Iredell County NcArchives Court.....Falls, V. Torrance 1826
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Source: Nc Court Reports Vol 11, 1826
Written: 1826

June Term 1826

FALLS and others v. TORRANCE. 

From Iredell.

A purchase by an administrator enures solely to the benefit of the next of 
kin, and the slave purchased remains in the hands of the administrator after 
the sale upon the same trust as before. One marrying an administratrix is 
trustee of the intestate's property in the same manner as his wife was, 
especially if he have notice that it was the property of the intestate. The 
claim of the next of kin to distribution is not affected by the statute of 
limitations, being the case of a trust to which the statute has no 
application. In such case time is not a bar, but a circumstance from which a 
presumption may arise that the demand has been settled by payment or 
otherwise. A great lapse of time affords a strong presumption, but such 
presumption may be repelled by facts explanatory of the delay.

And though the Court will not encourage claims brought forward after a great 
efflux of time, but will presume against them, yet where the delay is 
satisfactorily explained and the presumption of satisfaction sufficiently 
removed, the equity of the claimant remains unaffected, and the Court will 
decree for him, notwithstanding the great lapse, of time.

In regard to time, equity acts by analogy to statute law or to common law, and 
time has the same effect as at law in the analogous case. (413) Where the 
statute applies, time is a positive bar, may be pleaded, or is the ground of 
demurrer, and the right can only be saved by the same exceptions as at law 
have that effect.

It seems that equities of redemption and constructive trusts are cases in 
which equity acts as analogy to the statute, and time should be a bar in 
itself, according to the recent decisions in England. But when the rule as to 
time was adopted in this State, in such cases, equity was supposed to act in 
analogy to the common law. Hence, the time adopted was twenty years, and 
hence, also, it was considered as only affording a presumption of fact, and 
not as a positive bar. Though this notion was incorrect, and properly seven 
years is the period and should be a bar, in analogy to our statute of 
limitations, yet the notion has been so long adopted—is supported by such a 
train of decisions, and so much property depends upon it, that it is now too 
late to disturb it. In cases of direct or pure trusts, time has no influence. 
The estate of the trustee is that which supports the trust, and without which 
it could not exist, and his possession operates for the benefit of the cestui 
que trust. The trustee cannot, by any act of his, make his estate and 
possession adverse to the cestui que trust. The trust owes its existence to 
agreement, and it requires the consent of the parties to destroy it. 
Therefore, if the trustee be guilty of wrongful conduct, he does not cease 
thereby to be a trustee, and of the same kind of trust as before such conduct—
but it is at the election of the cestui que trust to consider the trust at an 
end (if he please) and treat the trustee as a wrong doer.

This cause having been retained, on a former motion to dismiss (vide 9 N. C., 
490), now came on to be heard, when it appeared to be a bill filed in 1817, 
setting forth, that one Gilbraith Falls died intestate, in June, 1780, and 
that in 1781, administration on his estate was granted to his widow, who in 
1784 intermarried with Hugh Torrance; that complainants were the children of 
Gilbraith Falls, and at the time of his death were infants; that some of them, 
the daughters, married in infancy, and were yet married women; that among 
other property which belonged to their deceased father, was a negro woman 
Flora, who came into the possession of Hugh Torrance upon his intermarriage 
with Mrs. Falls, and that Flora had become the mother of several children; 
that Torrance and his wife never (414) made any settlement of their accounts 
as administrator and administratrix of Falls, and in 1815 or 1816, they died, 
and letters of administration on the estate of Hugh Torrance, were granted to 
his son James Torrance, the defendant, who by virtue thereof, took into his 
possession Flora and her children.

The bill further stated, that for a number of years, complainants were 
ignorant of the situation of their father's estate, and further, that Hugh 
Torrance made repeated declarations that he did not intend to hold, nor did he 
claim Flora and her children as his property, but that they should be 
distributed among the children of Gilbraith Falls, whereby complainants became 
less anxious to press for an immediate decision.

The prayer of the bill was, that James Torrance might deliver up Flora and her 
children, and account for the value of their labour.

