after stating the facts, proceeded: Such a trust as Freeman had in the property was not subject to be sold under an execution, by virtue of the act of 1812. That act operates, as a legislative conveyance of the legal estate to him who purchases the use ; for it declares that the purchaser shall hold and enjoy the property by force and virtue of the execution, freed and discharged from the legal title of the trustee ; Who was before the sale possessed in trust, for the defendant in the execution, The legislature meant to subject those trusts to sale under execution, of which the cestui que trust might, in a court of equity, have enforced a conveyance of the legal estate from the trustee to himself. The act embraces only such trust estates as are co-exteusive with the legal estate held' by the trustee; so that the legislative divestment of the legal estate, from the trustee, should not operate to the injury of third persons, or any ulterior remainders in trust.
If Freeman’s life interest, in these slaves, could have been sold by execution, under the act of 1812; the legal estate would have been, by operation of the sale, and the conveyance of the sheriff, transferred, from the trus*246tees to the purchaser. There would have been left no legal estate in the trustees, to have upheld and fed the uses and trusts., contained in the ulterior limitations and remainders mentioned in the deed of settlement. These equitable remainders must have all been destroyed, for the want of a legal estate in fee, in the trustees, to have fed and supported them. The legislature did not mean that the act should work such an extensive mischief; it meant that it should operate upon plain express trusts, which trusts were co-extensive with the legal estate in the trustee. It never intended that an execution should interfere with complex trusts, or where there was a series of successive trusts, arising in a deed or will, all fed from the same legal estate. The sale of the slaves made by the sheriff' was void; Freeman’s trust estate, being only a life estate. There were by the deed of settlement, ulterior limitations of trusts, fed by the legal estate in the trustees ; therefore the execution did not reach any of the trusts, notwithstanding, the trustees, the sheriff and Ferry, all believed that the trust interest of Freeman was by law, subject to be sold ; and under that belief the sheriff did sell, and Perry with full notice of the plaintiff's title under the settlement, purchased the slaves at the sale, and took a conveyance of them from the sheriff. The trustees forbid the sale and demanded the slaves of the defendant; and he refused to deliver them, but they never brought any action at law to effect a recovery. The trustees were barred by the act of limitations, and had they brought an action of detinue for the slaves, against Ferry, after three years from the time of his purchase, they would have failed in it. The defendant Ferry, now contends that the plaintiffs have a remedy against the trustees for breach of trust in neglecting to sue him, and recovering the slaves, before bis estate in the same, was rqmned into a good title by the act of limitations.
I grant that the trustess are liable to the plaintiff, but have they not a right to elect to consider Perry as being a trustee for them under the circumstances of the case, and follow the property in his hands? The plaintiff *247 Harriet was a feme covert, until a less time than three years before the filing of this bill; ami the other plaintiffs are infants. Suppose the trustees were insolvent, must the loss fall on the plaintiffs, and Perry be permitted to hold the property, although he had express notice of the contents of the deed of settlement? If the trustees had have made a conveyance to Perry of the slaves, with notice to him of the trusts, a court of equity would have held him a trustee to perform all the trusts in the deed. Will the manner in which ho has obtained the possession of the slaves destroy the plaintiff’s rights, although the legal title of the trustees is destroyed by the acts of 1715 aiid 1820, and by operations of tiie same, their legal tiie is transferred to him? The sheriff sold the interest which Freeman had in the slaves; and although it was not subject to execution, yet the sheriff intended to pass that estate by the sale, and Perry intended to take the same, not by the way of a trespass or tort, but by a contract of purchase, having full notice at the time of the trusts.
