From the proofs taken in the cause, it satisfactorily appeared that the plaintiffs were the heirs at law of John Edwards, who had been a noncommissioned officer in the North Carolina line; that he was entitled *Page 252 to one thousand acres of land, and that he died in 1817 without ever having obtained his warrant; therefore that the defendants did suggest that he had died without heirs, and obtained the warrant for their own benefit on 5 September, 1821, and assigned the same, without notice of the plaintiff's claim, to Thomas Henderson on 11 October of the same year. The bill was filed in March, 1831. Two of the plaintiffs were stated and proved to befemes covert; but at what time they married or whether, at the date of the warrant or of the assignment thereof, they were covert, and had so continued, was neither stated in the pleadings nor shown by the proofs. The plaintiffs seek to make the defendants their trustees by operation of law and by a decree of this Court. The defendants rely upon the statute of limitations, nearly ten years having elapsed since they obtained the warrant and assigned it to the time of filing the bill. As respects trusts, the distinction in equity is, that if the trust be constituted by act of the parties, the possession of the trustee is the possession of the cestui quetrust, and no length of possession as such will bar; but if a party is to be constituted a trustee by the decree of a court of Equity, founded (327) on fraud or the like, his possession is then considered adverse, and the statute of limitations will run and be a bar. Hovenden v.Lord Annesley, 2 Sch. Lef., 633; Cholmondely v. Clinton, 1 Tur. Russ. Rep., 118, 119; 1 Chit. Prac., 759. As to the plaintiffs who werefemes covert at the filing of the bill, but who are not shown to have beencovert when the defendants obtained the warrant and made the assignment, the rule is, that when issue is taken on the plea of the statute of limitations, that the cause of action did accrue within a certain time, the burden of proof lies on the plaintiff, and he must prove a cause of action within the limit. Hurst v. Parker, 1 Bar. Ald. 92; 2 Stark. Ev., 888. When it is incumbent on a plaintiff to prove that he labored under a disability, which exempts him from the operation of the statute of limitations, he must show that it was a continuing disability from the first, for it seems to be a general rule that where such a statute has once began to run, no subsequent disability will restrain its progress. 2 Stark. Ev., 901; 4 Term Rep., 309; 1 Stra., 566. The cause of action in this case arose in the year 1821; the bill was filed ten years after, viz., in the year 1831, at which latter period two of the plaintiffs were femes covert; but that they were so in the year 1821 there *Page 253 is no proof produced by the plaintiffs, on whom the onus lies; the statute of limitations therefore bars the claims of each and all the plaintiffs and the bill must be dismissed, but without costs.
PER CURIAM. Bill dismissed.
Cited: Christmas v. Mitchell, 38 N.C. 548; Thompson v. Thompson,46 N.C. 434; Taylor v. Dawson, 56 N.C. 91; Barnett v. Woods,58 N.C. 433; McKethan v. Murchison, 73 N.C. 435; Peacock v. Harris,85 N.C. 151; Hodges v. Council, 86 N.C. 183; Comrs. v. Lash,89 N.C. 168; University v. Bank, 96 N.C. 287; Holden v. Purefoy,108 N.C. 168.
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