*158

when Angelo returned to Mobile from Corsica, Antonio promised to render an account of the partnership and trust affairs, and make a final settlement of the same, but this falls short of an acknowledgment that there was any. thing due to Angelo, either on account of the trust or partnership property. The bill is bare of any averment that on a settlement of the trust and the partnership there would have been anything due to Angelo. The complaint of the bill is simply that, upon the return of Angelo M. Philippi to Mobile, in 1856, Antonio promised to render an account and make a final settlement of their joint affairs, but had never done so. But aside from this defect in the bill, we think it sufficiently appears on its face that if any ground for relief is therein set forth, it is stale and prescribed by lapse of time, and therefore not entitled to the favor of a court of equity.

Conceding what is contended for by the counsel for plaintiff that the statute of limitations does not run against an express trust, it must be borne in mind that this rule is subject to the qualification that when the trust is repudiated by clear and unequivocal words and acts of the trustee, who claims to hold the trust property as his own, and such repudiation and claim are brought to the notice of the beneficiary in such mannner that he is called upon to assert his equitable rights, the statute of limitations will begin to run from the time such repudiation and claim came to the knowledge of the beneficiary. Gratz v. Prevost, 6 Wheat. 481; Oliver v. Piatt, 3 How. 333; Badger v. Badger, 2 Wall. 87; Kane v. Bloodgood, 7 Johns. Ch. 90; Bright v. Legerton, 2 De G. F. & J. 606; Wedderburn v. Wedderburn, 4 Mylne & C. 52; Merriam v. Hassam, 14 Allen, 522; Attorney General v. Federal Street Meeting-house, 3 Gray, 1; Williams v. First Presby. Soc. 1 Ohio St. 478; Turner v. Smith, 11 Tex. 629. The rule applicable to cases of this kind has been declared by the supreme court of Alabama, in the case of Nettles v. Nettles, 67 Ala. 599, to be as follows: "It is true, as a general rule, that when the relation of trustee and cestui que trust is uniformly admitted to exist, and there is no assertion of adverse claim or ownership by the trustee, lapse of time can constitute no bar to relief. But when the trust relation is repudiated, or time and long acquiescence have obscured the nature and character of the trust, or the acts of the parties or other circumstances give rise to presumptions unfavorable to its continuance, in all such cases a court of equity will refuse relief on the ground of lapse of time, and its inability to do complete justice." See, also, Goodwyn v. Baldwin, 59 Ala. 127; Philippi v. Philippi, 61 Ala. 41; Maury's Adm'r v. Mason's Adm'r, 8 Port. 211; Lansdale v. Smith, 106 U. S. 391; S. C. 1 SUP. CT. REP. 350.

It is plain upon the face of the bill that Antonio Philippe, from and even prior to the year 1856, claimed as his own all the property which the bill alleged had been originally bought with trust or partnership funds, and that the knowledge of this claim was brought home to Angelo M. Philippi. When the latter returned to Mobile, in 1856, he found Antonio Philippe in the possession and enjoyment, and holding by title in his own name, all the property charged to be trust and partnership property. And, although, according to the averments of the bill, he promised to render an account of the partnership and trust affairs, and make a final settlement thereof, he never did so; but from the year 1856, down to the death of Angelo M. Philippi, a period of 18 years, and down to the commencement of this suit, a period of over 23 years, he maintained his possession and used and enjoyed as his own the property and its issues and profits. During all the period between 1856 and his death, Angelo M. Philippi lived in the same city with Antonio Philippe, in poverty, and some of the time in distress for want of means; but, so far as appears by the averments of the bill, the latter never paid him any part of the proceeds of the large property which the bill avers he was holding in trust. There could be no clearer line of conduct on the part of Antonio Philippe to show his repudiation of the alleged trust, and his claim of title to the alleged

trust property; and all was of necessity known by Angelo. This claim of title was acquiesced in by Angelo; for, notwithstanding his poverty and distress for want of means, so far as appears by the bill, he never, after the year 1856, requested of Antonio a settlement of the trust, or demanded from him any part of the trust or partnership property, or the proceeds of either, but applied for and accepted money from him as a loan, and repaid it as far as his means would allow. It is not averred that he was ignorant of any of the facts on which his rights rested, or that they were fraudulently concealed from him, but merely that he was not fully informed of his rights and remedies under the law; and the bill plainly intimates that he declined to sue his brother, not because he was not informed of the facts of his case, but because a suit with so near a relative was repulsive to him, and because he trusted in his brother to do him justice.