The answer of the defendant admitted that Hugh Torrance died, as stated in the 
bill, possessed of Flora, and also of her children; and stated that in 
November, 1781, the personal estate of Gilbraith Falls was exposed to public 
sale; that in the month of March, 1784, another sale was made by the 
administrator, at which, not only almost all the property sold at the sale of 
1781 was again sold; but also sundry articles which had come to the hands of 
the administrator since 1781; that this second sale was made on account of the 
depreciation of the currency of the country in the years 1781, 1782 and 1783; 
that owing to the entire depreciation of the continental money before the year 
1784, the value of the estate was greatly reduced, and Hugh Torrance applied 
to the purchasers at the first sale (who were mostly the next of kin, or near 
relations of Gilbraith Falls) to surrender their purchases and permit the 
property to be again sold, and many of them did so. That as to the negro 
Flora, she was the child of Binah, who belonged to the estate of G. Falls; 
that Binah was purchased at the sale in 1781 by Mrs. Torrance, then the widow 
of G. Falls, at the price of £70 hard money, which was a fair price, (415) 
that Flora was born after this purchase of Binah, but whether before or after 
the sale in 1784, defendant was ignorant; that Binah, was sold at the second 
sale in 1784, and purchased by Hugh Torrance, and Flora, if then born, must 
have been an infant, and was probably sold with her mother; and defendants 
insisted, that if Flora was born before the second sale, she was born the 
property of Hugh Torrance, inasmuch as her mother Binah, belonged to him under 
the purchase of the widow at the first sale, and his subsequent intermarriage 
with her; and that Hugh Torrance was not bound in Law or Equity to expose 
Flora to sale for the benefit of the estate of G. Falls.

Defendants also stated that a settlement of the accounts of the estate of G. 
Falls had taken place, and complainants had given receipts for their 
distributive shares more than 18 years ago, and some as far back as 1785; and 
insisted that as the bill charged no fraud, and pointed out no specific 
errors, complainants ought not, after this lapse of time, to open the account, 
and they prayed all the benefit which Equity would give from lapse of time.

As to the coverture of some of the complainants, defendants insisted it was 
true of a few only, and their husbands were competent to take care of their 
rights, and had every opportunity of learning the situation of the girl Flora; 
and as to declarations made by Hugh Torrance, that he held Flora and her 
children in trust for complainants, defendants answered, that they did not 
admit, nor had they reason to believe such to be the fact, but rather the 
contrary.

Seawell & Badger, for complainants. 

Gaston, for defendants.

For Defendants.—Hugh Torrance, from whose administrator these negroes are 
demanded, was not the administrator of Gilbraith Falls. His wife was, but her 
representatives are not before the Court. This is not therefore a case in 
which the execution of a trust is demanded (410) from an original, actual, 
express trustee, but one, in which a trust is to be raised by implication, a 
constructive trust to be established by reason of the circumstances under 
which possession was obtained. Mrs. Torrance held Flora, before marriage, as 
her own. Being originally a trustee, plaintiffs had a right to consider her as 
always a trustee; and if this claim had been brought against her or her 
representatives, it might be regarded as liable to the rule, that no time 
operates as a bar proprio jure (17 Ves., 96 to 100).

Nor is this a case in which it is admitted that the trust remains open, 
entirely unexecuted, but one in which an execution of it has been made; but it 
is contended to have been erroneous, and is sought to be corrected. The 
defendants swear, that the estate has been settled, and the time elapsed 
furnishes a perfect conviction of it. It is not therefore a case like Ryden v. 
Jones (1 Hawks, 505), of "an open, unexecuted trust, in which it is not 
pretended that the price has ever been accounted for."

If these complainants once had a right to demand these negroes specifically, 
have they now this right as against the representatives of Hugh Torrance?

There are four classes of cases in Equity on the subject of time.

1. A title may exist at law, and the effectual assertion of it there, be so 
obstructed, as to drive the claimant into Equity. In such case, the assertion 
of the claim in Equity must be made within the time prescribed for bringing an 
action at law. The change of forum shall not prejudice the defendant. Here the 
Court of Equity acts in obedience to the statute of limitations. (2 Scho. & 
Lef, 630, 633.)

2. A title may exist in Equity, where none exists at Law, and where relief in 
a different mode is given in Equity. In such case, if the equitable title be 
not asserted within the time within which a legal title, of the same nature, 
ought to be sued on, to prevent the bar created by the statute, the Court of 
Equity, acting by analogy to (417) the statute, will not relieve (1 Scho. & 
Lef., 429. 2 Scho. & Lef., 636-7. 17 Ves., 97-8).

