There is no evidence in this case showing how the three Sedgwicks, who gave the conveyance to Mrs. Spoor in 1814, were connected with Theodore Sedgwick, sen. who made the contract. But as their agent received the money on that contract, and executed the deed as their attorney, it may be fairly inferred that they had acquired tlie interest of T. Sedgwick, sen. in the land, as his grantees, devisees, or heirs; and were willing to ratify the contract, although they probably were not bound to do so, under its provisions. I think, therefore, that if the contract had actually been fulfilled for the benefit of the children,, by a payment out of their funds, or by a donation from their mother for their use, they would, in equity, have been entitled to the lot; if they had asserted their claim within a reasonable time, and had not in fact received an equivalent therefor. But as their mother conveyed the property to Wells for a full consideration, with covenants of warranty and seisin, if they had no equitable claim as against the mother, it would be inequitable and unjust to permit them to recover the land from the defendant; and thus charge her with the value thereof through her covenants to the defendant.
Taking the facts as they appear, it is very evident that the mother has really paid the whole consideration for the land, either directly or indirectly; and that the complainants have no equitable claim against her on account of the sale thereof. As she has conveyed with warranty, and has received the proceeds of the land, and has invested a portion of the proceeds in *202other lands, for the benefit of two of her children, she and the lands conveyed to them should be first charged, before resort is had to the lands in possession of the defendant., to satisfy any claim the complainants may have on account of the Sedgwick contract. For the interest of the children in the 40 acre lot was a mere equitable right.
The father, it is true, left a very small personal property, some part of the proceeds of which may have been applied on the contract; but the whole could not have exceeded $125, after paying the small debts and satisfying the claim of the estate of his father-in-law on account of the oxen. And the expense of supporting the three children until they were old enough to earn their livelihood, undoubtedly must have far exceeded that amount and their proportion of the use of the land. The annual value of the land, according to the testimony, exclusive of taxes, &c. could not have exceeded $20. I am satisfied, therefore, that if an account had been taken between Mrs. Spoor and her children, in January, 1821, charging her with the value of the land and the fair rent thereof from the death of her husband, and crediting her with the purchase money of the 30 acres, which she bought with the proceeds of the 40 acre lot, and what she had paid out of her own money and earnings on the Sedgwick contract, there must have been a very considerable balance equitably due to her.
If the children had asserted their claims to this land, therefore, when they first became of age, although they might have had a technical right to an adjustment of their claim upon surrendering the 30 acre lot and accounting for their support and maintenance during their tender years, their right to relief would have been merely nominal. But as one of them had waited about fourteen or fifteen years, after he was of age and in a situation to assert his right, and the others had delayed asserting their claims from nine to twelve years after they were of age, and until their mother had probably become irresponsible, I think the vice chancellor was right in- dismissing the bill on account of the staleness of the claim. Had they brought the suit and recovered the land from the defendant while the *203last husband was living, the defendant would have recovered back the consideration of the land with interest and the costs of his defence in a suit against him and his wife. Indeed, if the statute of limitations had been insisted on, in relation to the claim made by this bill in behalf of the daughter of A. Spoor, it is clear that her claim would have been barred by the provisions of the revised statutes. For this being a claim of equitable cognizance merely, the remedy was barred at the expiration of ten years after the revised statutes went into effect; as to Abraham Spoor who was then of age and under no legal disability. And I believe all this appears upon the face of the bill. The old statute of limitations is only applicable to rights of action accrued previous to the first of January, 1830, where there is concurrent jurisdiction at law and in equity. But where the court of equity has exclusive jurisdiction, the provisions of the revised statutes, relative to the time for commencing suits in equity which are not cognizable at law, apply. When no legal disability exists, the suit must be brought within ten years after the right to sue occurs, where the proceeding is to enforce a trust not cognizable in the courts of common law. (2 JR. S. 301, § 52.) And where the right to sue existed previous to the time when the revised statutes went into operation, the suit, to enforce the performance of the trust, must be brought before the first of January, 1840, or the right is gone; unless the complainant was under some legal disability during the ten years, or some part of that time.
The decree appealed from in this case must be affirired, with costs.