It appears from the bill that the present suit was not brought for more than 23 years after the claim of title to the alleged trust and partnership property was thus set up by the acts of Antonio, and after an acquiescence therein of Angelo during the residue of his life, a period of 18 years. The longest period prescribed by the law of Alabama within which actions may be brought is 20 years. Code Ala. 1876, §§ 3223-3231, inclusive. And by the provision of section 3758, the same limitations apply to suits commenced by bill in equity. It is well settled by the decisions of the supreme court of Alabama that, even in the absence of a statute of limitations, if 20 years are allowed to elapse from the time at which proceedings could have been instituted for the settlement of a trust without the commencement of such proceedings, and there has been no recognition or admission within that period of the trust as continuing and undischarged, a presumption of settlement would arise operating as a positive bar. Rhodes v. Turner, 21 Ala. 210; Blackwell's Adm'r v. Blackwell's Distributees, 33 Ala. 57; Worley's Adm'x v. High's Adm'r, 40 Ala. 171; Ragland's Ex'rs v. Morton, 41 Ala. 344; Harrison v. Heflin, 54 Ala. 552: Greenlees v. Greenlees, 62 Ala. 333; McCarthy v. McCarthy, 74 Ala. 546.

The same general rule has been laid down by this and other courts as the settled law of equity jurisprudence. Elmendorf v. Taylor, 10 Wheat. 152; Bowman v. Wathen, 1 How. 189; Wagner v. Baird, 7 How. 233; Kane v. Bloodgood, 7 Johns. Ch. 90; Houmden v. Lord Annesley, 2 Schoales & L. 636; Marquis of Cholmondeley v. Clinton, 2 Jac. & W. 138. These authorities are pertinent and conclusive of the present case.

We have been referred by counsel for appellant to section 2 of ordinance No. 5, adopted on September 27, 1865, by the Alabama constitutional convention, then assembled, which provided that "in computing the time necessary to create the bar of the statutes of limitation and non-claim, the time elapsing between the eleventh of January, 1861, and the passage of this ordinance shall not be estimated;" and it is insisted that, after deducting the period mentioned, the defense of the staleness of the plaintiff's claim is not sustained. The authorities already cited are an answer to this contention. But it has been expressly held by the supreme court of Alabama that the time during which the statutes of limitation were suspended by the ordinance above mentioned is not to be deducted from the period of 20 years, the lapse of which raises the presumption of payment and satisfaction, and creates a positive bar, unless within that period there has been some recognition of the liability which it is sought to enforce. Harrison v. Heflin; McCarthy v. McCarthy, ubi supra. No such recognition is averred.

The plaintiff's case appears, therefore, upon the face of his bill, to be stale and unworthy the favor of a court of equity.

Decree affirmed.

V.58-75

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(115 U. S. 122)

COMMISSIONERS OF BUNCOMBE Co. and others v. TOMMEY and others, Trus

tees, etc.
(May 4, 1885.)

LIENS ON RAILROAD-CONSTRUCTION OF ACT OF LEGISLATURE OF NORTH CAROLINA of 1870. It was not purposed by the act of 1870 of the legislature of North Carolina to give a lien upon the property of a railroad corporation for work performed or materials provided in and about the construction of its road or of its bridges constituting a portion of its line.

Appeal from the Circuit Court of the United States for the Western District of North Carolina. On a petition for rehearing. See S. C., ante, 626. HARLAN, J. In the opinion in this case it was stated that in North Carolina, as in most, if not in all, the states, railroads, although constructed by private persons or corporations for their own emolument, are highways, established under the authority of law, primarily for the benefit of the public. For that reason, in the absence of an express statutory declaration to the contrary, we were not willing to presume that the legislature of that state intended to subject railroads within her limits, and established by her authority, to the operation of ordinary lien laws; for such a construction of her statutes would enable creditors to enforce their liens upon distinct portions of a railroad, and thereby easily destroy a highway and defeat the important public objects intended to be subserved by its construction. The petition for rehearing suggests that the court is in error as to the policy of the state with reference to the seizure of railroad property by execution or other process, and we are referred, upon this point, to State v. Rives, 5 Ired. Law, 297, and Gooch v. McGee, 83 N. C. 59, authorities not heretofore cited by counsel.