3. Where there is no bar from the statute, either in Law or Equity, lapse of 
time alone, unexplained, raises & presumption of satisfaction, both in Law and 
Equity; e. g. twenty years on a bond, raises presumption of payment; so on a 
legacy, Jones v. Turberville (2 Ves., jun., 13; Ibid., 289). As to the general 
grounds of such presumption, see 12 Ves., 265-6, approved by the Supreme Court 
of U. S., in 6 Wheat., 504, quoted 10 Wheat., 177, 2 Atk., 105.

4. But where there is no bar, and no presumption of payment, a Court of Equity 
sometimes refuses relief on grounds of public policy. 2 Scho. & Lef., 630, 639—
4 Bro. Ch. Ca., 257—2 Ves., jun., 90, 92-3-4, Ibid., 584.

The last three of these rules or classes embrace the present case. The 
possession of Mrs. Torrance and her husband was notoriously adverse, and there 
was no new cause of action founded on any acknowledgment of his. The 
presumption of satisfaction on the facts, is irresistible; some of the parties 
were present at the sale, no claim is made for thirty-six years, the accounts 
settled with auditors in 1793, and the property personal.

Again, it would be intolerable, after such acquiescence, to take from one 
family, and give to another, a whole family of slaves, raised from a child, 
born after the mother was bought, upon so vague an excuse for delay as is here 
offered. Who of complainants were infants, when did disabilities cease, when 
were new ones created? These are matters, which if relied on as furnishing 
exemptions, should be shewn distinctly. Besides, by analogy to the law, 
exemption of one will not prevent a bar as against all, and certainly cannot 
relieve all. The plaintiffs must bring themselves within the time, or some 
established exception, or show some deliberate act reviving the old, or 
creating a new claim. Gaston then examined, and commented on the testimony 
offered to support the allegation of plaintiffs, that Torrance, by his 
declaration, lulled them into (418) security, and insisted that it was a 
course pregnant with danger, to rely on vague accounts given of what he had 
been heard to say, "that he intended to leave the property" to the 
complainants; "that he did not care about the property he obtained by his 
wife," &c.

Taylor, C. J.—Upon reading the evidence in this case, the general conclusion I 
have reached is, that Flora and her descendants, were, after his death, part 
of the personal estate of Gilbraith Falls, and as such, subject to 
distribution amongst the next of kin, not having been otherwise disposed of by 
the administrators, in the regular exercise of their prescribed legal duties. 
It is not shown at what period of time Flora was born, whether before or after 
the first sale; but from her not being named in the first account of sales 
returned, from her apparent age at the second sale, from the reason then 
assigned by the administratrix for not selling her, and from other 
circumstances appearing in the case, I feel warranted in the conclusion, that 
she was born between the two sales. But admitting that she was born before the 
first sale, and that Binah, her mother, and herself, were purchased by the 
widow, administratrix, that sale, as it respected Flora, was a nullity, and 
can enure ouly to the benefit of the distributees. Their right to the property 
was not divested by it.

The same consequence follows, if she was born after the first sale, and before 
the second. In either case, she should have been disposed of with the rest of 
the personals, and the administratrix omitting to make such disposition, must, 
in Equity, be considered as retaining the possession under the original trust. 
When the second sale took place, it is admitted by the answer, that Hugh 
Torrance was married to the widow, and that he possessed himself of Flora, who 
was then bound by the trust, of which Torrance had notice, as further appears 
in the answer, for he applied to the purchasers at the first sale to surrender 
their (419) purchases for the purpose of a resale. He is therefore bound in 
Equity, with respect to Flora and her children, to the execution of the trust.

From this short view of the case, it results, that the complainants are 
entitled to a decree, unless relief is barred by the lapse of time. It is 
true, that a Court of Equity is unwilling to countenance stale demands; and is 
averse to an interference in behalf of persons who have slept upon their 
rights, even in cases where there is no bar interposed by the statute of 
limitations. They will in such cases, adopt the presumption founded on the 
efflux of time that the controversy has been settled by payment, or otherwise. 
Time is, in such cases, a circumstance affording a strong prima facie 
presumption, but liable to be repelled by other circumstances, explanatory of 
the delay.