I admit that a disseisor, abator, or intruder, or any person, who holds the estate in the post, although they have notice of a trust arising out of the estate, will not he considered by a court of equity as trustees. It is said by the counsel for Perry, that their client holds these slaves neither by privity of estate, privity of contract or by fraud. Furthermore, that the trustees, Cooke and Jeffreys, are barred of their legal title by the act of limitation, and that the defendant is answerable for tiie slaves neither at law to them, nor in equity to the plaintiffs. The sheriff when he levied on the slaves, did not intend to commit a tort. He levied under the belief, that the equitable estate of Freeman could be sold by virtue of the act of 1812. Perry purchased .under the same belief, and that the sale would by operation of law, transfer to him both the legal and equitable estate during tiie life of Freeman. Shall Perry be now heard to say that there is no privity between him and tiie original trustees? That this court cannot, consistently with its own rules, declare him a trustee, although he had notice of the ill to-*248rior trust of the settlement? I think he cannot be permitted to set up such a defence, and although the origi-£t,as£ecs are barred by the act of limitation, and can-MOt regain the legal estate, yet in consideration of the manner in which Perry obtained the slaves, viz: by contract, he must be declared and considered by this court to hold them as a trustee for the plaintiffs. The rents and profits of the estate were liable in equity to the creditors of Freeman; he might have rented the land and hired the slaves, and received the money himself, or paid his debts with it. An assignment by Freeman, during his life, to raise money to pay his creditors, would have been protected in equity, particularly where the assignee had seen to the application of the purchase-money. The purchase-money in the present case, was applied to the debts of Freeman, and I think that this court, under such an equity, set up by Ferry, would have stopped the trustees in prosecuting a suit at law against him for the recovery of the slaves. But the court would have first seen that the fund was safe and subject to be Surrendered to the trustees on the death of Freeman.— (Townsend v. Windham, 2 Ves. at p. 10. Codagan v. Kennet, Cowp. 432. Fearne on Remainders, 408, 9, 10. 13th American edition.') We cannot permit Perry to protect himself from the trust, of which he had notice, by hearing him now assert that either the sheriff, when he levied was a tort feasor, or that he himself committed a tort when he took the slaves home; and that now he is beyond the reach of this court. It may be stated as a rule in equity, that all persons coming into possession of trust property, with notice of the trust, shall be considered as trustees, and bound with respect to that special property, for the execution of the trust. (Daniels v. Davidson, 16 Ves. 249. Adair v. Shaw, 1 S. & L. 262. 2 Mad. c. 125.) I think that Perry should be considered as a trustee of the slayes mentioned in the bill, for the plaintiffs, and that he be decreed to deliver them and their issue to either of tiie parties, and account for their hires.
It is-not true that a new estate in the thing sold, is acquired by the purchaser under a fieri fiadas ; he succeeds to the interest or estate of the defendant, and to no other ; nor is the case different, where the defendant has made a fraudulent deed to another, quoad the creditor it is the debtors estate. Perry by the purchase acquired Freeman’s estate and no more, and he cannot now object that Freeman’s interest could not be sold under a fi. fia.; he is concluded from ailedging it; therefore, the claim of Perry in opposition to the trustees is a nulity, if Freeman could not support it. It is like the case of a tenant for life conveying in fee; the vendee notwithstanding his deed in fee, and his claim in fee, is still tenant for life, and the reversioner may draw upon him as his tenant, and compel him to perform the obligations of tenant for life, and although, if the conveyance be by fine or feofment, the reversioner may consider it as a forfeiture, and enter upon the cognizee or feofee, yet he may waive the forfeiture and demand the reserved services of the cog-nizee or feofee. Their confidential relations connot be assumed and put off, at pleasure. The joint act of the parties and the law created them, and they can be put an end to, only in the same way. The purchaser as to strangers succeeds to the estate of his vendor, their declarations to the contrary notwithstanding. If an action were now brought against Perry for refusing to deliver up the negroes at. the time of the sale, the statute of limitations would bar that action, for plainly it arose at the time of the refusal; but if the. trustees chose to waive it, and consider Perry as in Freeman’s place, and wait with him as long as they could wait with Freeman, that is during life, and then do as is now done by the ces-tui que trust, (_Freeman being dead,) call upon Perry to surrender the slaves, the statute is no bar, for there has been no adverse possession. The fact is, that by Freeman’s death there was no interest or estate in Perry to protect. Had lie taken the negroes tortiously, he would have acquired a tortious estate; but having acquired a limited *250one, that is during Freeman’s life and the pleasure of the trustess, it expired by Freeman’s death.
There is some* difficulty as to the jurisdiction, for the trustees have the legal estate, and should have sued Ferry immediately on Freeman’s death, but as they will not, or have not done so, and Perry as long as he holds is quasi trustee, I think this bill may on these grounds be sustained.
Per Curiam.' — Direct an account.