delivered the opinion of the Court:
The errors assigned in the petition are substantially, first, that the demurrer to rhe petition of Kelly, administrator, ought to have been sustained; and second, be
I propose to consider these two assignments of error together. Waiving all technical questions in the case I proceed at once to consider the main question in the cause; and that is, whether the petitioner Kelly,administrator. was barred by the statute of. limitations in this case. From the pleadings and evidence in the cause I apprehend there can be no doubt, that the legal title to the slaves, Dinah, Ira and Stuart, was by operation of law vested in the petitioner, Henry J. Kelly, as administrator of Joseph Graham, deeeased. The said petitioner, it appears, was appointed as such administrator before the commencement of the said suit of Lanty Graham and others against said Rebecca Graham and others, which, as we have seen, was commenced on the 5th day of October, 1859, more than twelve years prior to the commencement of this suit, and more than seventeen years prior to the filing of said petition, and also more than seven years before the final decision by this Court of the cause of said Lanty Graham and others against said Rebecca Graham and others.
Mr. Story in his work on Eq. Plead., § 502, among other things says: “The same rule would lie to a bill for the redemption of a mortgage, after a great length of time had elapsed, if (he bill were so framed as to present the objection without any attendant circumstances to obviate it; for in this and other like cases, courts of equity act upon the analogy of the law as to the statutes of limitation, and will not entertain a suit, if it would be barred at law. If the objection does not appear on the face of the bill, it may be taken by way of plea, or by way of answer.” Again at section 750 and 751 of same book, Mr. Story says: “ First. Pleas in bar, founded on matter, which is made a bar by statute. Pleas of this sort are, (1.) The statute of limitations, &c. This is a good bar to a suit in equity, as it is at law; and it will ordinarily bar both the claim of the debt, and the
There is no doubt but that the said Kelly as administrator of the said Joseph Graham, deceased, could have brought his action of trover and conversion against the said Rebecca Graham at any time after she sold the said slaves, Ira and Stuart, for the value thereof, within five years after she sold them, and converted them to her own use. And he might have brought an action of de-tinue against the'said Rebecca for the detention of said slaves, before she sold and converted them to her own use, if he was appointed administrator before she converted them to her use by the sale thereof. But it does not appear in the case, whether said Kelly was appointed administrator before she sold the said slaves, or not. It does appear clearly from the pleadings and evidence in the cause, that the said Rebecca had possession of said slaves claiming them as her own as against all others^ until she sold them, and that she sold and converted them as her own property before the year 1859, and before the first suit against her hereinbefore mentioned was commenced, and it is very clear that the right of action against her by said Kelly as administrator for the value of said slaves was barred, before the second suit in equity, that is before this suit was commenced against her.
Whether the proceeds of the sale of said negroes, Ira and Stuart, in justice and equity belong to the said Rebecca, or her estate, if she is dead, as against he r assig-nee, said James, I do not now pretend to decide, as that question is not now properly before us for decision. Although the said negroes, Ira and Stuart, did not in fact belong to the said Rebecca at the death of her said husband, still she had possession of them, always after the death of her husband claiming them as her own, and sold them as her property; and, as before stated, any action at law against her for the sale and conversion of the same has been barred at law for many years, and it would be strange indeed, if said Kelly, administrator, was barred of an action at law for the value of said slaves, if he could pursue and recover the proceeds of the sale thereof in equity, either in the hands of said Rebe.cca or her assignee thereof, under such circumstances. It seems to me very clear that he cannot do so in this case. The said Rebecca cannot be considered as having had possession of said slaves as trustee, or as having sold them as
It is quite probable, from what now appeal’s, that the said Kelly, administrator, was misled and perhaps to some extent obstructed by the distributees or a large portion of them, except Rebecca, from bringing suit against the said Rebecca for said negro slaves or the value thereof by their adverse claims and different suits in relation thereto; but if this be so, it cannot prevent the statute of limitations running as against the said administrator at law in favor of said Rebecca or her as-signee, or in this case as to the proceeds of the sale thereof in equity.
The counsel for the appellees complains in his printed brief, that the court erred in overruling the exceptions of John Graham and others to the commissioner’s report, and adopted statements numbers one and three of said report. I do not consider these matters as being covered by this appeal, or as being proper now to be considered in the present state of the cause in relation thereto in the court below. The said Kelly as administrator as aforesaid had no interest whatever in the matters included in said last named exceptions. I therefore do .not now decide any thing connected with said matters of account so excepted to as aforesaid, but only decide as to the matters arising upon the petition of the said Kelly as administrator of said Joseph Graham, deceased, and said James Graham and the decrees of the court therein.
For the reasons above stated I am of opinion, that the said decrees of the 17th day of May, 1878, and the 19th day of May, 1879, in so far as they relate to and adjudi
Deoree Reversed IN part. Cause Remanded.