The defendants- demurred to the bill in this .case, upon the ground that there was' no equity in the bill; that the complainants had' a full and adequate remedy at law, and that, as appeared from the bill, they were barred by the statute of limitations. The court sustained the demurrer, and dismissed the bill; and this is excepted to and error assigned thereon;
1. There are several questions which arise out of this record. The first question made is, that the court had no jurisdiction of the subject-matter of the bill. The subject-matter of the bill filed by the wife was, to set up her equity to this property coming to her from her father’s estate before it had been reduced to possession by her.
While it was formerly a matter of much doubt, yet it is now well-settled that a court of equity, and no other court, has jurisdiction of this subject-matter. It is peculiarly a matter of equity jurisdiction. This is well stated by Mr. Story, in 2 Story’s Equity Jurisprudence, §1414. We think, therefore, as to the subject-matter of the bill, that the superior court of Washington county had jurisdiction.
2. The next question is, that there was no jurisdiction in the court to provide for the children of Mary Eliza Salter, they not being parties to this bill. There was no necessity for the children to be made parties to the bill. As soon as the bill is filed by the wife to set up her equity, the rights of the children attach immediately; and the court will make a provision for them, except where the wife dissents or objects thereto. She may defeat any provision for the children by objecting, and if she makes no *183objection, the court decrees a provision not only for her, but a provision for the children, upon the assumption that she consents thereto. This doctrine is recognized in Ü Story’s Equity Jurisprudencej section 1417; and numerous authorities are cited under that section, to sustain the proposition.
3. The next proposition is, that the husband, not being a party to the bill, the court could not set up the wife’s equity. We think the husband was a necessary party to this bill to come into court and make a provision for his wife, or a settlement on her; and if it was a proper settlement, the court would refuse to set up her equity, and would take the settlement. This is a well-recognized principle in equity. He is to be affected by the bill, and is a necessary party; the bill was filed to prevent his marital rights from attaching; and unless he was a party to the bill, that decree could not affect him.
4. The next question is, are the creditors who were made parties to. this bill bound by the decree if the husband' was not mado a party to the bill ? We think they were. They were parties to the bill, and were bound by that decree, just so'long as it remained unreversed and'not set aside in the proper way. All who were parties to the bill were bound by the decree. That is why they are made parties — to bind them.
5. The next question is as to whether this decree would bind the creditor whose guardian was a party to the bill individually, but not as a guardian for the infant creditor, such infant not being a party? We are of the opinion that the infant creditor of John F. Salter, the husband, (Nathan J. Botts, whose guardian,. Bennett Wamble, was a party individually to this bill because he ivas also a creditor of J. F. Salter, the husband,) is not bound by this decree. The guardian was not made a party as guardian-The infant was not made a party to the bill! Under the allegations in this bill, this- guardian represented the infant as to the latter’s rights against a former guardian j *184and judgment was obtained for $5,000 afterwards, on account of the devastavit committed by J. F. Salter, the husband, for this infant. We think this infant is not bound by the decree, and therefore, that the judgment in favor of the infant against J. F. Salter is in no way affected by the decree.
6. It is insisted by the plaintiff in error that William G. Salter, who, as the next friend of Mrs. Salter, preferred this bill to set up her equity, and was decreed by the court to be a trustee, with the title vested in him as trustee for the wife and her children, never accepted this trust, and never did any act afterwards showing that he had accepted it. But it is nowhere alleged that he ever renounced'the trust. The question is .now, did he accept this trust, under .the facts alleged in this bill? We are of the opinion that he did. He procured this decree to be made. It was made at his instance; and we think that that fact makes him a trustee; that was an acceptance of the trust by him.,. And if there was no renunciation of the trust by him, he still continued as trustee for these children; and if he failed to act' when he ought to have acted, he is liable to the children for his non-action.
