis any right that Jefferson Davis had to the land. Mr. Davis was in prison, and it was generally believed that his property would be confiscated, if nothing worse happened. * * * My impression was that he [Joseph E. Davis] wanted to protect his brother from loss.” Being asked if he meant loss by confiscation, the witness answered, “Yes.’,’

We[thmk that Dr. Bowmar’s- theory was the true one, and that Joseph E. Davis simply took advantage of the outstanding record-title in himself to recover the land for his brother. It is insisted, with (an earnestness that excites surprise, that such a suggestion is dishonorable to the parties concerned, and is inconsistent with the lofty integrity that the record establishes for Joseph E. Davis, and which history attests for Jefferson. We have no right to assume that Dr. Bow-mar’s seuse of honor ivas less acute than that of his friend and testator. He was the active agent in carrying out the scheme, and he tells us quite distinctly what he supposed its object was. The truth, doubtless, is that in the eyes of Joseph E. Davis and Dr. Bowmar, as in those of millions óf their countrymen, Jefferson Davis’ person and property were alike held in custody for the commission of deeds which lacked nothing save success to crown his name ivitli immortality ; and, if so, they probably thought it no more dishonorable to save his property than it would have been to rescue his person.

Eictitious claims and conveyances of property among the adherents of unsuccessful rebellions, in order to save it from confiscation,.have marked the history of all ages and countries. We are not aware that the sternest historians or the most austere moralists have ever regarded them as indicative of personal dishonor.

Joseph E. Davis obtained possession of “Hurricane” and “Brierfield” in July, 1867 ; but in June preceding he had consulted Mrs. Jefferson Davis about selling “Brierfield” to Montgomery and sons, giving as a reason that her husband would never be released from prison, and that, she could not occupy it, in the changed relations of things, s without him. She opposed the sale, but said that the Federal authorities had promised to allow her to visit her husband in a short time, and that she would consult him on the subject. It appears by subsequent developments that she did consult him, and received his assent to the sale. In November following, the sale of the two' places jointly was made, the' bond and notes in controversy were taken, payable to Joseph E. Davis, who executed a deed in his own name to both, places, and received a mortgage back to protect the payments. • Either at the time of the sale, or sometime afterwards (Montgomery makes two statements as to the time), Joseph E. Davis stipulated with the vendees that if Jefferson should ever be released, and should desire to reoccupy “ Brierfield,” the sale as to it should be rescinded.

Mrs. Mary Stamps, who had married a nephew of the two brothers, obtained permission, a few weeks after the sale, to visit her imprisoned uncle. Joseph E. Davis met her in the eity of Jackson; he chai’ged her (in her own language) “to tell Jefferson that, as the duration of his then imprisonment was uncertain, he had acted, for him, in the sale of ‘ Brier-held,’ for what he considered his best interest; that the sale was made subject to his [Jefferson’s] approval; and he expressed an earnest desire that his brother should communicate with him on the subject.”

Mrs. Stamps delivered. the message to Jefferson Davis, and brought out and handed to Joseph E. an unsigned written memorandum from Jefferson. In this, after alluding to the fact that all correspondence was prohibited, he states that he had already sent word, by his wife, “that any arrangement which you [he] made with Ben [Montgomery] Avould be agreeable to me ’ ’ [him]. He alludes to the malignity of his • enemies, and suggests that the sale “be closed soon, and tightly.” He expresses the opinion that Montgomery will never be able to pay, and that the land will revert. “ Then,” says he, “ it may be that a better state of affairs will render the • property valuable to your heirs.”'

It is insisted that the Avords “ valuable to your heirs ” shoAV a disclaimer of any interest in himself. The circumstances under which they Avere written seem to suggest a sufficient reply.

. Extracts from txvo letters written by Jefferson after his release are contained in the record, in both of which he reiterates the belief that Montgomery will never complete his payments. In one of them he suggests that, in this event, “ some-man of capital could be found to take the lands and secure to-you [Joseph] a revenue free from vexatious attention on your [his] part.” This sentence is immediately preceded by one which says, “I have thought of it [the high price of cotton} as bearing on your prospects at the ‘Hurricane.’ ” No special-reference is made to “ Brierfield.” The other letter, written in 1868, seems to have been in response to one communicating-the fact that Montgomery desired to abandon his entire contract, a proposition which Jefferson styles “ preposterous, after having enjoyed so long all of its advantages without having-met its obligations.” In this letter occurs this expression: “ It is also within his [Montgomery’s] ability to see that he had better retire with the means he has acquired by the possession of your property, and engage in small trade.”

It is insisted that the expression “your property” shows-that the writer claimed nothing for himself. We cannot see that he was called upon to assert a claim which had been so-uniformly recognized by his brother. The letter seems to be a reply to one which communicated Montgomery’s wish, to-abandon the contract, and this would imply that he was regularly advised and consulted in relation to the matter. The bill distinctly charges, and the answer admits in implied, if not express, terms, that year by year, as long as Joseph E. Davis lived, Jefferson’s proportion of the annual payments-made by Montgomery was regularly remitted by his brother. In the face of facts like this we cannot regard this isolated expression in the letter as important. Indeed, the letters show,, as does every other fact proven, that from the time when Montgomery first proposed to purchase, in June, 1866, up to Joseph’s death, in 1870, no step was taken, no proposition, submitted, in reference to ‘ ‘ Brierfield ’ ’ which was not promptly communicated to Jefferson. It is impossible to see how his rights could have been more clearly recognized.

Our opinion is that Jefferson Davis held “Brierfield” as •owner, and that there is no competent legal evidence in the record showing that Joseph E. ever questioned or impugned his title as such up to 1865. From that time until his death, to the world at large, he asserted the outstanding record-title that was in him ; but to his brother Jefferson, by seeking his ■consent to the sale in advance, by promptly communicating information of it when made and asking his approval, and by regularly remitting his proportion of the annual payments received, he continued to recognize his brother’s rights , up to the making of his will, in 1869. This brings us to the question of estoppel.

Has Jefferson Davis’ conduct been such as to estop him from a prosecution of this suit?

Joseph E. Davis died in the summer of 1870, Jefferson Davis being at the time a resident of Tennessee. In his last will and testament, executed the year previous, he makes no allusion to any right of Jefferson in the Montgomery notes, but bequeaths something less thán a fourth of them to Jefferson’s children, and the balance, as we assume, to his own grandchildren, Mrs. Hamer and J. D. Mitchell.

There was much other property, real and personal, devised to various other persons. Of this will, Jefferson Davis, J. H. D. Bowmar, and Joseph D. Smith were appointed executors.

When Jefferson Davis was made aware of the terms of his brother’s will, he expressed to his co-executor Bowmar his dissatisfaction, and, upon something being said about the generous bequest to his own children, remarked that it was a generosity at his expense. From that time to the bringing of this suit he gave no further token of dissatisfaction, and during the three years and a half that intervened his conduct ■was in every respect antagonistic to his present position. He qualified and gave bond as executor; he united in an inventory in which the Montgomery notes were returned as assets of the estate; he took part in spreading upon a journal kept by the executors a memorandum recognizing those notes as-the property of the legatees ; and he assisted in taking from Montgomery a further mortgage to secure them. In every way possible he recognized that the testator had disposed of them without regard to any claim of right on his part. Is he-thereby estopped from asserting such claim ? Estoppel is a-preclusion to show the truth. It is of the essence of the doctrine that the conduct relied on as an estoppel should have-induced some action, on the .part of the person pleading it, which will be injurious to him if the party guilty of the conduct is permitted to show the truth. As expressed in Patterson v. Lytle, 11 Pa. St. 53, “ The principle runs through the-whole doctrine of estoppel that a man is only prevented from alleging the truth when his assertion of a falsehood, or his-silence, has been the inducement to action, by the other party, which would result in loss if the opponent was permitted to-gainsay what he had before asserted, or by his acts induced the others to believe.”

