APPEAL from a decree of the Escambia county circuit court. The opinion states the case.

B. D. Wright, for the appellant.

W. Anderson, contra.

By Court, BALTZELL, J. This is a suit in chancery by the complainant, Strong, alleging indebtedness of the late Alexander J. Dallas, to an amount of nearly six thousand dollars, through a contract made in the summer of 1838, for the erection and finishing a dwelling-house on lot 276, in the city of Pensacola. The bill alleges that in December of that year, a deed of trust was executed by the said Dallas in behalf of his wife and children, whereby the said lot and building and property were conveyed to complainant and the defendant, Willis, as trustees for the use and benefit of the said wife and children. Complainant alleges that "he became a party to the deed of trust by accepting the trust, but with no intention on his part to surrender any legal or equitable right which he might have to enforce against the property of the said Dallas, the payment of his debt above mentioned, and set forth," and he asks for a sale of the trust property. The defendants demur to the bill, and raise the simple question whether it is competent for a party, after having by his signature, accepted the trusts of a deed, thus to complain of it as fraudulent. It is purely a question of law, and to be decided as if the facts presented by the bill had been admitted by the answer. The office of trustee, his duty, rights, powers, and obligations are now well ascertained and understood (having been declared by the courts in such terms) as to create an exclusive branch of equity jurisprudence. Amongst the rules established, we recognize the following: "The trustee holds the estate for the cestui que trust, and to effect the purposes and objects declared by the deed." He can not renounce, after acceptance, but must execute its provisions. He is bound to convey, at the direction of his cestui que trust, and may be compelled by suit to fulfill any particular act of duty. If the estate is assailed, his duty is to protect it—he may be enjoined from committing a breach of trust, and his laches or tort shall not affect the cestui que trust. Bearing in mind, then, these principles, let us examine the trust deed in the case under consideration, to ascertain the duties imposed and the trusts and covenants assumed by the trustees, and to see how far the individual right of one of them, as presented by this bill, may be consistent with them. The deed is in the usual form, and as a copy of it will be given by

the reporter, we refer only to the material parts of it. The conveyance is declared to be in "trust for the sole and separate use, benefit, and behoof of the sole and separate use of the wife and children, free and exempt from the debts, contracts, and incumbrances of the said Alexander J. Dallas, free from any control, right, title, interest, or property of the said Dallas," and provides that the rents and profits of the lands, etc., shall be appropriated to the support and maintenance of the said wife and children." This, undoubtedly, is an express declaration on the part of Willis and Strong, the trustees signing the deed, that the property shall not be disposed of to pay the debts of the grantor, amongst which clearly would be embraced debts due to the trustees as well as to any one else. The property is not only to be subject to the debts of Dallas, the grantor, but the trustees engage that it shall be appropriated to the support of the family. If assailed by a stranger, the duty of such trustee would be to defend and protect the property, and he would be compelled to do so.

Does he occupy a more favorable position as far as his own rights are concerned? Can he, who has undertaken by his solemn act to defend this property, and carry into effect its objects and purposes of express and specific character, be permitted himself to turn round, repudiate the trust, and defeat and destroy it?

If the design of complainant was, as he states it to have been in his bill, not to surrender any equitable or legal right which he might have to the property, he should have insisted upon a declaration to that effect in the deed, and his neglect to do so should be regarded as a waiver on his part. The deed is equivalent to a covenant or agreement on his part that the property should be free from his own debt, as it undertakes to defend it generally against the debts, contracts, and incumbrances of the grantor. Not a case has been exhibited to us in which a trustee has been permitted in a court of equity to occupy such an anomalous position; and to allow it would be to assume a position directly in opposition to all the leading and governing principles and rules upon which this branch of equity has been constructed. This would, indeed, be giving judicial sanction to such a design.

One of the rules alluded to above is, that, in attempting an injury to the trust property, the trustee acts without warrant, and in breach of his duty. What more serious injury-what more intolerable breach of trust, than to assert a right in the

trust property for his own individual purposes-to ask that property, which, by his own act, has been confided to his care, to guard and protect for the wife and children of the grantor, shall be sold and appropriated to his own use?

Another principle, common to this as well as to every other branch of the law, is, that a man should not be permitted to allege his own fraud. If decedent was in debt, so as to make this deed a fraud as to creditors, complainant did wrong in aiding and sanctioning the act. It can not be regarded as a fraud as to himself-for by his free act, his solemn deed, he has consented, as he had a full right to do, that the property should not be subject to his debts, but that he would look to other means for payment. The case of a purchaser, for a valuable consideration, with notice of a prior fraudulent sale, is not that of complainant. As to him, such sale is in law a nullity, as if it never had been made. It is not a matter to which he is committed, and with which he had any connection or concern. It would be different, if such a purchaser had been pledged by solemn deed to sustain the very claim which he was asking leave of the court to assail.

It may be a case of hardship for the complainant; but it is not the province of the courts nor of the law to compensate the deficiencies of parties, or repair the consequences attending their neglect or inattention. If we mistake not, a law of the state. provides a lien to mechanics, which might have been available to complainant-or he might, before undertaking the work, have required security-or, by declining the office of trustee, he might have occupied the position of a creditor, so as to assert the defects or fraud in a deed or deeds made to his prejudice or injury; but he can not be both trustee and assailant of the trust deed; he can not be both maintainer and holder of the legal title, und the asserter of its invalidity. For these reasons, we think the decree of the court below must be affirmed, with costs.