7. So the question arises here, were these children barred when they brought this suit against these purchasers at the sale under the execution in favor of Wamble, the guardian of Nathan J. Botts, the minor. Whether these purchasers got a good title or not, under the facts I have stated, and whether they remained in possession of the land, as shown, at the time they filed this bill, they remained on it over the statutory period. They remained in possession some ten or eleven years. And if this trustee could have sued and recovered this land, the legal title being in him, and failed to sue, he would have been barred from bringing any other action to recover, after the lapse of the statutory period. He could not sue and regain the land if he let the statute bar it. And if he could have sued and recovered it, had he brought his action within the proper *185time, we think the children, would have been barred of any right themselves to bring their action. But in this case something else appears.
It appears that before this decree was rendered in 1869, setting up the wife’s equity, John E. Salter, the husband, in 1868, appeared, at the time this land was divided in kind, and drew his wife’s share of the land for her next friend, William G-. Salter; and it was so returned to the court of ordinary.
It is further alleged in the bill that this property came from her father’s estate; that she had never had possession of it, and neither had her husband; that he recognized this property to be hers, as her separate property; and afterwards, while he was not a party to this bill, the decree was rendered making a provision for the wile and settling upon a trustee for her and her children this property, he consenting thereto, being present and making no objection. He could have mado this settlement himself on his wife. He had a right to do it. A court of equity will 'set up a post-nuptial settlement made by the husband upon the wife, against creditors.
This decree was rendered, putting the title in the trustee for the wife and children. They went into possession of the property under this decree, which wo hold to be good color of title; and remained in possession of it for more than seven years before the sale under the execution obtained by Wamble, as guardian of Botts, was ever levied upon this land. They therefore had the title to this land. This was a complete title in them — a title by prescription. They claimed it as their own. The husband recognized it as the separate estate of the wife all the time. And this trustee, if he had brought his action within seven years after this sale occured, against these purchasers, could, under these facts, have unquestionably, in our opinion, recovered possession of the land.
8. There is but one other question to be disposed of. He, having failed to bring his action, is barred; and if he *186is barred, the children are barred. But the bill alleges that these purchasers knew all about this title in the complainants at the time they made the purchase. The code says that possession of property, to be the foundation of prescription, must not have originated in fraud. If they knew that this title was not in the defendant in execution, John F. Salter, and that the land was not subject to the execution, but that the title was really in the children, that, in our opinion, would amount to such a fraud as is contemplated by the code. We think that the fraud -mentioned there means positive fraud — actual fraud, not constructive or legal fraud. It must be sucli a fraud as affects the conscience. If they had reason to believe, and did'be-' lieve, that the property was subject to the execution, although they might have known of the claim set up by the complainants in this bill, then that, in our opinion, would not amount to positive fraud. It would be merely a constructive fraud.
But this is a question for the jury to determine under the facts of this case. The j ury must determine for themselves whether this was such a fraud as we have stated, i. e. a positive fraud. If they knew that the title was not in the father, but was in the children, and' was not subject to the judgment against the father for the debt of the latter, and the jury could say from all the facts and circumstances whether it was a positive fraud, such a fraud as affected their consciences, then they could take nothing by this prescription; and the jury would be authorized to find for the complainant this property sued for in the bill. We think, therefore, under these facts, as stated, that here was a question for the jury; and the court ought not to have sustained this demurrer and dismissed the bill.
But we find one diMculty here'. This trustee is not a party in this case. They proceeded upon tho assumption that he had never accepted the trust; that he had never done any act as trustee, and therefore was not trustee. We think that he was. We think, though, and so direct, *187that this bill should be amended so as to make the trustee a party complainant thereto; and that the case should go back and be tried on the question as to whether these pur. chasers, at the time they made the purchase, were, on account of their knowledge, and in view of all the facts and circumstances connected with the transaction, guilty of such a fraud as stated. All this should be left to the jury to determine. So we reverse the decree of the court below dismissing this bill, with the direction stated, viz. that this trustee be made a party.
Judgment reversed’.