As expressed by Cooley, J., in Meister v. Birney, 24 Mich. 435, “There can be no estoppel unless the plaintiff was induced to take some action in reliance upon the statement, which he was not legally bound to take, which otherwise he would not have taken, and which will result to his detriment if the statement upon which he relied is allowed to be disproved.”

The same doctrine has been quite as strongly announced by us in two recent cases, where the facts seemed earnestly to-call for the application of an estoppel, but in both of which, we refused to apply it because it was not shown that the other party had been entrapped into any affirmative action, Staten v. Bryant, ante, 261.

Save a circumstance to be presently noticed, there is no pretense that the legatees of Joseph E. Davis have been induced to take any action whatever, in-reliance upon Jefferson Davis’ admissions that they were the exclusive owners of the fund in controversy. No such action on their part has been suggested in argument, except that one of the female legatees lias contracted a marriage which perhaps she would not have contracted but for an impression that she was wealthier than she will be if this bill is maintained. This is the mere suggestion of couusel, without allegation or proof on the subject in the record. We cannot accept it as the kind of action contemplated by the authorities.

One act of Jefferson Davis requires closer scrutiny. He held a probated claim against his brother’s estate for $10,000, with accumulations of interest which would have more than doubled it. It ivas resisted, as being barred by the statute of' limitations. On December 21, 1872, the residuary legatees, by a written contract with him, agreed to pay the principal, without interest. It was agreed that it should be paid out of the residuum of the estate, and the Montgomery notes were specialty alluded to as constituting a portion of that residuum, out of which the payment was to be made. It was agreed, however, that, as to the notes, payment should come wholly out of the residuary portion of them, and should not diminish the special legacies charged on them by the will; in other-words, the residuary, and not the special, legatees should pay it. It was further agreed that it should be subordinate, so far as money arising from the Montgomery notes was concerned, to all taxes and expenses of • administration. In short, the residuary legatees agreed to pay the face of the claim out of' their residuary portion of the estate, but declined to bind the specific legacies coming to them. Jefferson Davis agreed, upon his part, to accept the face of his claim ; to look alone for payment to the residuum of the estate, without interfering with special legacies, and, even as to the residuum, to postpone his debt to taxes and costs of administration. To borrow a librase from another branch of the law, it was a “ demonstrative ” contract, which fixed its own terms and pointed out the source and manner of payment. One of the sources pointed to was the Montgomery notes. It is shown that Jefferson Davis has never received anything on this debt, either before or since the making of this contract. Does the making of the contract estop him now from claiming that, in point of fact, a portion of the Montgomery notes belong to him? Misled by the arguments of counsel, we treated this contract, in our former opinion, as limiting the payment of the debt to the residuum of the Montgomery notes, the whole of said notes, it being borne in mind, not being specifically devised. We consequently held that the contract constituted no estoppel, because it is only the residuum of those notes that Jefferson Davis claims, and he could not be estopped from claiming a fund by an agreement to receive payment of a debt due himself out of a fund belonging to himself. Attention is now, called to the fact that, by the terms of the contract, he may look for payment to the entire residuum of the estate, which embraces other property besides that portion of the Montgomery notes not specifically devised. How far does this operate to estop him from claiming ownership in those notes? It is manifest that, in any litigation touching the agreement itself, all of its stipulations are binding on the parties ; so that in all controversies arising upon it Jefferson Davis would be compelled to treat the Montgomery notes as the property of the legatees. If, for instance, he should succeed in this proceeding, and thereby obtain a portion of the notes as his own, he would, nevertheless, in any future suit brought to compel payment of his $10,000 debt, be compelled to credit said debt with the recovery obtained here, and, if sufficient, the oné would extinguish the other. Having agreed to receive payment of his debt out of that fund, he must treat any'money coming to him from that source as a payment. But he now ■ claims an ownership in the notes by a wholly different title. Whether the contract will debar him from prosecuting this claim depends upon whether the recognition contained in it, that the notes belonged to the legatees, formed a part of the consideration, or was a mere admission and recital of a fact the truth of which was taken for granted, and about which there was, at the time, no controversy. A mere statement or admission in one contract, not forming a part of the consideration of it, will not be binding in another matter with which it has no connection.

If, for instance, in a negotiation with my neighbor about the location of a house or a fence, I recognize and treat the land upon which he is then living as his property, this will not debar me from suing for the same land upon a claim then existing in my favor, unless the recognition by me that the land is his formed the inducement with him to enter into the contract. This identical case is presented in Carpenter v. Buhler, 8 Mee. & W. 209, where, in a contract about building a shaft leading , to a mine, the land through which it ivas to run was treated as, and recited to be, the property of one of the contracting parties ; but yet it was held that this did not estop the other party from subsequently recovering the land by an older title. The reason was that the recital as to ownership of the land was no part of the inducement to, or consideration of, the contract. Such recitals are said to be always admissible in evidence, as showing an admission by the party making them ; but they are not estoppels. So, the taking by a creditor of a mortgage, to protect a disputed debt, upon land in the possession of his debtor, though it would be an admission of title in the debtor, would not estop the creditor from recovering the land as his own by a prior and better title. The principle is that no mere recital or assumption of a fact in one matter can operate as an estoppel in another. It is receivable in evidence as an admission, but not as an estoppel. Herman on Estop., secs. 246, 324; Southeastern Ry. Co. v. Warton, 6 H. & N. 520; Reed v. McCourt, 41 N. Y. 439; Lanison v. Tremeve, 1 Ad. & E. 792.

If, then, the recognition in the contract of 1872, that the Montgomery notes belonged wholly to the legatees, can be regarded as forming any portion of the inducement to the legatees for undertaking to pay to Mr. Davis his probated claim, this would forever estop him from claiming any ownership in those notes. If the record left this point doubtful, we would feel bound to give the legatees the benefit of the doubt, and to hold-him estopped. But it is unmistakably shown that the contract of 1872 had no connection whatever with the ownership of those notes. The legatees, in setting up the contract in their answer as an estoppel, say, under oath, “ that they had, at the time it was made, no notice or suspicion that Jefferson Davis had, or claimed to have, any interest in ‘ Brier-field’ or its proceeds.” It is quite ihanifest that, at the time this contract was made, Jefferson Davis had no intention of bringing this suit. It is impossible, therefore, that the ownership of the Montgomery notes could have entered into the mind of either party, or that the designation of them as one of the sources from which Mr. Davis was to receive payment of his debt could have formed any part of the consideration of the contract. Indeed, the paper shows upon its face that the notes were merely pointed out as forming a portion of the estate, and certain limitations were thrown around Mr. Davis’ right to subject them to his demand. Thus, it was stipulated that his' debt should not diminish that portion of the notes-devised specifically by name to the residuary legatees, but only to that portion coming to them under the residuary clauses, of the will. It was, therefore, a mere statement or recital,, and not a part of the consideration of the contract. It must be respected in all controversies arising upon the contract itself, but is not binding in other matters unconnected with it. It is an admission by Jefferson Davis of title in the legatees, and, therefore, receivable in evidence against him. It is not an estoppel.

The record plainly shows that, after Jefferson Davis’ first, expression of dissatisfaction on learning the contents of his brother’s will, he resolved to subniit in silence to what he considered the injustice done him, and that he remained of this mind until the bringing of this suit. If we could see that his long acquiescence had harmed anybody, or induced any party in interest to take any steps which it would be prejudicial to retrace, we would assuredly estop a further prosecution of this litigation. A careful and anxious scanning of the record fails to disclose any such steps taken. We can neither inquire into the motives which induced his long silence nor into those which prompted him at last to sue. It is sufficient for us that no statute of limitation bars his claim, and no one, by his silence or admissions, has been led to take anj^ action which renders it inequitable for him now to assert his rights.

The only remaining question is whether Jefferson Davis’ position'as executor precludes the maintenance of.this suit.

