States, that of the claims sold to Trimble, two certificates of one thousand acres each were transferred to him by Trimble, that they might be located under a contract defendant had with Anderson and Strother; and they were located for defendant and said Trimble jointly, though solely in the name of defendant, defendant binding himself to convey to Trimble one half. That these warrants were laid on the land in Lincoln county, two hundred and seventy acres of which were lost by interfering claims. That subsequently defendant and Trimble made a contract, by which Trimble gave his half of the two tracts in Lincoln, now amounting to one thousand seven hundred and thirty acres, to defendant (and some boot) for his (defendant's) half of two thousand acres on Poplar creek in east Tennessee, not connected with the Armstrong claims at all, being bought of one Moore. That this trade was made in April, 1809, before the two hundred and seventy acres were lost, and long after the certificates of one thousand acres each had been located in Lincoln, and the land granted; and that in said trade the Lincolu land was estimated at but one dollar per acre, not, in fact, a better price, all things considered, than fifty cents an acre for the warrant.

Answer of the defendant further insists that, at all events, he had a right to consider the one thousand seven hundred and thirty acres, or the certificates by virtue of which those tracts were entered, as part of his one third, which he was to get from Armstrong, under their contract. That grants issued in his name for those lands in Lincoln, in May, 1808; that he took possession of it in November, 1809, and has retained it ever since, which possession has been open, notorious, and adverse, and which he insists is a bar to any claim for it, by virtue of the several acts for the limitation of actions. The answer professes a willingness to account for, and pay over, all the moneys actually received; but insists, as the lands were sold in the life-time of Martin Armstrong, that his administrator would be the proper person to settle with, and that complainants have no right to bring this action for the proceeds of the warrants sold; and that such, also, was the opinion of Jenkin Whiteside, esq., the attorney in fact of complainants, with whom, it will be seen, that various conferences were held by defendant upon the subject of a settlement of this business, from whom nothing was withheld, and who never could surmount the difficulty of the want of an administrator to account with.

Answer admits that about two thousand five hundred acres

of the warrants, other than those sold to Trimble, have been located in the western district, and granted to Martin Armstrong's heirs, of which he claims one third, after paying loca

tor.

As to the two tracts of land, of five thousand and five thousand seven hundred and sixty acres, defendant says the five thousand acre one he bought of Martin Armstrong, and paid for fairly; took open, notorious, and exclusive possession under his deed, in 1810, which he has continued ever since. That after the first purchase, which was in 1803, he caused an execution to be levied on it in 1807, founded upon a judgment against John Armstrong's heirs, under which he bought it again for one thousand dollars, and claims the benefit of said purchase, etc.

As to the five thousand seven hundred and sixty acre tract, he says that he bought that portion of the tract which lay in the Indian boundary, which was about two thirds, and claims no more; says the purchase was fair, in good faith, and as much given for it as it was worth under the circumstances. Insists on possession, lapse of time, statute of limitation, as to both tracts. The testimony upon the price of warrants during the years 1806 to 1809, was at variance. The proof showed the sale of the warrants to Trimble, and conveyance to Campbell of part, and that the Lincoln lands were taken possession of by defendant in 1807 and 1808, and that he had remained in possession ever since.

At the May term, 1829, the chancellor entered a decree in said cause, which it is unnecessary to give, because at the October term following, upon a petition for rehearing by defendant, the decree was set aside, the cause reheard, and the court decided that in the sale to Trimble there was no intention to defraud; but that complainants were entitled to have the sales set aside, and to an account of the price for which the certificates were sold, and the profit made thereon, with interest. That if it did not appear at what price the certificates were sold, complainants were entitled to the highest selling price in 1806, 1807, 1808, or 1809, with simple interest from August 1, 1809. That defendant was protected by the statute of limitations in his claims to the one thousand seven hundred and thirty acres in Lincoln, but that complainants were entitled to two thirds of four fifths of its value on the first day of July, 1817, the time when the seven years expired, with interest thereon; and that defendant was entitled to two thirds of four

fifths of the land in the western district, one fifth being reserved to the locator. Campbell appealed from this decree.

Gibbs and F. B. Fogg, for the complainants. 1. The transaction with Trimble will be considered a nullity, upon a principle that will not be disputed at this day, that an agent to sell can not be interested in the purchase: Fox v. McQueth, 2 Bro. Ch. 400; Davoue v. Fanning, 2 Johns. Ch. 252; Randall v. Errington, 10 Ves. 427; Ex parte Bennett, Id. 381; Lister v. Lister, Id. C31; Ex parte Lacey, Id. 625; Sanderson v. Walker, 13 Id. 601; 2 Eden, 680; 1 Jacobs, 607; 3 Dow. 116. 2. The defendant standing in the situation of trustee, and dealing with his principal's funds for speculation, complainants have the right to whatever profit was made, if any; and if any of the property remains, to that they are entitled, no matter how the form may be altered. In short, an agent or trustee can not be heard to claim any advantage made out of his principal: 5 Ves. 678; 6 Id. 617, 625; 13 Id. 601; 8 Id. 349; 4 Johns. Ch. 118; 3 Biun. 54; Jeremy Eq. 141, 142; 1 Cox Cas. 35. 3. Considering them as partners in the property, the same consequence would result: Hammond v. Douglas, 5 Id. 539; Crawshay v. Collins, 15 Id. 218; Featherstonhaugh v. Fenwick, 17 Id. 298. 4. The defendant was guilty of a gross breach of trust in selling the warrants to himself for one half the price that could have been procured for them with proper care and diligence. If an agent selects an improper time to sell, he is guilty of a breach of trust. The consequence of a breach of trust, even by mistake, is that the court will place the cestui que trust as near as possible in the situation he would otherwise have been: Jeremy Eq. Jur. 153; Moody v. Wallers, 16 Ves. 283. 5. As to the statute of limitations, complainants insist that this was an express trust, and that no limitation runs against an express trust between trustee and cestui que trust: Beckford v. Wade, 17 Ves. 96; 1 Cox, 149; Jeremy Eq. Jur. 9, 26; 1 Vent. 321; 3 Madd. 149; 1 Bro. Ch. Cas. 554; 1 Johns. Ch. 190; Id. 384; Angel on Lim. 133. Washington, contra.

