real and personal estate assets in the hands of an executor or administrator for the payment of the debts of the testator, and such a devise will suspend the operation of the statute as to all debts not barred at the time of the testator's decease.1 As we have already seen, in order to create an express trust, there must be an estate or interest vested in the trustee, therefore a mere power in gross to sell the realty, conferred upon the executor by the terms of the will, does not constitute him a trustee, even though it is for the purpose of paying the testator's debts. But an executor under such a provision in the will may by his conduct, which operates to put creditors and claimants off their guard relative to the collection of their claims, suspend the operation of the statute thereon. Thus, where an executor to whom the testator had given. full power to sell, dispose of, lease, or mortgage any or all of his real. estate, for the payment of his debts and legacies, and for the distribution of the balance among the devisees named in the will, by his acts. held himself out to the devisees as engaged in winding up the estate, and discharging claims prior to theirs, it was held that while he was doing this, or professing to do it, the statute of limitations could not. run against those who had no rights against him until those prior claims. were paid.

The fact that a testator in his will directs that all his just debts shall be paid, does not create a trust for the payment of his debts which will prevent the statute of limitations from applying to a demand against. the estate. But the rule is otherwise where the debts are scheduled, and the schedule is referred to and made a part of the will."

SEC. 206. Executor or Administrator of a Trustee. The executor or administrator of a person who was trustee for another cannot set up the statute to defeat the claim of the cestui que trust for the settlement of the trust. Trust property held by the decedent, which was kept separate from his own property, is not assets in the hands of his executor; and if the trust funds were invested by the decedent in personal securities, and kept distinct from his own estate, and they pass into the hands of his executor with the express trust on their face, they are in equity, to all intents and purposes, the property of the cestui que trust, and equity will compel their specific delivery; but if, instead of subsisting in the hands of the executor, as executor, it has become a mere money trans

action, although it originated in a trust, it assumes the character of a debt, and the cestui que trust becomes a creditor, and liable to be barred as such.1

SEC. 207. Power to sell Property. A simple power conferred by one person upon another to sell property does not create an express trust which suspends the operation of the statute as to the avails of the sale, because the legal estate still remains in the person conferring the authority; but it has been held that a power of attorney given by A. to B., placing the whole property of A. at the disposal of B., with full authority to collect all claims, and make sale of all property, real or personal, and out of the interest of the proceeds to pay for the maintenance of A., with a provision that B. shall account whenever desired, is a direct trust, which lapse of time or the statute of limitations will not bar. So where it is the duty of a trustee to give a cestui que trust notice of the sale of trust property, the statute will not begin to run until such notice is given.*

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SEC. 208. Effect on Cestui que Trust when Trustee is barred. Sale of Trust Estate. When the legal title of property is vested in a trustee who can sue for it, and fails to do so within the statutory period, an infant cestui who has only an equitable interest will also be barred; but the rule is otherwise when the legal title is vested in the infant, or cast upon him by operation of law. The rule only applies in cases where the trustee might have brought an action, but neglected to do so. If he has estopped himself from suing by a sale of the property, thus uniting with the purchaser in a breach of his trust, the wrong is to the beneficiaries, not to him, and, while he cannot sue, the beneficiaries, if under any disability, are not affected by the statute.

1 Trecothick v. Austin, 4 Mas. (U. S. C. C.) 16.

2 Dickinson v. Teasdale, ante.

3 Cook v. Williams, 2 N. J. Eq. 209. 4 Fox v. Cash, 11 Penn. St. 207.

5 Wingfield v. Virgin, 51 Ga. 139; Brady v. Walters, 55 id. 25; Molton v. Henderson, 62 Ala. 426; Williams v. Otey, 8 Humph. (Tenn.) 563; Woodbridge v. Planters' Bank, 1 Sneed (Tenn.), 297; Pendergast v. Foley, 8 Ga. 1; Goss v. Singleton, 2 Head (Tenn.), 67.

6 Wingfield v. Virgin, ante.

7 Parker v. Hall, 2 Head (Tenn.), 641; Evertsen v. Tappen, 5 Johns. (N.-Y.) Ch. 497; Fish v. Wilson, 15 Tex. 430; Jones v. Goodwin, 10 Rich. (S. C.) Eq. 226. Where trustees, by authority of an act of assembly, sold and conveyed land, reserving in the deed a ground rent, to be paid to the proprietor of the land, when he

And if the cestui que

should be ascertained, and the proprietor of the land afterwards filed a bill against the purchaser to recover the ground rents, the statute of limitations was held to be no bar to the recovery. Mulliday v. Machir, 4 Gratt. (Va.) 1.

Where a sale of infants' property was made by a master, under a decree by which he was directed to sell, and apply the interest, and as much as might be necessary of the principal, of the proceeds, to the support of the infants, it was held that he was a trustee, and that the statute did not run against a suit, by the infants, for an account, until he had denied his liability. Houseal v. Gibbes, 1 Bailey (S. C.) Ch.

482.