Upon this question we are content with the exposition of the law in our former opinion. That our views may not be misunderstood, we desire to say that we 'would maintain with the utmost strictness the rule which deprives a trustee of any advantage gained by his fiduciary position, and which forbids him from laying claim to any portion of the trust property which has come into Ms possession. He can acquire no subsequent interest after entering on the trust. If he takes and', holds possession of the property, this is, of itself, a renunciation of any previous interest. But we do not understand that qualification alone, or any subsequent act, without possession taken, defeats a prior independent right in the trustee. It might do so where the adverse right extended to the whole subject-matter of the trust, because then nothing would remain for the trust to operate on. But where, as in this case, it is a vast estate, and the claim is of a fractional interest in one chose in action alone, which has never come into the actual possession of the executor, the whole spirit and reason of the rule ceases ; and to enforce its letter (if, indeed, there be such letter) would operate an injustice more intolerable than that which it was designed to prevent. In such case the executor could not maintain an action at law any more than he could bring suit at law upon a debt due to himself from the estate. But as he does not lose his debt by qualification, neither should he lose his partial interest in the chose in action. If Joseph E. Davis had collected the whole of the Montgomery notes, and died without having paid to Jefferson the amount representing “Brierfield,” certainly Jefferson’s qualification as execiitor would not have precluded him from probating a claim for money had and received. The money remaining uncollected and still represented by the notes, what course must he take? His remedy is to ask the Chancery Court, which has jurisdiction and cognizance of the subject-matter, to pass upon his claim. This is the very point decided in Saunders’ Heirs v. Saunders’ Executors, 2 Litt. 315, and tacitly assumed in McWillie v. Van Vaeter and Wife, 35 Miss. 428.

We are well aware that numerous dicta in text-books and reported cases seem to inculcate a harsher doctrine, but neither our own researches nor the exhaustive labors of counsel have ■ produced a case where a result in accordance with those dicta has been practically reached. In all the cases examined, and their number is very great, there has been the element of after-acquired right, or of possession taken. In the case at bar, Jefferson Davis’ right long antedates the execution of his testator’s will. It is affirmatively shown that the notes and bonds in which he claims an interest have never been in his possession, except in that technical sense which the law imputes to him as executor. He has, therefore, impleaded his co-executors and the legatees in the court in which the estate is being administered, and there propounded his claim. Having established it, as we think, by undoubted proof, no sound principle demands a denial of relief.

If JosephE. Davis, by his will, made, in fact, no disposition of so much of the Montgomery notes as represented the value of “Brierfield,” and asserted no claim of ownership to that much of them, then, of course, Jefferson’s right of recovery is indisputable. Speaking for myself only, I must say that I regard it as quite doubtful whether he did so. He specifically devised $230,000 of the $300,000 due, making careful provision how each legatee’s share should diminish if less than $230,000 should be collected. He makes no disposition whatever of the remaining $70,000. The estimated value of “Brierfield” at the time of the sale was about $70,000. It is this omitted $70,000 that Jefferson claims. It is said that it passed, and was intended to pass, by the residuary clause of the will, by which “all the rest and residue of the estate ” was devised to Mr. Mitchell and Mrs. Hamer. This, it seems to me, is assuming the very point at issue, namely, did the testator regard it as a part of his estate ? He had regularly remitted the interest, on it, up to Ms death, to his brother. In parceling out the bulk of the sum due on the notes among his legatees, he carefully refrained from trenching on this amount. Under these circumstances it seems scarcely fair to assume that he intended to embrace it in the words “ rest and residue of my estate.”

Jefferson Davis, however, thought that he did, and uniformly acted on that construction. We have, therefore, felt bound so to regard and treat it.

The decree of reversal heretofore entered in this court will stand.

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Dissenting Opinion

Simrall, C. J.,

dissenting.

When the opinions of the majority of the court were read, I announced that my impressions were adverse to the conclusions of my associates, and that, so soon as my health would admit, I would carefully consider the case and put in writing my views. That duty I have performed.

For convenience of the investigation, the subjects involved may be divided into these propositions :

1. Was Jefferson Davis the owner of the Brierfield plantation ?

2. Did Joseph E. Davis, in the sale of it to the Montgomerys, act on behalf of, and as agent of, Jefferson (as averred in the bill), or did he dispose of it in his own right ?

3. Has Jefferson Davis, by his acts and conduct, waived whatever right he may have had to the property or its proceeds ?

Since I do not concur with the majority of the court as to the legal value of the facts in evidence bearing on these several propositions, or in the principles of law applied to them, I will state my separate views.

1. In 1835 Joseph E. Davis was the absolute owner of a large body of land in Warren County, of which what is known as “ Brierfield ” constituted a part. In that year, or the year following, Jefferson Davis, without visible means (except one slave derived from his father), with the permission of his brother, went into possession of part of the land, and, with his brother’s assistance, gradually subdued the forests to cultivated fields, established a plantation, and stocked it with labor.

Joseph E. Davis purposely retained in himself the legal title, and never did convey it to his brother, but on one occasion resisted the earnest importunities and entreaties of his wife so to do. I say purposely “retained,” because Joseph E. Davis was a lawyer of experience, systematic in business; besides, he was endowed with rare mental force, assiduously cultivated, so that he became a marked character for intelligence, sound judgment, and energy of will.

Under a possession thus begun, Jefferson Davis enjoyed the property and its fruits until it became unproductive, during the late war. In the inception of it did Joseph E. intend more than to permit Jefferson (towards whom “ he felt in the relation of a father”) to have the usufruct, reserving the title and ultimate disposition to himself? or did he mean that Jefferson should hold as absolute owner? The answers to these questions must be furnished by the subsequent acts and conduct of the parties.

To the public, Jefferson appeared to- be the owner of ‘ ‘ Brierfield; ” he was in the occupancy, planted and gathered crops, and controlled the revenues. Joseph E., as remarked, was a lawyer of more than usual attainments, and did not convey to his brother, from design, as we might suppose, if there were no testimony to the point. It is shown in evidence that he assisted his collateral relatives by giving them the use of land, but that he uniformly withheld the deeds. The testimony strongly conduces to show that he paid.in part for the dwelling-house erected on “Brierfield,” by a conveyance of a tract of land in Madison Parish, Louisiana. One of the mechanics so states, and a deed was put-in-evidence in corroboration. It is in proof that the mansion-house was intended in part for the residence of Mrs. Bradford, a widowed sister of Joseph E., and was so constructed as to afford separate apartments and culinary accommodations for the two families.

About the time this dwelling-hous'e was being built, Joseph E. Davis exhibited a sworn bill in chancery, predicated on his-ownership of “ Hurricane” and “Brierfield.” Several years afterwards an amended bill — in 1851 or 1852 — was filed under oath, with the same assertion of right. It is barely possible that Jefferson Davis may not have been aware of these judicial proceedings.

In 1865 Joseph E. Davis preferred a claim to the United States authorities for restoration of the possession of “Hurricane” and “Brierfield,” on the distinct allegation that he was the owner of both. To Dr. Bowmar, who, in common with the public, supposed that Jefferson owned “Brierfield,” and who had been deputed as agent to urge his suit at Washington, he stated “that the legal title was in himself.” And in aid of his application he filed with it the certificate of the clerk, or register of deeds, that no conveyance of “ Brier-field ” or “ Hurricane ” to any person was on record.

In the same year (1865), whilst temporarily resident in Alabama, he prepared and formally executed a last will and. testament, in which he devised “Brierfield” to the children, of his brother Jefferson.

In the following year (1866) he sold and conveyed “ Brier- . field ” and “ Hurricane ” to the Montgomerys.

A little more than two years afterwards (March 18, 1869) he made another last will and testament (which was probated), by which he specifically disposed of the bond and interest. notes, or the larger part, given by the Montgomerys for these plantations.

One of two interpretations must be put on these solemn and formal acts of Joseph E. : either that he verily believed that the title, with the jus disponendi, was in himself, or that he willfully and deliberately asserted rights to property which he Bad given to his brother, and to which he had no real claim.

