Wyun vs. Lee.

itations, and also in the refusal to charge. Prince, 557. Ibid, 579. Ibid, 904.

Argument of S. JONES, for defendant in error.

This action was brought by John W. Lee, trustee of Mrs. Mary Ann McMillan. By the terms of the deed, the property was conveyed to John W. Lee, trustee, and limited to the use of Mrs. McMillan, (a feme covert,) for life, and then to her children; and it was also stipulated that Mrs. McMillan should have the possession of the negroes. Defendant relies upon a bill of sale made by McMillan, the husband, and the Statute of Limitations of Mississippi, and of the State of Georgia.

And he contends that by the terms of the deed of trust, Mrs. McMillan is entitled to the possession of the negro, and therefore ought to have been the plaintiff in the action.

1st. As to the right of the trustee to sue.

The legal estate and title is in the trustee, and he holds, not only as trustee for Mrs. McMillan, but after her death for her children.

The cestui que trust, though the absolute owner in Equity, in Law is considered in the light of a stranger, and the trustee can bring any action respecting the trust estate in a Court of Law. Lewin on Trusts, page 247.

The right of the cestui que trust to the possession is recognised only in a Court of Equity; for in a Court of Law, the cestui que trust is merely tenant at will or at sufferance. Ibid, 481. Wil lis on Trustees, p. 72, 73, 77, 84–5, 109.

A cestui que trust cannot recover in ejectment, unless a surrender to him of the legal estate can be reasonably presumed, &c. &c. And the cestui que trust has no alternative but to bring his action in the name of the trustee, &c. Ibid, 482.

This question was virtually decided by this Court in the case of Blake, trustee, vs. Irwin, 3 Kelly, 345-6.

The clause in that deed, relative to the possession of Blake, the cestui que trust, is very much like, indeed very similar to the deed before the Court. It is stronger for the cestui que trust

than the deed to Lee.

The Court was unanimous that the legal estate was in the trustees, and that Blake had only an equitable interest. lb. 365.

Wynn rs. Lee.

It was decided in that case, that the entire use was given to Blake, but the use only, and not the corpus. That he was entitled to the possession, but that possession was evidently not an inherent right, by virtue of the estate which he held, but bestowed upon him as the agent, rather, of the trustees.

Again, the clause was inserted in both deeds. (giving the cestui que trust the possession of the property,) to relieve the Court of Chancery from the difficulty it might have felt in ordering the trustee to give the cestui que trust possession of the estate. That he had other uses or trusts to execute, for he was charged with interest, not only of Blake, in the one case, and Mrs. McMillan in the other, (Blake might have children-Mrs. McMillan had them when the deed was executed,) but the interest of the children. I say, relieve the Court from that difficulty, for it is well settled that Courts of Chancery frequently, yea almost always refuse to order the trustee to give possession to the cestui que trust, when there are remainder-men, or others interested in the uses he has to execute.

2d. Was the deed a good one under the laws of South Caroli na, when it was executed? We say yes-non constat that there law of South Carolina, forbidding such a deed.

is any

3d. That plaintiff's right was barred by the Statute of Mississippi.

Statutes of Limitation prescribe the action or remedy, and not the contract; or, in the language of the authority, "prescriptio et execution n pertinent ad valorem constructus sed ad tempus et modum actionis instituendæ." The case of British Linen Co, vs. George Harley Drummond, 21 Com. L. Rep. page 194. Huber vs. Steiner, 29 Ibid, page 304. 20 Ibid, 387. Imlay vs. Mc Ellefsen, 2 East, 453. Decouche and others, vs. Lavetier and others, 3 Johns. C. R. 190. Ruggles vs. Keeler, 3 Johns. 261. Where the decisions are reviewed and the principles affirmed.

All prove that when the Statute applies to the remedy or action, the law of the former prevails. When it relates to the effect of the contract, the law of the place of the contract prevails.

The defendant, aware of the general rule, and that he can claim nothing under it, tries to set up a distinction in his favor. That the Statute of Limitations of Mississippi had run in favor of Lewis before Lewis sold to him in Mississippi, and he brought the negro to this State. To support this position, he relies on

Wynn vs. Lee.

Story on Conflict of Laws, page 487, section 582.

Newby vs.

Blakely, 3 H. & M. 57. Brent vs. Chapman, 5 Cr. 358. Shelby

vs. Grey, 11 Wh. 362.

The distinction contended for by Mr. Story must be taken with the condition mentioned by him, and on which the decisions relied on by defendant were made, to wit:

Where the parties are resident within the jurisdiction, during the period prescribed by the Statute, so that it has operated actually and fully upon the case, and the Statute does not only extinguish the right of action, but the claim or title itself, ipso facto, and declare it a nullity after the prescribed period.

Again, it must be remembered that it is not said to be the law of Mr. Story, but only contended for by him. In other words, it is admitted by him that the weight of authority is against him, while he advances the opinion which has been read.

The Court, if inclined to favor the opinion of Mr. Justice Story, will not certainly enforce it, when the tacts do not place the parties in the situation which he contemplates.

They were not in the same jurisdiction during the period af ter which the action is prescribed.