There has been in this case, a very considerable lapse of time, which 
considered alone, would be much more than sufficient to bar many claims to 
which no act of limitations applies, and which at first view forms a great 
ejection to the relief sought. But I cannot but think, that the peculiar 
circumstances of the case are of strength sufficient to destroy any 
presumption arising from the delay, and to enable the Court to do justice, 
without infringing any of its rules, or holding out encouragement to the 
spirit of wanton and dormant litigation. The property remains the same, with 
only the addition of an increase from the parent stock; it is completely 
identified, and has undergone no other change of possession than that from 
Huqh Torrance to his administrator. The state of the property seems to have 
been known to some of the witnesses, and most probably to the neighbourhood, 
so that no purchaser will be vexed by a disputed title. The complainants could 
only assert their right bv a legal controversy with the man who had married 
their mother, and who, it may be reasonably inferred, from the character given 
of him by the witnesses, had treated them with parental affection. But if 
these ties were too feeble to restrain them, those of interest may be deemed 
sufficient, for he had said in repeated conversations with the (420) 
witnesses, that the property he acquired by his marriage should devolve upon 
the children of Gilbraith Falls, who had made it; and it is not at all 
probable that those children were ignorant of such declarations. Under the 
influence of these combined motives, the distributees may be supposed to have 
abstained from the assertion of their rights, without taking into view the 
legal disabilities under which some of them continued. Against these 
circumstances, I cannot presume that their demands have been settled, or that 
they have unreasonably slept upon their rights; but am of opinion that the 
equity of the case is in their favour.

Henderson, Judge.—As regards time, Equity acts either in analogy to the 
statute law or common law, when to the former, the statute of limitations is 
introduced with all its rigors, time is a positive bar, it may be pleaded, it 
is cause for demurrer, nothing prevents its operation, but what will have the 
same effect at law; when it begins to run it continues so, notwithstanding 
supervenient disabilities, if all the complainants are not within its saving, 
all are without them.

Where it acts in analogy to the common law, time is no bar of itself, but it 
furnishes evidence of a fact which is a bar, payment or satisfaction, or 
possibly abandonment; the lapse of time itself, is not therefore pleaded as a 
bar, but the fact which may be inferred from it is, but it is an inference of 
fact, not of law, as under the statute; it is offered as evidence, and like 
all other evidence, may be rebutted; there is something like an exception, 
when the lapse of twenty years, without other circumstances, is relied on, 
from this alone, a presumption of payment is inferred; it is one of those 
cases mentioned by Lord Erskine, the mind forms no belief about it for want of 
data, yet it is an inference of fact, and the belief, if it deserves that 
name, may be repelled by evidence, either dehors or intrinsic, and a bill in 
such case, cannot be demurred to, for want (421) of stating thosr 
circumstances by which it is repelled, for they are matters of evidence only, 
and the bill should contain the facts and not the evidence, the first class of 
cases embraces those suits in Equity where the matter of them may also be the 
subject of one of those actions at law, enumerated in the statute, and in 
England at this day also, all suits in Equity, where the subject of them is 
analogous to the subject matter of any of such actions. An instance of cases 
of the first kind, is a bill for an account for the same thing, as would 
support an action of account at law, six years is a bar in such case, and may 
be pleaded as such; an equity of redemption, or an implied or rather a 
constructive trust, is an instance of the second kind, twenty years adverse 
possession in such cases is a statute bar, and may be pleaded as such. The 
equity of redemption and the constructive trusts, being analogous to legal 
estates, an entry into which is barred by an adverse possession for twenty 
years, a bill to redeem, after twenty years, such possession, without stating 
on its face that which would take the case out of the statute at law, is bad 
on demurrer; so all the late cases on the subject, and particularly the cases 
of Beckford et al. v. Wade, 17 Ves., 98, and Walpole's heirs v. Clinton. When 
we adopted our rules as to time, as regards equities of redemption and 
construction trusts, indeed as to all cases except in such where the subject 
of the bill might be the subject of one of those actions enumerated in the 
act, the rule was understood to be framed in analogy to the common law; it was 
thought both here and there, that the statute had nothing to do with it, time 
was therefore considered as a mere matter of evidence, a presumption of fact; 
it therefore did not vary with the change of time by the statute, from twenty 
to seven years as it would have done if it had been thought to have been 
formed in analogy to the statute of England—it was easy to make the change in 
the decisions, for the time remained the same, to-wit, twenty years. We have 
adopted (422) the common law ride throughout. Twenty years of itself forms a 
presumption of payment, or satisfaction, as it does at law; but is here, as 
there, a mere inference of fact—time is the evidence, and the inference may be 
repelled here, as it is there. It cannot, I think, be denied, but that, upon 
principle, the late English decisions are right, and of course, that ours are 
wrong; but after an uniform train of decisions for more than a century, the 
principle has something like legislative sanction, we cannot make a change, 
too much property depends on it. We must therefore declare the rule to be, 
that less than twenty yoars will not bar an equity of redemption, or an 
implied trust; and that should a longer period elapse, it is but matter of 
evidence, and that the presumption arising from it may be repelled; but that 
twenty years of itself, without proofs either way, dehors or intrinsic, raises 
a presumption of payment, abandonment or satisfaction, imperative on courts 
and juries, as to equities of redemption of personal property, and implied 
trusts relating to the same, particularly as to slaves. I believe, but I am 
not positive, that the same rule has always prevailed. We can get nothing on 
the subject from English decisions, personal property not being the subject of 
mortgage. It is there called pledging, in regard to which they have very 
different rules from those applied to mortgages. Pure trusts are not subject 
to the operation of time; for the possession of the trustee, is the possession 
of the cestui que trust. It is that which supports and fortifies his estate, 
and which, in fact, cannot exist without it. An analogy to the law time forms 
no bar; for the cause of action does not accrue, unless the trustee thinks 
proper to consider that it has—for it is not in the power of such a trustee to 
put off his character at pleasure. It was by agreement that, it was created, 
and it requires the consent of both parties to put an end to it; but the 
cestui que trust may, if he thinks proper, consider the trust as at an end 
upon any misconduct of the trustee; but the trustee cannot, by his act or 
declaration, shake off his character. I am therefore disposed to doubt the 
(423) correctness of some late opinions, that in such cases time begins to run 
from the time the trustee disavows his character, and that is made known to 
the cestui que trust; for I am persuaded, that he can no more, by his own act, 
put off his character, than a tenant can, during his time, put off his, and 
convert his occupation into an adverse possession. During the period allowed 
by law for the settlement of the estate, the administrator may be considered 
as holding the property on an express trust, and afterwards, perhaps, as to 
negro property, it would bo doing him no injustice, to view him in the same 
character; for, bylaw, he cannot purchase them himself, nor can they be 
rightfully sold by him, but by an order of the Court, and then only for the 
payment of debts, where the perishable property is insufficient for that 
purpose, or for the purpose of making division among those entitled. But this 
case does not require that this question should be decided; for the case is, I 
think, against him, upon the ground of his standing as a trustee by 
implication or construction, a situation more favorable for him.