The theory of the bill is disclosed in the second paragraph, where it is alleged that Joseph E., “ in making the sale, acted in his own behalf in respect of his own plantation, known' as * Hurricane,’ and in behalf of complainant in respect of ‘ Brierfield.’’ ” “At the same time, Benj. T. Montgomery was well aware that complainant was owner Of ‘ Brierfield; ’ and the sale of ‘ Brierfield ’ was upon the express condition that the same should be subject to complainant’s election to ratify ■or annul,” etc. The averment, in substance, is that Joseph E. sold “ Brierfield,” as agent, conditionally on the ratification and approval of Jefferson.

The only rational explanation of the acts and conduct of Joseph E. Davis is that he honestly believed that the legal title was in himself, and that he could transfer it by sale.

, Is the theory of the bill sustained by the subsequent conduct of the parties ? The sale was consummated on November 19, 1866. Two years and four months afterwards Joseph E. made his last will and testament, in which he, with particularity, refers to the sale, the bond, interest notes, and mortgage taken for the purchase-money, and bequeaths the entire amount as part of his estate. There is not a word or expression in the will which gives the slightest countenance to the idea that the testator did not esteem this fund as completely ■a part of his estate as any property which he disposed of.

This last solemn assertion of right, occuring within a year ■of his death, is the highest possible affirmation that he sold both plantations in his own right, and disposed of the pro-needs as his own, and negatives the averment of the bill that he had “ acted ” in the sale, as respects “ Brier field,” on be-, half of his brother.

It is natural to expect that a man of the probity and intelligence of the testator, if he held the bond, interest notes, and mortgage in part as agent and trustee of his brother, should have so declared in his will. Not being alluded to there, it is difficult to understand, if such was the reality, that no. paper, letter, or document has been found explanatory of it.

But did Jefferson Davis regard the sale, of “ Brierfield ” as made on his “behalf?” In reply to a communication.from Joseph E., advising him of what he had done, he wrote to him, from Fortress Monroe, on December 17, 1866', about a month after the sale, to this effect: “ It will, no doubt’, occur to you that, the proceeding [the sale] having been made public, it will be advisable to close it soon, and tightly. * ’ * The active malignity towards you, as my brother, might prompt to some congressional movement to interfere with it.” After expressing doubt of the ability of the negroes to carry out the purchase, he adds: “ Then it may be that a better .state of affairs will render the property valuable to your heirs. I have no doubt that Mrs. Stamps narrates the message with which she was charged by Joseph E. Davis to his brother, and the interview with Jefferson, according to her best recollection. This occurred about ten years before her deposition was taken. Jefferson made a written memorandum, from which I have quoted, and which bears on its face internal evidence of being an unreserved answer to his brother’s message.

After release from imprisonment he had personal intercourse with Joseph E., and yet we have no information that he ob-: jected to the sale, or claimed any part of the proceeds. In a letter under date of December 26, 1868, speaking-in reference to the application of Benjamin Montgomery, to rescind, after expressing the opinion that he must ultimately fail, he says : “ It is also within his [Benjamin Montgomery’s] ability to see that he had better retire with the means he has acquired by possession of your property, and engage in small trade.”

Again, under date of April 5, 1869, London, he writes: “If Montgomery- and sons can not, or will not, comply with the contract, could not some oue with capital be found to take the lands and secure to you a revenue, free from any vexatious attention on your part? ”

This correspondence refers to the lands as “ your lands,” and the income as “ your revenue,” and does not, in the remotest degree, hint at a right, or ownership, in the writer.

In 1870, in a conversation with his niece, Mrs. White, in New Orleans, she urged him to apply to Joseph E. for a deed to “Brierfield.” He declined to do so, out of motives of delicacy. After his brother’s death he wrote to Mrs! White, regretting that he had not taken her advice. If Joseph E. had sold “Brierfield ” for “his behalf,” and held the bond for the price as his trustee, the natural response to Mrs. White would have been, “ My brother has sold .the property for me, and will pay over the priceand there could have been no ground of regret that he did not follow her advice.

There is testimony in the record of conversations, especially with Joseph E. Davis, to the effect that he regarded Jefferson Davis as the owner of “Brierfield.” But the principle is common to all systems of jurisprudence to give a decided preference to written memorials over verbal • representations founded on the imperfect recollection of witnesses. Writings are higher in the scale of evidence, and ought not-to be controlled by the weaker. Herman on Estop., sec. 210. •

The defense of the statute of limitations was most relied upon, at the oral argument, to perfect the complainant’s right-to “Brierfield.”

That a just appreciation of possession, as working the effect of defeating the title, may be had, I stop for a moment to consider the authorities. Alexander v. Polk, 39 Miss. 755: “ The possession which is relied on to defeat a conveyance (the paper title) by the real owner must be adverse — that is, it must be openly and notoriously in defiance of the actual title— and to effect which nothing short of ouster or disseizin will serve;” citing Zellers v. Eckert, 4 How. 289. “Adverse possession implies that it commenced in wrong and is maintained against right. The party relying upon possession must prove it to be adverse to the title set up citing Jackson v. Sharp, 9 Johns. 163. Such possession, if open and notorious, under claim and color of right, by lapse of time may ripen into a good legal title. Huntington v. Allen, 44 Miss.; Gladney v. Barton, 51 Miss. 219, 220. In Dixon v. Cook, 47 Miss. 226, it is said that two facts must exist: first, “ there must be an entry under color of light, claiming title hostile to the true owner; second, continuous occupancy for the .statutory period.” In Magee v. Magee, 37 Miss. 152, the court says that the clearest and most comprehensive definition •of “ disseizin and adverse holding” is by Mr. Angelí, in his work on Limitations, page 410, section'll: “ It is an actual * * * appropriation of land, commenced and continued under claim of right, either under an openly-avowed claim, or under a constructive claim arising from the acts and circumstances attending the appropriation, to hold the land against him who was seized.” It is further said “ that the principle on which the statute of limitations rests is, not that the party has setup an adverse claim .for the period prescribed, but that .such an adverse claim is accompanied by such invasion of the rights of the opposite party as to give him a cause of action, which, having failed to prosecute within the time limited by law, he is supposed to have extinguished or surrendered;” •citing Abell v. Harris, 11 Gill & J. 371. “ The intention of the possessor must be considered in determining its character.”

Where the entry is without claim or color of title, the law adjudges the possession as subordinate to the legal owner, and no length of possession will render such holding adverse. But if there be an entry without claim of title, and no privity exists between the enterer and real owner, and a subsequent acquisition of title which the enterer believes good, from that moment his possession becomes adverse. Jackson v. Thomas, 16 Johns. 293; Jackson v. Johnson, 5 Cow. 74; Howard v. Howard, 17 Barb. 666.

I am constrained to these conclusions :

1. That Joseph E. Davis intentionally and purposely retained the title to “ Brierfield,” and that the several acts done by him (referred to) were positive affirmations of his right over the title and the jus disponendi.

2. That the allegations of the complainant that Joseph E. sold “ Brierfield ” on “ his behalf,” and held the fund therefrom arising as trustee, are not sustained by the evidence, but are inconsistent with the acts and assertions of ■ both parties since the sale.

3. In view of the testimony it is a matter of most grave and serious doubt whether the permissive entry of Jefferson at any time assumed an adversary form, and whether he could recover “ Brierfield,” or its price, if he had done none of the acts and things — presently to be considered' — which were pleaded in bar and preclusion of his claim.

4. It is quite certain that Joseph E. believed that he had the title, with the right to sell and convey, and the further right to dispose of the proceeds by last will and testament.

5. Jefferson Davis knew of these assumptions of ownership by his brother, and may have thought that his brother was mistaken. In such circumstances it was plainly his duty promptly to have made up his mind to abide by the will and execute its trusts, or to have stood aloof, avowed his adversary claims, and have asserted them; for every fact necessary or important to be considered in making the election was as well known to him when the will ivas propounded for probate as when he filed his bill.

Has Jefferson Davis acquiesced in the sale of “ Brierfield,” and the disposition made by the testator of its proceeds? or have his acts and conduct precluded him from asserting the claim set up in the bill ?