In the first of these cases it was decided that, under the law of North Carolina as it then was, the writ of fieri facias lay against the land on which a railroad is laid out. In support of that view reference was made to an act passed in 1820. But, from the decision in Gooch v. McGee, determined in 1880, it is apparent that the court was not satisfied with the correctness of that decision; for it said that, "so far as the opinion, except by force of the statute, extends the liability to the estates of corporations for public purposes, indispensable to the exercise of the conferred franchise and to the performance of correlative duties, it is not in harmony with adjudications elsewhere of the highest authority, and we are not disposed to enlarge the sphere of its authority." After citing several adjudged cases, including Gue v. Tide-water Canal Co. 24 How. 257, the court proceeds: "In our researches we have met with a single case (Arthur v. Bank, 9 Smedes & M. 394) recognizing the authority and approving the decision in State v. Rives, and in opposition to the current of judicial opinion. The general words of the statute, which to some extent influenced that decision, may, without violence to their meaning, admit of a narrower scope, and be restricted to the property of private corporations, and to that of public corporations which may be replaced, and is not indispensable to the exercise of their necessary functions, and the discharge of public duties, upon the distinction taken in the cases cited." It is difficult to resist the conclusion that the supreme court of North Carolina intended, by their opinion in Gooch v. McGee, to intimate that State v. Rives was wrongly decided, even with reference to the statutes in force when (1844) the latter case was determined.

It is suggested that section 9, c. 26, of the Revised Code of North Carolina, adopted in 1855, indicated a public policy in that state in harmony with the decision in State v. Rives; for it is claimed by that section the franchises and property of railroad corporations having the right to receive fare or tolls may be taken on execution. Upon this point it is sufficient to say that we are not satisfied that the statutory provision referred to, as being a part of the Code of 1855, was in force after Battle's Revisal was adopted. By express

enactment, "all acts and parts of acts passed before" the session of the legislature which directed the publication of Battle's Revisal, "the subjects whereof are digested and compiled" in that revisal, or which were "repugnant to the provisions thereof," were declared to be repealed and of no force or effect from and after the first of January next thereafter, with certain exceptions and limitations, not embracing the present case. Battle's Revisal, 861. Independent, however, of this question, and even if section 9, c. 26, of the Code of 1855, be in force, we adhere to the opinion that there was no purpose, by the act of 1870, to give a lien upon the property of a railroad corporation for work performed or materials furnished in and about the construction of its road, or of its bridges constituting a part of its line.

In the original opinion we were in error in supposing that the act of 1873 was passed at a session previous to that at which the act was passed approving Battle's Revisal, and directing its publication under the supervision of the compiler. Both acts, it seems, were passed at the same session. The incorporation of the act of 1873 into that part of the Revisal which related to private corporations was, therefore, the work of Mr. Battle and not in pursuance of any previous express direction by the legislature. Making this correction in the statement of a fact to which we attached but little weight in our interpretation of the act of 1873, we perceive no sufficient ground for extending its provisions to the property of corporations operating a public highway. The rehearing is denied.

(115 U. S. 137)

MAYFIELD v. RICHARDS and others.

(May 4, 1885.)

LIMITATIONS IN SECEDED STATES-ACT OF JUNE 11, 1864.

Act of congress of June 11, 1864, entitled “An act in relation to the limitations of actions in certain cases (13 St. 123) applies to cases in the courts of the states, as well as in federal courts, and as thus construed the act is constitutional.

In Error to the Supreme Court of the State of Louisiana.