It appears that at the second sale, for I pay no regard to the first, as far 
as purchases were made by the administratrix, that the girl Flora was not 
sold, she being claimed by Mrs. Torrance, upon some frivolous ground—that 
afterwards, when the settlement or statement was made by the commissioners, 
Huggins and Davidson (upon which settlement, Torrance's distribution among 
each of the distributees was made and at different periods of time), she was 
not brought into account, and had she been sold for the payment of debts, it 
is to be presumed it would have been then alleged by him, for the statement 
was made long after the death of Falls, and his marriage with the widow; all 
these facts show very clearly, I think, that she remains yet to be accounted 
for. It is a case where the next of kin do not barely show that he was once 
liable, and call on him to account, in which case, lapse of time would of 
itself afford presumption of satisfaction, but by these (424) proofs, render 
it next to impossible that he should have accounted. I lay no great stress 
upon Torrance's declarations that Falls' children should enjoy the fruits of 
their father's labors, further than to rebut the idea of abandonment, for it 
grew out of some conversation in the family relative to the claim (I presume) 
for those negroes, for it does not appear that they claimed any thing more; 
but it weighs nothing with me, as to Torrance's recognition of their right; 
for I think it was nothing more than a mere gratuitous promise, which the law 
does not recognize, but refers the obligation entirely to the will of the 
person who made it. An account therefore will be taken of the hire of the 
negroes and the expense of raising them, allowing all monies or other things 
expended for their support. The account may be taken by any one the parties 
may agree on to do it, otherwise by the Master of this Court.

Approved. Nesbith v. Brown, 16 N. C., 30; Petty v. Norman, Ib., 191; Benzein 
v. Lenoir, Ib., 225; Robison v. Lewis, 45 N. C., 58; Glenn v. Kenbrough, 58 N. 
C., 173; Whedbee v. Whedbee, Ib., 392; Grant v. Hughes, 94 N. C., 231.

Additional Comments:
North Carolina Reports, Volume 11
Cases Argued and Determined in the SUPREME COURT of NORTH CAROLINA.
For December Term 1825 and June Term 1826 
by Francis L Hawks (Vol. IV)
Annotated by Walter Clark
Richmond: James E Goode Printing Company, Printers
1897

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