1. Joseph E. Davis lived four j^ears after the sale. - Jefferson was made aware of it within a month after its date. He had personal intercourse and correspondence with his brother in .relation to the property and sale, yet at no time in these years ■did he claim “ Brierfield,” or its price. We know that it was "the subject of correspondence, and must believe that it was a topic of conversation.

After the sale — how long after we are not informed — it was verbally agreed between Joseph E. Davis and Benjamin Montgomery that, if Jefferson Davis should desire to take up his residence there, the contract must be rescinded — not that Montgomery should convey to Jefferson. But the intention was to make such arrangements as would be agreeable and •deemed necessary by Joseph E., if Jefferson desired to live at “Brierfield.” Jefferson did not prefer to take up his abode there, and hence .Joseph E. made no change in the disposition of that property.

2. Yery promptly after the death of Joseph E. Davis, and .after the will had been proved and established by Dr. Bow-mar, one of the executors, Jefferson voluntarily gave bond, when none was required by the will, and took the oath prescribed by law as one of the executors.

8. He took an active and leading part in the consultations .and proceedings of the executors (a record of which was kept, which he and the other executors signed). At the meeting in December, 1870 (the first one), the choses in action due the testator were carefully examined, a schedule of them — including the bond of the Montgomerys for $300,000 and the interest notes of $18,000 each — were recorded in the journal, .and Dr. Bowmar was directed to include them in the inventory as assets of the estate; and that without hint or intimation from Jefferson Davis that he claimed part of the fund in his .separate right. At this meeting the several provisions of the will were discussed seriatim. Among other things it was decided that the direction to invest the portion of the $300,000 .(the price of ‘ Hurricane ’ ’ and ‘ ‘ Brierfield ’ ’) for the grandchildren applied to the principal sum given them, and not the interest; and that, after satisfying the legatees, the residue of that sum would be available for creditors and legatees.

4. In 1871 Mr. Davis participated with the executors in - taking cumulative mortgage security from the Montgomerys.

5. Other meetings of the executors were held, down to and including those of December 26 and 27, 1873, which Jefferson Davis attended, the chief business at which was the discussion of the indebtedness of the Montgomerys and the means and probabilities of payment.

6. During these years the interest notes of the Montgomeryswere collected, and a distribution of th'e money made to the-legatees, to pay intesest on their bequests. Jefferson Davis on each occasion received the share of his children.

That the effect of these acts and others hereinafter mentioned may be better appreciated, I quote several clauses of the will

“ First. I give and bequeath to my grandchildren, Joseph D. Mitchell and Mary Elizabeth Mitchell, all the estate, real,, personal, and mixed, as well as all right and credits with which I may die seized and possessed, subject to the legacies- and bequests hereinafter mentioned, to be controlled by my executors in the manner hereinafter directed.”

The same provision, in effect, is repeated in another clause. The fifth article is :

“ It is my will and desire, and I so direct my executors, out-of the money due from the sale of Hurricane and Brierlield plantations, amounting to $300,000, secured by the joint obligations of B. T. and Wm. T. and Isaiah Montgomery, payable 1st January, 1876, bearing date the 19th November, 1866, secured by mortgage on the land sold, and also their obligations for interest, on the maturity of said bond for $300,000, it is my will and desire that my executors set apart and secure to my granddaughter, Mary Elizabeth Mitchell, $100,000 ; to-my grandson, Jos. D. Mitchell, $50,000 ; to Margaret, Jefferson, William, and Yarina Davis, children of my brother, Jefferson Davis, $20,000 each; and until the said sums-"become clue they shall be entitled to receive interest at 6 per •cent per annum, as secured by said interest obligations.”

The other clause relates to investments to be made for Mary E. and Joseph D. Mitchell. Interest to be paid to the children •of Jefferson Davis until they severally become of age, when the principal shall be paid them. “ The legacies herein directed to be paid from the proceeds of said sale shall be a lien on, and held by, such legatees, with all the rights and privileges of the mortgagee.”

Two observations are obvious in respect of these articles: One is that the testator did not intend to die intestate as to any property of whatever kind, whether tangible or dioses in action; and the words accomplish that intention. Second, that the pecuniary legacies to the two grandchildren, and his nephews and nieces, were to be paid out of the proceeds of the sale of the Hurricane and Brierfield plantations ; and that whatever surplus of that fund there might be would pass, under the residuary clause, to the grandchildren, Mary E. and Joseph D. Mitchell.

That such is the legal effect of the clauses quoted is too plain for argument.

Such was the construction put on the will by the executors at their first consultation, as recorded in their journal.

The burden of debts would fall upon so much of the estate as would constitute the residuum — what would remain after ■satisfying the specific legacies. To the extent of the debts would be diminished what would otherwise go to the grandchildren as residuary legatees.

It appears that Jefferson Davis had a debt of long standing against his brother, Joseph E. The executors had refused to pay it; nor could it have been recovered from them.

On December 21, 1872, Jefferson Davis entered into a contract, under seal, with Mary E. and Joseph D. Mitchell, described as “legatees under the last will and testament of Joseph E. Davis, dec’d,” by which they agreed to pay $10,000 in satisfaction of the claim, out of the “residuary fund.” There is the further stipulation that the interest due annually from the Montgomerys shall be used as follows: first, ‘ ‘ to pay taxes, general debts, and necessary expenses in the administration of the estate ; to pay interest on the respective legacies made -chargeable by the will on the revenues derived from the Hurricane and Brierfield plantations ; to pay the debt due to Jefferson Davis, as per this agreement, out of any surplus-which may remain after discharging the above preferred obligations.”

The legal effect of this agreement is that Joseph D. and-Mary E. Mitchell obligated themselves to pay Jefferson Davis-110,000 out of the residuary fund, in “ compromise and satisfaction of his claim against the estate; ’ ’ and to that extent they agree to subtract from what may come to them as residuary legatees. They further agree that payment may be-made out of the interest notes, if there shall be an excess after discharging prior enumerated claims upon it.

The contract is signed and sealed by the three parties. It. contains the distinct recital and admission that Joseph D. and Mary E. Mitchell are legatees “of the residuary fund.mentioned in the will of the testator.” Part of that fund is the excess of the $300,000 (Montgomerys’ bond) over the legacies charged upon it.

It further recites that the interest notes are part of the assets of the estate, and shall be used for certain purposes — in part, to pay this debt.

In this writing, in effect, Mr. Davis says to these legatees r “ You are the owners of the fund that must pay this debt if it is ever paid. The executors do not feel authorized to pay it. If you will agree to assume it, by way of compromise I will fix the amount at $10,000.” The will devotes the notes to keep down the interest on the specific legacies. But the parties covenant that they shall first be applied ‘ ‘ to pay the taxes, general debts, and expenses of administration.” In-this particular the concession is all on the side of the legatees, since Mr. Davis was personally a recipient of commissions, which are part of the “ expenses of administration.”

The further covenant is that the executors shall pay the debt, from time to time, out of the “ fund named, but not so as to impair the full amount of the several legacies charged on the proceeds to be derived from the Hurricane and Brierfield plantations” — that is to say, these residuary legatees are in no event to subtract from their specific pecuniary legacies derived from the land sale, but that whatever remains after paying them is pledged.

This is an affirmation and assertion, in the form of a contract, that Joseph E. Davis had rightfully disposed of the proceeds of “Brierfield” by his will. And Jefferson Davis covenants, with the largest donees of that fund, that so much of it as shall not be needed for specific bequests shall be apjdied to pay him a large sum, as creditor of the estate.

Let us now attend to the principles of law, and their effect on the claim of a party to' trust property, set up in the face of such acts as those we have been considering.

A trustee is, ordinarily, the owner of the legal title, and the nature and quality of the estate generally depend on the limitations in the instalment under which he takes. The executor takes the legal title to the chose in action. His acceptance of the trust is the investiture of the title. There is a repugnancy and inconsistency in entering upon the office and dealing with the dioses in action as assets, and, at the same time, cherishing an adversary claim to the effects. The position is one of confidence, and implies that the executor will discharge it with fidelity.

