4 Munf. 222 | Va. | 1814
the following Was delivered by Judge Roane as the opinion of this court.
There being sufficient evidence in this case, (independently of the depositions of the two executors,) that the former wife of the appellant purchased the negroes in controversy, with the funds, and on behalf, of the estate of Richard Taylor her former husband, so as t'o constitute her a trustee thereof, in behalf of those entitled to that estate, the court
The court is also of opinion, that, as the facts now disclosed exhibit this as a proper case for the jurisdiction of a court of equity, as contradistinguished from that of a court of law, the decision of the court of law, among the proceedings, in favour of the appellant, on that ground, did not bar the appellees from resorting thereafter to the proper tribunal.
With respept to the plea of the act of limitations, the court is of opinion that, as the appellant married his former wife, being in equity a trustee of the said negroes for the benefit of her husband’s estate as aforesaid; and as he remained in possession thereof, and was not amesnable to a recovery of the same by an action at common law, (a criterion which determines his possession to have been a trust,) that he is not at liberty, according to the principles of equity, to avail himself of the benefit of that act.
On these grounds, the decree is affirmed,