A person giving to his children, by deed, property, real and personal, to be enjoyed by them after his death, himself retaining a life estate, is a trustee for the

trust was ignorant of the sale, and the purchaser knew of the trust, the cestui que trust will not be barred. In a South Carolina case1 it was held that if one having notice of the trust purchases of the husband and trustee a negro held in trust for the wife, he will not acquire a title under the statute of limitations by a continued possession of the negro for the statutory period, the wife being ignorant of the sale. The rule is that a person who purchases of a trustee the whole or part of the trust property, bona fide, and without notice or knowledge of the trust, will acquire a good title as against the cestui que trust; but a person who purchases trust property with notice of the trust holds the title as trustee, and stands in the place of his grantor, and is chargeable with the trust.

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SEC. 209. Factors and Agents. - A common and very important fiduciary relation is that of an agent or factor to his principal. If a person acts as a general agent for another, and there is a current account, the rule is said to be that the statute does not begin to run until the expiration of the agency; but in a Connecticut case a doctrine antagonistical to this was adopted as to an agent for the collection of rents, the sale of lands, &c., and given full authority and control in that respect over the plaintiff's land, and the recovery in that case was restricted to such items as had accrued within six years next preceding the bringing of the action. But it is held that, where the agency is

children, and cannot set up the statute of limitations against them in consequence of his possession. Dawson v. Dawson, Rice (S. C.) Ch. 243.

A purchase at a sheriff's sale, under an agreement to hold the property for the benefit of the debtor, constitutes a technical trust not within the statute of limitations. McDonald v. May, 1 Rich. (S. C.) Ch. 91. But the purchase of one's land at a sheriff's sale, with an agreement that he shall remain in possession and refund the money at an indefinite period, does not create a "continuing trust" to bar the statute of limitations in South Carolina. Hughes v. Hughes, Cheves (S. C.), 33. If a sheriff and a judgment creditor hold money in trust to pay over to other creditors who have appealed from that judgment, they cannot avail themselves of the bar of the statute. Gay v. Edwards, 30 Miss. 218.

Where an agent for the purchase of land took a title in his own name for the benefit of the principal, it was held that the statute did not run against the principal's claim to the land. Hutchinson v. Hutchinson, 4 Desau. (S. C.) 77.

1 Jones v. Goodwin, ante.

2 Wyse v. Dandridge, 35 Miss. 672; Henderson v. Dodd, 1 Bailey (S. C.) Eq. 138; Prevo v. Walters, 5 Ill. 35; Hudnal v. Wilder, 4 McCord (S. C.), 294; Christmas v. Mitchell, 3 Ired. (N. C.) Eq. 535; Bracken v. Miller, 4 W. & S. (Penn.) 102.

3 Stewart v. Chadwick, 8 Iowa, 463; Pinson v. Ivey, 1 Yerg. (Tenn.) 296; Jones v. Shattuck, 41 Ala. 262; Murray v. Ballou, 1 Johns. (N. Y.) Ch. 566; Webster v. French, 11 Ill. 254.

Hopkins v. Hopkins, 4 Strobh. (S. C.) Eq. 207. This principle is well illustrated in a New York case, Davy v. Field, 1 Abb. (N. Y.) App. Dec. 490, in which it was held that, where a sheriff collects money for several creditors upon successive attachments against a single debtor, the fund will be treated as entire, and the statute does not begin to run against any creditor from the time when his claim was collected, but from the time when the whole is called. See also, holding doctrine stated in the text, Parris v. Cobb, 5 Rich. (S. C.) Eq. 450; Estes v. Stokes, 2 Rich. (S. C.) 133.

5 Hart's Appeal, 32 Conn. 520.

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special, the statute attaches upon the consummation of each transaction or the accrual of each item.1 Where an agent receives money for his principal, it is generally held that the statute does not attach until a demand has been made upon him therefor by the principal. But this question depends largely upon the contract between the agent and his principal relative to accounting. If a person is constituted an agent for the collection of rents, the sale of property, &c., and agrees to receive the money and account for the same, he is treated as agreeing to account immediately upon the receipt of the money and without demand; but if money is deposited with him to be invested, and he agrees to account therefor on demand, a right of action does not accrue against him until a demand has been made upon him for an account, and consequently, whether the money has been loaned by him, or converted to his own use in violation of his trust, the statute does not attach until demand has been made. As between a factor and consignor of goods, sent to the former to be sold, in the absence of any special contract relative to an accounting for the same, he is treated as contracting to account therefor on demand, consequently the statute does not run against the consignor until demand for an accounting is made by him," or an account is rendered by the factor to the consignor, in which case the statute begins to run from the time of the rendition of the account," or directions from the consignor to remit the proceeds."

SEC. 210. Partners. The statute does not run between partners so long as the partnership continues, and each partner is in the exercise of his right, nor necessarily after its dissolution, where there are debts due to or from it. There is no definite rule of law that

1 Hopkins v. Hopkins, ante.

2 Taylor v. Spears, 8 Ark. 429; Hyman v. Gray, 4 Jones (N. C.) L. 155; Gardner v. Peyton, 5 Cranch (U. S. C. C.), 560; Lever v. Lever, 1 Hill (S. C.) Ch. 62; Merle v. Andrews, 4 Tex. 200; Judah v. Dyott, 3 Blackf. (Ind.) 324.