There is nothing harsh in the rule which requires the executor, when in full possession of knowledge as respects his own claim to any part of the assets, to make up his mind whether he will discharge the trusts imposed by the testator, or whether he will assert his own claim. If we may say that the act of giving bond and taking the oath will not conclude him, to

these we may add the inventory. But there must, in reason, arrive a time when the executor has done so many things in execution of the will as that he should be conclusively held as having waived or abandoned his own pretensions. The doctrine of estoppel, as expounded by modern jurists, is founded in wisdom and justice and the purest morality. The essence of it is responsibility for one’s deliberate acts and conduct. In the leading case of Pickard v. Sears, 6 Ad. & E. 469, Lord Denman said : “ The rule of law is clear thát where one, by words or conduct, causes another to believe a certain state of facts, and induces him to act on that belief, so as to alter his previous position, the former is concluded from averring against the latter a different state of things as existing at the time.” For illustration: where a party became “receptor” for goods Jevied on by an officer, he was precluded from setting up a title in himself at the time of the levy; because such claim would be inconsistent with his duty to restore the goods, and the creditor and officer may,have been influenced to forbear talcing other measures to make the debt. Dezell v. Odell, 3 Hill, 215. Speaking of the effect of it, the court says: “It is a-clear case of an admission by the defendant, intended to influence the conduct of a man with whom he was dealing,.and actually leading him into a line of conduct which must be prejudicial to his interests unless the defendant be cut off from the power of retraction.” “Before the defendant can show adverse title, he must prove that he was drawn into the admission by fraud, or some gross mistake of fact.” The same, in principle, are the cases of Presbyterian Congregation of Salem v. Williams, 9 Wend. 147; Stephens v. Baird, 9 Cow. 274; Stonard v. Dunkin, 2 Camp. 344.

In Saunders’ Heirs v. Saunders’ Executors, 2 Litt. 321, Gatewood (one of the executors) refused to hold the slave as executor, but promptly set up a title (undoubtedly good) in right of his wife. That title was proved in a friendly suit against the other executors. It does not appear that the slave was ever inventoried, or treated by the executors as the property of the testator. Gatewood referred his possession to his wife’s title.

The character of trustee, in any of its relations, imposes special duties and disabilities.

In Henderson v. Segars et al., 28 Ala. 358, a party assumed the position of trustee in a deed fraudulent as to creditors, and so Icnown to him. The court held that, pending the obligation which he, had assumed to carry out the trust, it was not competent for him to set up his own claim as creditor, or ¡is surety for White (th & fraudulent grantor), antagonistic to the trust; for the reason “ that he was effectually estopped, by reason of the relation he voluntarily assumed.” “ The deed being valid as to him, all the duties and disabilities which attach to ordinary trustees at once were devolved on him.” If he had been permitted to aver that he was a creditor, or a surety of the grantor, so as to reach the property, he would have broken up the trust which he had consented to execute. He was, therefore, conclusively esteemed as having waived his claim as creditor.

In Stone v. Godfrey, 5 De G. M. & G. 94 (54 Eng. Ch.), Lord Justice Turner, in the course of his judgment, declared “ that it is impossible for a person who has acquired possession of an estate upon trust for the benefit of another, to be permitted to set up that possession as adverse to another. It was the father’s duty, if he meant to claim adversely to his daughter, to have given up possession, and then to have set up his claim after he had redelivered possession.” In that case Stone, the hither, was clearly entitled to the estate by the curtesy. He was advised by counsel that he had no such estate. So believing, he accepted the trust for his daughter, and continued in its performance for many years.

There is one important difference between that case and the one before us : Jefferson Davis did not accept the trust under a mistake of law, or incorrect advice of counsel. He did not continue to discharge the trust as many years as Stone, but he did as many acts of unequivocal loyalty to the testator and cestuis que trust as did Stone.

In Duncan v. Bryan, 11 Ga. 66, it was said by Lumpkin, C. J., that, “Duncan having consented to act as Mrs. Wallace’s trustee, he shall be forever afterwards precluded from contesting the fact in any suit between themselves.” “ The law forces no one to accept the gift of an estate, whether made in trust or not; but, having once accepted the trust and got possession of the property, he cannot throw off the duties and responsibilities thus voluntarily incurred.” See, also, Manigault v. Deas, 1 Bailey Eq. 289.

In Benjamin v. Gill, 45 Ga. 112, the executor set up title in himself against the estate. The pretension was met by the allegation that it came too late — that the executor was concluded by his acts. And the learned judge adds: “Some distinctions have been drawn as to what state of the proceedings, -what time in the history of the executorship, this estoppel commences ; ” and answers : “ There is not one [case] where the trustee has been fully clothed with the trust in which he is not bound by his acceptance.”

That is a deliberate act, by which the executor is clothed with the legal title to the personal effects and credits — or, at least, such title as may be necessary to uphold the trusts and enable him to execute them. If the executor, however, is misled by counsel as to his rights, or had not then full knowledge of them, it might well be concluded that he accepted in mistake or ignorance ; and if, on discovery of the truth, he retraced his steps, he might be relieved if he had done no acts which he could not gainsay or recall.

But when is the point reached beyond which the executor cannot go without being met with an estoppel? The argument for the appellant is, and the opinion of a majority of the court is, that the point is not reached until the executor has dope some act to undo which would prejudice the cestui que trust. If these executors had received from Montgomery, in 1872, one-half the purchase-money of “Hurricane” and “Brier-field,” and had paid it over to, or invested it for, Mary E. and Joseph D. Mitchell, and to the guardian of the children of Jefferson Davis, it would not be pretended that such act would not have been conclusive.' Unless the collection and distribution of a part of that fund to the legatees is different in principle from the collection and like distribution of the whole, Jefferson Davis is estopped.

In 1870, 1871, and 1872 — for three years — he participated in the collection of the interest on the debt for the purchase-money of the plantations, and paid over to the legatees the interest on their respective legacies, and retained, as guardian of his children, their portion of it. Is there any case to be found which holds that an executor who has accepted the trust, collected the debts, and paid off the legatees, can be permitted to recover back the filnd from them,.on a title which he had when he entered on the trust, and about which he then had full knowledge? Is there any distinction, in principle or reason, between that case and the one of partial payment t& the legatees ? The one is just as potent an estoppel as the other. McWilliams v. Ramsey, 23 Ala. 813.

Wherever the principle of estoppel subserves right and justice, it has application, as a party cannot stand by and culpably or negligently allow another to contract on the faith and understanding of a fact which he can contradict; if he does, he cannot dispute that fact in an action against a person whom he has assisted in deceiving. Where one so conducts himself— whether intentionally or not — that a reasonable person would infer a certain state of things to -exist, and acts on that infer-' ence, he shall afterwards be estopped to deny it. Freeman v. Cook, 2 Ex. 654. Nor is it necessary that there should have been a design to mislead. Bank v. Hazard, 30 N. Y. 226.

Surely if a man is estopped by his culpable or negligent silence (whether intended to mislead or not); whereby another believes a certain fact and makes a contract — certainly the principle applies with the more vigor xohere he is a party to-the contract into which another has thus been induced to enter. Nor is an express recital or affirmation of a fact necessary where it is evident, from the terms of the deed, that it was the intention of the parties that a certain state of facts should be affirmed, as the inducement to the deed. Van Rensselaer v. Kearney, 11 How. 297.

Where facts aré recited, those facts become conclusive evidence, and the party is not permitted to deny the truth of the statement. Herman on Estop., secs. 211, 212.

Where a written contract is entered into without fraud, imposition, or mistake, the parties to it are conclusively presumed to assent to its terms and legal effect. If a statement or recital is the inducement or basis of the contract, none of the parties can gainsay it. Stringhill v. Buck, 14 Q. B. 781; Bowman v. Taylor, 2 Ad. & E. 278.

Where the recital is a statement which all the parties have agreed to admit as true, it is an estoppel on all. Carpenter v. Bullen, 8 Mee. & W. 209.

