[*]appropriated to the use of persons ascertained and of full age, are bound, unless expressly relieved from such obligation by the instrument directing the sale, to see that the money is applied in the manner and to the purposes intended. The same rule holds where estates, subject to the payment of particular sums, are disposed of for the purpose of their discharge. But these rules will not be acted on to the prejudice of purchasers beyond a reasonable time; from long neglect an inference arises, that the parties beneficially interested had either been satisfied their demands, or had agreed to relinquish them. What space of time will serve to establish this supposition-whether or not a period less than twenty years-appears not to be distinctly settled; though the probability is, that if the period be much less than twenty years, the equity of the cestuis que trust would still subsist(a). There is however no doubt that delay for so long as that of twenty years, unanswered, would a devisee in trust of lands to compel a sale when the annual produce is not sufficient to pay their debts, they should not disturb a fair purchaser after being in quiet possession of the trust estate for so long a time as sixteen years. Elliott v. Merriman, 2 Atk. 41. The circumstance of the devisee in the last case being also executor may probably have influenced the determination of the court. Indeed the Master of the Rolls distinctly laid it down, that a charge for payment of debts gives an executor a right to sell as much as an express devise to him for that purpose; whence it seems, that in the case under consideration, the purchaser was from the first exempted from seeing to the application to the purchase money. The point however mainly relied on by His Honor was the plaintiff's delay. And it may, therefore, perhaps be fairly concluded, that whether a devisee charged with the payment of debts be or be not likewise executor (for the principle of delay must apply equally to both cases), a purchaser from him, after long peaceable possession, will not be considered liable to the testator's unsatisfied creditors. (a) Cusse v. Ash, Finch, 316. prove fatal to the claim. Twenty-two years have expressly been held to discharge the purchaser's liability (a) (1). XII. The determination of a right to require accounts has already come incidentally under notice; as [*]in those cases where an improper distribution by an executor or administrator is complained of,— when the demand is for an account of the personal estate; and again, where trust money which has been lost or misapplied, is sought to be recovered,—the prayer of the bill in such case being for an account of the trustees' receipts and payments. The following miscellaneous cases concur in showing, that the liability of a party answerable for funds which he has received, or for money which he has neglected to pay, will, from the long forbearance of the persons entitled, be considered to have been discharged (2). Thus, where a bill on the part of several of the officers and seamen of a company of adventurers, called the Royal Family Privateers of Bristol (who, in 1746, fitted out several ships for the purpose of cruising against France and Spain), was brought against the principal managers praying an account of (a) Culpepper v. Austin, 2 Cha. Ca. 221; Spalding v. Shalmer, 1 Vern. 301. (1) Coxe v. Smith, 4 Johns. Ch. 271. Boyle v. Rowand, 3 Dessaus, 555. Stanley v. Cramer, 4 Cow. 717. Stranghan, &c. v. Wright, &c., 4 Rand. 493. (2) Ellison v. Moffatt, 1 Johns. Ch. 46. Mooers v. White, 6 Johns. Ch. 369. Goner v. Hall, 3 Har. & Johns. 31. Fisher v. Tucker, 1 McCord, Ch. 169. Colman v. Lyne's exr., 4 Rand. 454. the produce of the captures, but it appeared that nearly thirty years before a decree for the same purpose had been made in a former suit-though such decree had not been acted on; Lord Alvanley, M. R., declaring it would be contrary to the principles of equity to entertain the bill after so great a lapse of time, ordered it to be dismissed (a). By the act for the relief of insolvent debtors, passed in 1742, the assignee of the insolvent's estate was directed, [*]after payment of the creditors' demands and his own charges, to return the overplus to the debtor: Provision was also made by the act for the removal, when necessary, of any assignee, and for the appointment of a new assignee, under the authority of a court of law. By