How much soever we may generally yield to the force of the reasoning of Judge Story on this question, he must be compelled to give way to the force and legal power of the argument of C. Jus. Shaw, in the case of Bulgee vs. Roche, in delivering the opinion of the Court, where he ably sustains the opinion adverse to Judge Story's. 11 Pick. 36. Story's Con. L. 489, note to sec.

582.

Again, the defendent claims under Felix Lewis, who obtained possession in Georgia, and before the Statute commenced running, removed to Mississippi. By the Act of 1806, "That when the defendant shall remove out of the jurisdictional limits of the State," the action may be brought "after the return of the defendant into the same" within the time before limited. Prince, 577.

The defendant seeks to benefit by the possession of Lewis, under whom he claims. He must, then, be subject to the disabilities attached to Lewis.

But Wynn cannot attach the possession of Lewis to his, so as to make out a defence.

Wynn did not purchase from Lewis. He purchased at Mar

Wyn rs. Lee.

shal's sales, in Mississippi, and no privity exists between him (Wynn) and Lewis.

Again, we say that Lewis purchased from McMillan, with a knowledge that it was trust property. He then became a trustee with John W. Lee, and the Statute does not run in his favor against the rights and interest of the cestui que trust.

The Statute of

4th. The Statute of Limitations of Georgia. Georgia did not begin to run while Lewis remained in Georgia, and therefore, could not commence after he left Georgia, by rea. son of the provision of the Act of 1806.

It did not commence. The Act of 1767, sec. 9, provides for persons beyond seas. Wat. Dig. 141.

The expression, beyond stas, has, by numerous decisions, been extended to persons living out of the State. Murray vs. Baker, 3 Wh. 511. Forbes rs. Foot, 2 McCord, 331. Shelby vs. Gray, 11 Wh. 361.

John W. Lee, the trustee, resided in South Carolina, and had not been in the State while F. Lewis remained in it, nor had he been in Mississippi.

Defendant relies on the Act of 1817, taking away the, disabilities of persons beyond the seas.

That can have no operation:

1st. Because, by its title, it is amendatory and explanatory of the Act of 1805, which was repealed before its passage.

And 2d. Because it intended only to explain it, so far as regards Idiots, Lunatics, and Infants, and not as regards persons beyond seas, and is to that extent unconstitutional.

M. J. WELLBORN, in conclusion, for the plaintiff in error, argued that the Court below committed erior.

1. In charging the jury that the non-residence of the defendant in error within the jurisdictional limits Georgia, at the time of the conversion by Felix Lewis, of the slave sued for, prevented the Statute of Limitatious of the State, from commencing to run against the action brought by him, against the plaintiff in error, in the Court below. The charge, in this respect, conflicts with the letter and spirit of the Act of December, 1806, and the recognition of that Act, as subsisting law, by this Court, in the case of Harrison, et al. vs. Walker, 1 Kel. Rep. 35. Certain exceptions to the running of the Act are stated in it, of which the non

Wynn vs. Lee.

residence of the claimant is not oue, and therefore, by an invariable rule of construction, it cannot be implied. Paschal's adm'r vs. Davis, 3 Kel. Rep. 265. Angel on Limitations, 204, 205, 206. Expressio unis est exclusio alterius.

The

2. The defence, so far as it was founded on the Statute of Lim itations or prescription of the State of Mississippi, was a good one. The truth of this proposition is affirmed in principle, by this Court, in the case of Paschal's adm'r vs. Davis, cited above: and is adjudged to be law in those cases to which the Court in Paschal's 'adm'r and Daris approvingly refers, viz: Sims rs. Can field, 2 Ala. Rep. new series, 561. Brent vs. Chapman, 5 Cranch, 358. Goodman vs. Munks, 8 Port. R. 91. Doyle vs. Bouler, 7 Ala. R. N. S. 246. The same doctrine is discussed and affirmed in substance, in the cases of Newby's adm'r vs. Blakey, 3 Hen. & Munf. 57; Garth's executors rs. Barksdale, 5 Munf. 101, and by the Supreme Court of the United States, in terms, in the case of Shelby vs. Guy, 11 Wheaton, 361. In all these cases, it should be observed that the Statutes of Limitations that were respectively passed upon, contained the usual provisions for the barring of actions merely, and touched not in terms the question of right of property or title. For copies of the Acts referred to in the cases cited, see Angel on Lim. 2 edi. Appendix lxxxi xci. right of Lewis, to have defended in the State of Mississippi, by authority of law, the possession of the property in question, at the time it was sold by the Deputy Marshal of Mississippi, to Wynn, is not disputed. Had the present action been instituted against Wynn in the State of Mississippi, I apprehend, as little doubt can exist of his right to have rested his defence there on the previous possession of Lewis, through whom he derived title. Again, had Lewis, or Wynn, after the period for the bringing of the action in hand, by the laws of Mississippi, was expired, lost possession of the slave, could not the right of possession, that all will agree would have been available a sa defence, have been turned to the support of a suit brought to compel restitution! This was the precise case of Newby's adm'r vs. Blakey, quoted from the 3 Hen. & Munf. as it was the case in effect of Garth's caccutors vs. Barksdale, 5 Munf. 101. And what more, it is respectfully inquired, is necessary to clothe one with title to an article of property, than the legal right to defend and demand possession of it, and when possessed of it, to claim, use, and enjoy it, as one's own,