FRAUDULENT OR VOLUNTARY CONVEYANCE IS BINDING UPON THE PARTIES ro IT: Meux v. Anthony, ante, 274, and note; Britt v. Aylett, ante, 282.

UNION BANK v. POWELL'S HEIRS.

[3 FLORIDA, 175.]

IN SCIRE FACIAS TO REVIVE JUDGMENT AGAINST EXECUTOR, brought more than five years after the death of the decedent, it is necessary that the plaintiff should show by his declaration that some proceedings have been had on the judgment within five years, and that those proceedings have

been unavailing, at least in part, in order to prevent the bar of the statute; and it is not requisite that the defendant, in a plea of the statute of limitations, state that no proceedings had been had upon the judgment within five years.

MATTER WHICH COMES MORE PROPERLY FROM PLAINTIFF need not be stated in the plea.

LANDS AND TENEMENTS ARE SUBJECT TO PAYMENT OF DEBTS, and are liable to be taken in execution and sold in this state.

FORTY-FIFTH CHAPTER OF 13 EDWARD I., GIVING WRIT OF SCIRE FACIAS, is in force here by virtue of the provisions of the act of November 6, 1829, which adopts the common and statute laws of England which are of a general and not a local nature, with certain exceptions and provisos. JUDGMENT LIEN CONTINUES, NOTWITHSTANDING DEATH OF DEBTOR, but may be lost by laches.

IN CASE THERE SHOULD BE FAILURE OF PERSONAL ASSETS, it is the duty of the executor or administrator to make application for the sale of the decedent's realty in the mode pointed out by the act of March 4, 1841. EXECUTORS SHOULD BE MADE PARTIES IN SCIRE FACIAS TO REVIVE JUDGMENT against the heirs and terre-tenants of the decedent; whether the heirs and terre-tenants should be made parties or not is questionable, but the joining of them is regular.

Upon Demurrer, Court will Give Judgment for the party who, on the whole case, appears to be entitled to it, and against the party who com. mitted the first error.

SCIRE FACIAS upon a judgment. The opinion states the case. R. S. Hayward and L. A. Thompson, for the plaintiff in error M. A. Long, contra.

By Court, DOUGLAS, C. J. This is a proceeding by scire facias issued out of the circuit court of Leon county against the heirs and terre-tenants of Jeremiah Powell, deceased, upon a judgment obtained by the plaintiff in the superior court of Leon county at its November term, A. D. 1838, against John Westcott, jun., George W. Fletcher, William S. Paulin, James D. Westcott, jun., and Jeremiah Powell, for the sum of one thousand seven hundred and eighty-three dollars and fifty cents, etc. Since which time (as appears by the declaration herein filed, which is in the usual form), the said Jeremiah Powell has departed this life. The defendants put in a number of pleas to this declaration, one only of which, however, is presented for our consideration.

That plea alleges that "heretofore, to wit, on the fifteenth day of January, A. D. 1840, in the county of Leon aforesaid, Violet Powell, Nathaniel Hamlin, and John W. Adams, duly qualified as executrix and executors of the last will and testament of Jeremiah Powell, deceased, and letters testamentary were thereupon issued to the said Violet Powell, Nathaniel Hamlin, and

John W. Adams, by the judge of the county court of said county of Leon, sitting as a court of probate, and that the said scire facias was not sued out by said plaintiff within five years next after the said Violet Powell, Nathaniel Hamlin, and John W. Adams qualified as executrix and executors of the said last will and testament of the said Jeremiah Powell, as aforesaid, and this," etc.

To this plea the plaintiff filed a demurrer, to which there was a joinder, and after argument had thereon, it was considered and adjudged by the court that the said demurrer be overruled, and that the plaintiff take nothing by his bill, etc.

The first question presented for our consideration, according to the course of the argument at the hearing of this cause, is, whether this plea, as pleaded, is a bar to the action. It is urged in a printed argument (which is now before us), and which does much credit to the gentleman who prepared it, that the plea is insufficient. It is based upon the act of November 10, 1828, Thomp. Dig. 444, sec. 3, note 2, which says: "No action of debt shall be brought against any executor or administrator, or other person having charge of the estate of a testator or intestate, upon any judgment obtained against his testator or intestate, nor shall any scire facias be issued against any executor or administrator or other person having charge of the estate as aforesaid, to revive such judgment, after the expiration of five years from the qualification of such executor or administrator, or of such other person having charge of the estate, and all such judg ments, after the expiration of five years, upon which no proceeding shall have been had, shall be deemed to have been paid and discharged, saving," etc. "The plea [it is insisted] should have stated not only that five years had elapsed from the qualification of said executrix and executors to the suing out of the said scire facias, but that no proceeding had been had upon said judgment within that time."

The general rule in pleading laid down by Chitty, volume 1, page 229, is in these words: "In pleading upon statutes, where there is an exception in the enacting clause, the plaintiff must show that the defendant is not within the exception; but if there be an exception in a subsequent clause, that is matter of defense, and the other party must show it, to exempt himself from the penalty." The same principle is laid down in 5 Bac. Abr., tit. Statute L.; and Rex v. Stone, 1 East, 646, in note; Rex v. Pratten, 6 T. R. 559.

But the case at bar does not seem to come within this rule. The AM. DEC. VOL. LII-24