The matter need not be specifically stated; it may be by express terms or necessary implication, and it binds 'the party because it must necessarily have influenced the other party. The doctrine is founded, when properly applied, on the principles of morality, and commends itself to the reason. Although it may shut out the truth in the- particular case, and is sometimes called “ odious,” it should be remembered that it debars it only in cases where the utterance or affirmation would be the denial of a previous affirmation, upon the faith of which parties had changed their position, or dealt, or pledged credit. Ber Nelson, J., in Van Rensselaer v. Kearney, 11 How. 325, 326.

Upon what principle is the creditor who accepts a trust which implies the property to the payment of all the grantor’s •debts pari passu, precluded from asserting a prior lien under a judgment in his favor? Plainly, as said in one of the cases, to do so would be “ inconsistent with the terms of the trust.” The necessary result would be, either altogether or partially to defeat the trust. When the creditor who had that advantage over others deliberately consented to perform the trust, accepted the confidence of the grantor, he was conclusively held as having waived his lien and consented to accept a prorata share under the deed.

That doctrine has been announced in too many cases, and is too well supported by authority, to be doubted at this day.' The principle as fully, in reason and analogy, applies to an executor as to a trustee constituted by deed.

Courts of equity have never regarded the form of the trust as the material matter. If it arises out of the nature of the transaction and the relation of the parties, without written memorial, the consequence is the same. Thus, the auctioneer who has received goods for his customer will not be tolerated to deny the customer’s right to the proceeds by reason of his own right to the property. Osgood v. Nichols, 5 Gray, 420. The case of Dezell v. Odell, 3 Hill, 215, supra, is another apt illustration.

Devise is one of the common-law modes of assurance of title. Estates, trusts, and settlements can be as well created by will as by deed. Undoubtedly, a strict legal title to the bond and notes of the purchasers of “Hurricane” and “ Brierfield ” vested in the executors, with aright in their own names, as such, to the appropriate remedies at law and in equity for their collection. But more than that: the executors are charged with an express trust in respect of these funds of long duration — that is, the executors shall invest, for Mary Elizabeth and Joseph D. Mitchell, so much of their portion of the fund, “ in some safe stocks, as in the opinion of the executors shall be advisable, but not less than half; to be held in trust for them by the executors, the interest only to be paid to them, for twenty years.” They may change the investment, and reinvest, if safer and more productive. So, a trust is impressed as to that part given to the testator’s nieces and nephews. The executors shall make interest for them until they severally attain majority, when the capital shall be paid to them.

This is not the case of an ordinary will, where the whole duty of the executors is to gather in the assets, pay the debts, and deliver over the residue to legatees. But it is a case where a large fund is vested, as to legal title, in the confidential friends of the testator, on trusts which require judgment and prudence. These friends are called, in the will, “ executors ; ” but it is enjoined upon them to hold in trust, for a long term of years, the fund, and pay over to' the beneficiaries only the interest. Now, it would not be controverted that if Jefferson Davis and his associates had accepted just such a trust declared by deed, had taken possession of the bond and notes, and had dealt with them as directed, making collections and disbursements, and taking additional securities, that each, one of them would be concluded from setting up any pretensions of adverse personal claim to the trust property. Precluded for the reason founded in the necessities of society — that where property is thus confided to another, who, without surprise or fraud, or ignorance of his own claims, but deliberately, accepts the title or power over the property, and enters upon the discharge of duties in respect of it, he has made his election, and has, by his conduct, abandoned rights incompatible and repugnant to the duty thus voluntarily assumed.

The doctrine is essential to the safe transaction of the business of life. When a proposition is made, whether by deed or will, to confide to another property the control of which goes along with- the acceptance of the fiduciary relation, it is due to candor, and the confidence thus implied, that the offer shall be declined if the party to whom it is made has rights or pretensions to the property which he proposes to assert. And it is because the creator of the trust acts on the assumption that it will be faithfully executed if accepted, that the obligation is imposed on the other party to decline if his interests are in conflict; if he does not, he is esteemed as'waiving his adverse rights.

In order to- bind -the trustee by an acceptance, we do not look so much to the form of the instrument, or the nature of the transaction out of which the trust springs, as to his conduct. Whenever that is marked by deliberation, and is characterized by unmistakable acts of performance of the trust, so that there is no doubt about acceptance and an intent to perform, then the decisive step has been taken, which cannot be retraced.

If, as has been suggested, it be necessary that the executor, •or other trustee, should obtain possession of the property, before by his acts, he can manifest a waiver or abandonment of adversary claims in himself to it, such condition has been fully met in this case.

The testator required the concurrence of a majority of the executors who qualified in the performance of the duties enjoined. In a more than usually formal manner the executors gave evidence of compliance with this direction of the will. But three qualified, including Jefferson Davis. At their first meeting, when all were present, the papers of their testator were carefully examined; the notes, bonds, and other evidences of indebtedness to the deceased were scrutinized, and a schedule of them written down in their journal, including ^he debt of the Montgomerys. It was thus declared that these constituted part of the assets, and Dr. Bowmar was instructed, by resolution entered on the journal, to return to the Chancery Court an inventory of these credits, as assets. These proceedings made the inventory the act of the three, and the possession of these evidences of debt was a joint possession. At the same meeting a conclusion was reached as to the disposition made by the testator of these credits, and that the will, in respect of them, should be carried out according to the construction put upon it by the executors, as recorded in the journal. Afterwards Dr. Bowmar and Jefferson Davis visited the plantations sold to the Montgomerys, in order to make some arrangement for the belter security of the indebtedness. They obtained a cumulative security, in the form ■of a mortgage, on real estate not included in the sede, which ■conveyance was to the grantees in their capacity as executors. Afterwards Mr. Davis participated in a release of this security. When collections of this fund were made, he received part as compensation for services, and other portions as guardian of his children. And it is fairly inferable that he qualified himself as guardian of his children that he might receive for them ; for the will directed the payments received for interests on their legacies to be made bj the executors to their legal guardian. And it does not appear that they had any property or income other than from this source.

It seems, therefore, to me to be very plain that Jefferson Davis had possession of the trust estate, jointly with his co-executors, technically and completely; and, by reason of such possession and dominion, acquired by virtue of his office of executor, he, with his associates, exercised complete ownership and dominion, according to the effect and tenor of the will. Such possession and ownership is of the same virtue and effect in law to bind him as if he had been sole executor, and had done the acts enumerated as sole executor.

Dr. Bowmar, in his deposition, speaking of the Montgomery notes, says: “Seven notes, of $18,000 each, came into our hands. On the note due January 1, 1869, there was a credit of $13,860 paid to the testator. Four of these notes have been collected, together with the balance due on that of 1869, except the balance remitted. Mr. Jefferson Davis received for his children their distributive share, except for the last year, which has not been paid in full. He has received his share of the commissions as executor for two years, on the first and second annual accounts, in April, 1873, and January, 1874.”

The language of the court in Anderson v. Smoot, Spears Eq. 312, is fully applicable: “If Smoot took possession of the property in right of the complainants, as their agent ox-voluntary trustee, he woxxld be concluded to deny their title by setting up title in himself or any one else.” * * * In that case the possession had been acquired as administrator.

In substance, the same judicial declaration is made in Benjamin v. Gill, 45 Ga. 110 (cited above) : “ The executor got possession of the land, by virtue of his office as executor.” His possession was the possession of the estate. “ Ho cannot [therefore] - meet the action of ejectment by a claim of title adverse to the estate.”

I think, after a careful examination of the authorities, that the rule laid down in Lewin on Trusts, page 325, and Perry on Trusts, section 433, is fully sustained ; and, further, that it is just and reasonable, viz. : “That a trustee is under no circumstances allowed to set up a title adverse to his cestui que trust; but, though he may not claim against his cestui que trust, he is not bound to deliver over the property to his cestui que trust, if he cannot safely do so, by reason of notice of title in another, which is paramount to the trust.”

The conduct of Jefferson Davis during the last four years of his brother’s life, and especially since his death, covering a period of about eight jmars in all, ivas a continuous affirmation, by successive acts and declarations, that Joseph E. Davis had title to “ Brierfield,” Avith aright to dispose of its proceeds by last will and testament.