virtue of this statute, an assignee was appointed to dispose of the estate and effects of an insolvent, who took the benefit of the act in the year wherein it was passed. That assignee was removed, and another appointed; and after a succession of removals and new appointments, M., in 1779, was made assignee under a rule of the Common Pleas. It appeared that M. obtained possession of the insolvent's estate, and disposed of some parts of it, but that he afterwards died without making distribution, leaving N. his heir and personal representative. In 1818, the administrator of the insolvent (who had been dead several years) applied for a rule against N. to show cause, why a new assignee should not be appointed, and an account taken of such part of the insolvent's estate as had come to the hands of (a) Pearson v. Belchier, 4 Ves. Wymondsell, 3 P. Wms. 143; 627. See also Sturt v. Mellish, 2. Mackdowell v. Halfpenny, 2 Vern. Atk. 610; South Sea Company v. 484; Wood v. Briant, 2 Atk. 521. M. or N. But the Court of Common Pleas, on the sole ground of the unreasonable length of time which had been suffered to elapse since M.'s appointment, rejected the application(a)(1). Among other directions in a decree in Chancery made in 1778, an occupation rent was ordered to be set by the Master on a mansion-house (part of a trust estate) then in the possession of the defendant, Lord Hinchingbrook. This was neglected to be done; nor [*]was the subject even adverted to in the ensuing report. The defendant still continued in possession for several years, but without making any pecuniary acknowledgment for it. In 1807, a petition was presented to the Lord Chancellor, praying that the direction in the order of 1778 relative to the rent of the mansion-house might be carried into execution, and that the defendant should be ordered to pay rent for the time of his occupation. But Lord Erskine refused to make such order. The length of time since the matter was before agitated furnished in his opinion a clear objection. It was reasonable, he said, to presume from the parties not having before enforced the order, that there was a sufficient cause for not enforcing it. The money might have been paid; or improvements might have swallowed up the rent, and made the defendant a creditor, and not a debtor; or he might have taken possession with the consent of all parties, under an engagement not to be charged with rent(b) (2). (a) Ex-parte Heathfield, 8 (b) Lord Shipbrooke v. Lord Hinchinbrooke, 13 Ves. 387-396. Taunt. 403. (1) Vide Lorton v. Gore, 1 Dow. N. S. 190. (2) Ray et al. v. Bogart et al. 2 Johns. Cas. 3, 432. Rayner v. In regard to bills for the rents and profits of land claimed under an equitable title, the courts, by analogy to the statute of limitations, will not in common cases allow the account to be carried further back than six years(a). Under special circumstances, the account will even be restrained to the time of filing the bill, as where the laches on the part of the plaintiff has been purely voluntary (b). To the general rule, however, [*]an exception occurs, where a bill to obtain possession of an estate and to have an account of the rents and profits is brought by an infant; in which case, the account will be ordered to begin from the time when the infant's title accrued, on the ground that every person, who enters on the estate of an infant is in the capacity and subject to the responsibility of a guardian or bailiff(c). But this indulgence in respect of infancy will only, it seems, be allowed where the claim is prosecuted during the continuance of the minority, or within a reasonable time afterwards. For in Lockey v. Lockey(d), where the owner of an estate neglected for six years or more, (a) Per Lord Camden in Smith v. Clay, 3 Bro. C. C. 640, n; Reade v. Reade, 5 Veş. 749, 750; Stackhouse v. Barnston, 10 Ves. 469. (b) Per Lord Hardwicke in Dormer v. Fortescue, 3 Atk. 130; Pettiward v. Prescott, 7 Ves. 547. (c). Per Lord Hardwicke in Dormer v. Fortescue, 3 Atk. 130. See also Earl of Newburgh v. Bickerstaffe, 1 Vern. 296; Yallop. v. Holworthy, 1 Eq. Abr. 7, p. 10. (d) Prec. Cha. 518. Murrays v. Tolland, 3 Johns. Ch. Pearsall, 3 Johns. Ch. 578-586. 569-57 5. Bolling v. Bolling et ex'r. v. Rondolph's ex'rs. et al. 1 White, 6 Johns. Ch. 360-370. Gregory v. Forrester, 1 M'Cord, Ch. 318-322. Radcliffe v. Wightman, 1 M'Cord, Ch. 408. Irvine v. Robertson, 3 Rand. 549. |