The facts shown by the record were as follows:

On March 30, 1860, Walter O. Winn, of the parish of Rapides, in the state of Louisiana, made and delivered to the firm of Rotchford, Brown & Co., of the city of New Orleans, his nine promissory notes, each for the payment to their order of $5,000, four of which were to become due and payable on November 10, 1860, and five on December 10, 1860. Winn died in 1861, leaving a last will, which was afterwards duly proven, by which he made his wife, Mary E. Winn, his universal heir and legatee and executrix. As such she took possession of the estate. The nine notes payable to the order of Rotchford, Brown & Co. were presented to Mrs. Winn, as executrix, for her acknowledgment thereof as a debt against the succession of Winn, and she indorsed on each of them such acknowledgment, with a promise to pay the same in due course of administration. These indorsements all bore date November 1, 1865. Mrs. Winn continued in the office of executrix until September 30, 1873, when, by the order of the district court for the parish of Rapides, she was "destituted"-that is to say, removed-"from said executorship of the estate of Winn," and J. M. Wells, Jr., appointed dative testamentary executor of said succession.

*On July 5, 1880, Wells, as such executor, filed a provisional account of his administration in the district court for the parish of Rapides, which had probate jurisdiction. In his account he recognized the nine notes above mentioned, payable to the order of Rotchford, Brown & Co., which, in January, 1866, had been transferred by the payees to the appellant, John S. Mayfield, as valid claims against the succession, and proposed to apply the assets in his hands to their payment. Mrs. Winn, under the name of Mary E. Richards,

*139

-she having intermarried with A. Keene Richards,-filed, with the authorization of her said husband, on January 11, 1881, her opposition to the allowance and payment of the notes, and stated her ground of opposition as follows: "The notes are prescribed, and were prescribed at the date they were accepted by the executrix; the date of acceptance being written on the back of the notes long before they were accepted by the executrix, and accepted in error."

One John D. Du Bose, a creditor of the succession, also opposed the recognition and payment of the notes, because “said nine notes were all prescribed long before they were pretended to be acknowledged by the executrix, Mrs. Mary E. Winn, and the acknowledgment was made by her in the city of New Orleans, Louisiana, in January or February, 1866, and not on the first day of November, 1865, as it purports." There was no charge, and no attempt to prove that the antedating of the acknowledgment of the executrix had been fraudulently procured; and if the notes were not prescribed until long after January, 1866, as contended by Mayfield, there was no motive to antedate the acknowledgment, and nothing to be gained by so doing. The contention that these notes were prescribed was based on article 3540 of the Civil Code of Louisiana, which declares that "notes payable to order or bearer * ** are prescribed by five years, reckoning from the day when the engagements were payable." Mayfield contended that the notes had been admitted as valid debts against the succession of Winn by the executrix, on November 1, 1865, as appeared by her indorsement thereon, and, as such indorsement was made before the expiration of five years after the maturity of the notes, it was effectual to suspend prescription, and the notes were therefore not prescribed. Upon the opposition of Mrs. Winn and Du Bose the question whether the nine notes were prescribed was tried by the judge of the district court in which the opposition was filed. He admitted evidence to show, and upon it decided, that the acknowledgment of Mrs. Winn, as executrix, indorsed upon the notes, and purporting to be dated November 1, 1865, was not in fact made on that day, but some time between the first and tenth days of January, 1866. As this was more than five years after the maturity of the notes, it was not competent for the executrix to acknowledge them, and they were apparently barred by the prescription of five years provided by the law of the

state.

** * *

But the appellant, Mayfield, contended that the notes were saved from the prescription of five years by the act of congress of June 11, 1864, (13 St. 123,) entitled "An act in relation to the limitation of actions in certain cases, which provided that "whenever during the existence of the present rebellion any action, civil or criminal, shall accrue against any person who, by reason of resistance to the execution of the laws of the United States, or the interruption of the ordinary course of judicial proceedings, cannot be served with process, the time during which such person shall so be beyond the reach of legal process shall not be deemed or taken as any part of the time limited by law for the commencement of such action." To bring the notes in controversy within the terms of this statute, Mayfield offered to the district court evidence tending to show that Rotchford, Brown & Co., the payees, were domiciled in the city of New Orleans, and were doing business there when the city was taken by the federal forces in 1862, and that Shepherd Brown, one of the members of the firm, was in the city in 1864, and that Mayfield, the appellant, was also a resident of New Orleans. He also introduced testimony tending to show that the United States had no jurisdiction over the parish of Rapides during the war, except a military one, and that such military jurisdiction lasted for but a short time; that the federal troops came to Alexandria, the county seat of Rapides parish, about March 17, 1864, and remained in possession thereof until about May 15th, when they departed; that before leaving they burned the town of Alexandria, including the court