Under the influence which these acts must have produced on the minds of all who Avere beneficiaries of the will, he applied to the residuary legatees to agree to pay him $10,000 as the compromise of a claim against the testator, barred long before his death. He Avent to them as alone the owners of the fund out of Avhich payment could be made to creditors, unless, indeed, the residuum Avould be insufficient for creditors. They covenant and agree Avith him, in effect, that the executors shall paA^ out of the residuary fund this debt. The entire scope of the agreement is a pledge by the legatees, as owners, with absolute control and power of disposition of part of their property, to pay this claim ; and yet neither pending the negotiations nor at the time the contract Avas sealed did he disclose that he had a right to nearly $70,000 of the fund, on the faith of their OAvnership of which they had agreed to pay his claim.

The contract of 1872 Avas signed and sealed by the parties ■on the understanding, as its basis, that Joseph D. Mitchell and his sister were owners, by their title as legatees, of the entire proceeds of the sale of “ Hurricane ” and “ Brierfield,” charg'ed first with the specific legacies to themselves and the children of Jefferson Davis. Jefferson Davis accepted their obligation to pay out of the surplus of that fund, as well as whatever else remained after discharging the smaller legacies. That conceded ownership referred to in the contract, and arising upon it by necessary implication as clearly as if recited in express words, was the predicate on which the legatees entered into it.

It is evident, as laid down in the authorities cited, that if the parties to the contract assumed as true that condition of fact as the predicate of the obligatory stipulation, his claim as creditor is absolutely inconsistent and repugnant to the claim set up in the bill.

The legatees would not for a moment have entertained the proposition to paj’- this debt if Mr. Davis had disclosed a purpose at some future time to set up an adverse claim to a large part of the very fund out of which they had engaged to pay him. This transaction operates against Mr. Davis both as an affirmation by conduct and by acquiescence.

Acquiescence of a party is often very strong- admission, and may also be conclusive; but to have such effect it must exhibit some act of the mind, and amount to voluntary demeanor or conduct of the party. The circumstances must be, not only such as afforded him an opportunity to speak or act, but such as would naturally call for acts or reply from men similarly situated. 1 Greenl. on Ev., sec. 197.

This negotiation assumed that the grandchildren owned the fund out of which payment was to be made. It is a very “ strong admission” of the fact. If Jefferson Davis cherished an unavowed claim to the fund, “ an opportunity to speak was afforded;” and the duty arose before the nephew and niece committed themselves by the contract.

If Jefferson Davis had stood silently bjr and suffered Joseph D. Mitchell and his sister to have sold or mortgaged all that their grandfather had bequeathed and devised to them, it could not be doubted that he would be estopped to assert title in himself against the purchaser or mortgagee.

With how much greater force of reason does the principle apply when he is the beneficiary of the contract. In the former case- he would be concluded, because he permitted another to be misled ; in the latter the other parties are deluded and he is benefited.

Jefferson Davis, by his acquiescence and non-claim during the four years that his brother lived after the sale; by his giving bond and taking oath to execute the will; by the inventory ; by his formal discussions and decisions as to the proper construction of the. will; by his collections of money arising from the sale of the lands ; by his payment of the interest on the legacies charged on that fund — these transactions running through a period of four years after his brother’s death ; and especially by his negotiations and sealed contract with Mary E. and Joseph D. Mitchell, styled, in the writing, “ legatees under the last will of Joseph E. Davis,” the whole tenor and effect of which is that the former is legatee of the fund derived from “Hurricane” and “Brierfield” to the extent of $100,000, and the latter of $50,000, and. that they are residuaries of the balance of it — these acts of omission and commission, of silence and affirmation, conclusively estop him from asserting.the claim set up in the bill.

There is no doubt that Jefferson Davis had a well-founded •expectation that his brother would make ample provision for himself or family, either with “ Brierfield” or its equivalent. It may be put in stronger language — he never doubted that his brother would do so. Joseph E. supposed that he had •done his duty in that' respect when, by his will in 1865, he ■devised it to Jefferson’s children. Subsequently Joseph E. thought it best to give pecuniary legacies to the childi'en, the full equivalent of “Brierfield;” and Jefferson himself made up his mind to regard it.as a fulfillment of his brother’s duty to himself or his family, and had decided to abide by it. His conduct is not explicable on any other ground. That is conceded by one of my associates, But having deliberately done-too many acts in that line, the locus pomitentice was passed, and he cannot.retrace.

It will not do to say that estoppel has no application because nobody has been injured. If the covenant to surrender, and a direction to the executors to pay $10,000 out of their residuary fund, is not a “ prejudice” to the two legatees, or-is not a change “ of their former position,” I am not able to-conceive what fact or act would meet, the requirement of the-principle.

If the appellant’s claim be allowed, much that has been-done in execution of the will must be undone, which will materially alter the .position of the cestuis que trust, to their serious prejudice. The interest which has been collected and paid over to Mary E. and Joseph D. Mitchell must, in part, be recalled, if that shall be needed to make good to the appellant interest on the value of “Brierfield” from the time the purchaser’s notes for interest were collected, either by the testator or by the executors. And, secondly, it would annul, or render impossible of performance, the contract of 1872 with the residuary legatees; for, by it their specific legacies,, charged on the proceeds of the sale of “Hurricane” and “ Brierfield,” are declared, in effect, to be intact, although to-make them so the value of “Brierfield” were needed; and, ■further, the debt assumed to be paid by them to appellant is indicated and agreed to be primarily paid out of the $70,000 of that fund not included in the specific legacies, which would be impossible if the appellant succeeded.

With an observation on another point made in argument for the appellant, and adopted by one, if not both, of my associates, I will close this protracted discussion. It is said that Joseph E. Davis died intestate as to $70,000- — -the supposed value of “ Brierfield ” — and the clause of the will on which that argument is rested is : “In case of the failure to collect ■the whole amount of the funds set apart for the payment of the legacies to my grandson, Joseph D. Mitchell, my granddaughter, Mary E. Mitchell, my niece, Margaret and Varina Davis, and nephews, Jeiferson and ^William Davis, I' desire that my ■executors shall make a pro-rata deduction from their several legacies mentioned.”

If just enough is. collected to pay the legacies in full, then It is plain no deduction is contemplated. The meaning is, if less than enough is collected for that purpose, then the deduc- ■ tion.shall be made. That- construction is made manifest when .read in connection with article 5, which directs the several amounts given to the legatees to be paid “ out of” this fund, the executors to set apart and secure to the beneficiaries the several amounts given to them. “And the legacies herein ■directed to be paid from the proceeds of such sale shall be a lien on, and held by, such legatees, with all the rights and privileges of the mortgagee.” Here the direction is to pay ■out of the whole fund, though it might exhaust it.

Take the whole will together, and there is no difficulty in its meaning; and that is, the legacies charged on this fund are to be paid in full, if it yields enough. If it falls short, a proportional abatement must- take place. If the fund is in excess of the legacies, then the surplus, much or little, is disposed of by the residuary bequests. Í

A careful consideration of the case has brought me to the ■conclusion that there is no error in the decree, and that it •ought to be affirmed.

The foregoing was filed as my dissenting opinion on the first hearing. I still adhere to it.

ADDENDUM.

Since the reargument was granted, counsel on both sides have jiled a letter from Mrs. Davis to Joseph E. Davis, dated November 11, 1865, and agree that it may be considered as part of the record.

The following extract was in a communication from Jefferson Davis to his wife, probably of date October 20,1865, viz. :

“ Brother Joe should not, I think, return to the river place. .All. is changed. He will be troubled beyond his strength by the confusion that must exist. An agent will suit the new regime much better than the old one. If he goes back, why not take the ‘ Brierfield ’ house ?' He can claim possession as owner of the land. But my decided opinion, is, in the existing condition, neither he nor Lize should stay there.”'

The extract is appended as cumulative evidence tending to- - support the conclusion which I reached without its aid.