8 Hart's Appeal, ante.

4 Baker v. Joseph, 16 Cal. 173; s. p. Sadowsky v. M'Farland, 3 Dana (Ky.), 204. For a more extended review of the rules and authorities bearing upon this question, see ante, Chap. XI.

5 Baird v. Walker, 12 Barb. (N. Y.) 298; Topham v. Braddick, 1 Taunt. 571; Green v. Johnson, 3 G. & J. (Md.) 389; Collins v. Benning, 12 Mod. 444; Hyman v. Gray, 4 Jones (N. C.) L. 155; Kane ". Cook, 8 Cal. 449.

6 Murray v. Coster, 20 Johns. (N. Y.) 576; Farmers' & Mechanics' Bank v. Planters' Bank, 10 G. & J. (Md.) 422;

Clark v. Moody, 17 Mass. 145. It is a factor's duty to account in a reasonable time, without demand. Eaton v. Walton, 32 N. H. 352; Lyle v. Murray, 4 Sandf. (N. Y.) 590.

7 Ferris v. Parris, 10 Johns. (N. Y.) 285; Burns v. Pillsbury, 17 N. H. 66; Holden v. Crafts, 4 E. D. Sm. (N. Y. C. P.) 490; Cooley v. Betts, 24 Wend. (N. Y.) 203.

8 McNair v. Ragaland, 1 Desau. (N. C.) Eq. 533; Hammond v. Hammond, 20 Ga. 556. In Atwater v. Fowler, 1 Edw. (N. Y.) Ch. 417, it was held that where two persons are partners in certain stocks, which are left by one in the hands of the other for sale, the statute does not begin to run until the stocks are finally disposed of. Miller v. Miller, L. R. 8 Eq. 499; Foster v. Hodgson, 19 Ves. 183; Millington v. Holland, W. R. Nov. 22, 1869; Robinson 'v. Alexander, 2 Cl. & F. 717.

the statute begins to run immediately upon the dissolution of the partnership, and the question as to whether it does or not must depend upon the peculiar circumstances of each case. But unless there is some covenant or agreement, express or implied, fixing a period for accounting beyond the time of dissolution, or circumstances that render an accounting impossible, the statute begins to run from the time when the partnership is in fact dissolved. If at the date of dissolution there are debts due to or from the firm, the partnership liability continues until such matters are liquidated, or until they are barred by the statute; and, if one of the partners is appointed to liquidate the affairs of the firm, he may bind the late firm by a note given for money borrowed by him to pay the firm debts; and if no one of the partners is clothed with special authority to liquidate the affairs of the firm, any one of the partners may bind the others by notes given in satisfaction of a debt of the firm ; but none of the partners have authority to bind the others by any promise to pay a debt of the firm which is barred by the statute; and except where provision is otherwise made by statute, one partner may bind another by a promise to pay a debt upon which the statute has not run. Upon the death of a partner, the firm is ipso facto dissolved, and the statute begins to run for and against his personal representatives at once. This question was considered in an English case, on an appeal to the House of Lords, and the result of the decision was that a court of equity will not decree an account between a surviving partner and a deceased partner's estate after the lapse of six years, whether the surviving partner be plaintiff or defendant, and that the punctum temporis from which time commences to run is the date at which the partnership estate is vested in the surviving partner.

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TO

In the case last referred to LORD WESTBURY says that the decision is in accordance with well-settled law." In an earlier English case," WIGRAM, V. C., says: "In this court there is direct and very high authority for the proposition that a court of equity will not, after six years' acquiescence, decree an account between a surviving partner

...

and the estate of a deceased partner."

There is one serious difficulty in the application of this doctrine, and that is, where, after the lapse of six years, valuable partnership assets

1 Massey v. Tingle, 29 Mo. 437.

2 Taylor v. Morrison, 7 Dana (Ky.), 241; Massey v. Tingle, ante; Hammond v. Hammond, ante.

8 McCowin v. Cubbison, 72 Penn. St. 358; Davis's Estate, 5 Whart. (Penn.) 530; Robinson v. Taylor, 4 Penn. St. 242.

4 Ward v. Tyler, 52 Penn. St. 393. 5 Bush v. Stowell, 71 Penn. St. 208; Levy v. Cadet, 17 S. & R. (Penn.) 126; Reppert v. Calvin, 48 Penn. St. 248.

6 McCoon v. Galbraith, 29 Penn. St. 293.

7 Weisman v. Smith, 6 Jones (N. C.)

Eq. 124.

8 Knox v. Gye, L. R. 5 H. L. 674.

9 As early as Lackey v. Lackey, Prec. in Ch. 518. It is proper to say that LORD HATHERLEY dissented from the judgment in Knox v. Gye, ante.

10 Tatam v. Williams, 3 Hare, 347.