By Court, CATRON, C. J. The first question to be considered in this case is, whether the complainants are barred in part or in whole by the statute of limitations. This point is one in which society is greatly interested. To what description of trusts attempted to be enforced in a court of equity the statute of limitations does apply, has been a matter of frequent difficulty from the earliest history of the British court of chancery.

AM. DEC. VOL. XXIV-36

The subject has been considered of in modern times by judges of great learning and ability, but in a manner too diffuse for the convenience of ordinary readers. The court will attempt to extract from the adjudicated cases the principles governing the present cause, without giving a synopsis of all the adjudications on the subject, a practice but too apt to produce confusion even in a regular treatise.

3

Courts of equity, equally with courts of law, are bound by the statutes of limitation, in all the varieties of bailments, loans, pawns, deposits, etc., although express trusts, where there are convenient remedies in cases at law, or by bill in equity. The leading cases that have settled this principle are: Leroy v. Leroy,' Prec. in Ch. 518; Street v. Millish,' 2 Atk. 610; Howender v. Annesley, 2 Sch. & Lef. 607; Kane v. Bloodgood, 7 Johns. Ch. 106 [11 Am. Dec. 417]; 20 Johns. 14, 600. At law the statute of limitations applies, and may be pleaded in every case in which the species of action brought is embraced by the words of the statute; as "case," in all its varieties: McGinnis v. Jack & Cock,' by the court, Mart. & Yerg. 361; 7 Johns. Ch. Cas. 97, 226; 20 Johns. 576, 610. The conversion or adverse holding is to be proved, for the length of time to form the bar, when the statute applies: 7 Johns. Ch. Cas. 111.

The next class of cases subject to be barred are such as create a trust in the defendant by implication, where the property of complainant has been obtained by defendant by fraud, or unlawful means, and defendant was once liable by bill to be compelled to surrender the property, or make compensation; but complainant did not sue within the limited time. In this class of cases there is no remedy at law; but the trust was not a matter of contract, nor did the relation of trustee and cestui que trust in fact exist. The cause before the court would have presented an instance had Trimble been a defendant. Campbell had transferred to him Armstrong's warrants clothed with the trusts existing between C. and A., yet Trimble was not the express trustee of Armstrong, and could have pleaded the statute of three years to a bill filed for the land warrants issued to himself. Here was a case where no action at law would have lain, but trust and confidence between T. and A. was wanting. Of this class are: Beckford v. Wade, 17 Ves. 87, 96, 97, and Cholmondeley v. Clinton, 2 Meriv. 93. The latter has been recognized by this court in Hickman's Lessee v. Gaither and Frost, and

1. Lockey v. Lockey.

5

2. Sturt v. Mellish.

4. Cocke v. McGinnis, Mart. & Yerg. 361; 17 Am. Dec. 809.

3. Hovenden v. Annesley.

5. 2 Meriv. 171.

it is perhaps the best considered adjudication on the subject extant.

The next inquiry is, Does the present cause fall within either of the foregoing classes? To ascertain this, depends on the facts. It appears that in the year 1799, it was covenanted between Armstrong and Campbell, that Campbell should, as an attorney at law, and as an attorney in fact, attend to and transact the business of Armstrong, in reference to certain lands granted to Armstrong and George Dougherty jointly, lying east of Cumberland mountain, in the state of Tennessee. Campbell "agreed to use his best endeavors to discover and ascertain said lands, and sell and dispose of the said Martin Armstrong's part, half, or moiety of the said lands to the best advantage in his power, according to his skill and opinion." In consideration of which, Armstrong covenanted "that the said G. W. Campbell shall have, receive, and be entitled to one third part of all the said Martin Armstrong's part, half, or moiety of all the aforesaid described lands. And the said Campbell is to have and receive one third part of the moneys or property, and of the value and consideration that may be received for such of the said lands above described as shall be sold; and to such as may not be sold, the said Martin Armstrong hereby agrees to make and execute to the said G. W. Campbell good and sufficient deeds of conveyance in fee simple to the third part of the said Armstrong's half or moiety of the same (that is, of all the lands that shall remain unsold), in a reasonable time after said lands are found out and known, and after application being made to him, or his executors, etc., by the said G. W. Campbell, or his assignees, to have the conveyances made and executed in due form, and agreeably to the quantity and quality of said lands." It was further covenanted, that Armstrong should, from time to time, give Campbell such private instructions as it might be necessary for said Campbell to have for the benefit of both parties, in the sale of the lands, and touching the premises. In the due performance of all which articles and agreements, the said parties, G. W. Campbell and Martin Armstrong, bound themselves each to the other in the penal sum of twenty thousand dollars.

Campbell by this covenant was authorized to sell and dispose of the lands according to his best skill and judgment, and one third part of the moneys or property and of the consideration received for the lands, or any part thereof, he was to retain, and the other two thirds he was to pay over to Armstrong, his princi.