The land upon which the plaintiff seeks to establish a trust in her favor was in 1806 the property of her mother, Mrs. Clark, subject to an estate for life in Mrs. Ruth Mackay. Mrs. Clark’s title was derived from her father and brother; and her husband, the plaintiff’s father, had no interest in the estate. In contemplation of a second marriage, she made to her brother the deed of trust of July 18, 1811, which is the foundation of the plaintiff’s claim. That deed recited, as the grantor’s object and purpose, “ so to dispose of my property as that I may secure to myself maintenance, and to place it in such a situation that my daughter, Emily Clark, may not be deprived of such share and portion of my estate as I have received from the estate of my late husband, her father; ” and “ confiding in the affection, honor and integrity ” of the grantee, conveyed to him all her real and *521personal estate, “ trusting in the just and proper application of all the income and profits of my said property, either to relieve my necessities, or to the use and benefit of my said daughter.”
Assuming that this instrument created a technical trust, it is obvious that it was very inartificial, and such as to present difficulties of construction. Whether the trustee took an estate in fee, or for his own life, or for the life of the grantor, or for her married life, or the joint lives of herself and her daughter; whether the principal or only the income of the property put in trust was made subject to the trust; whether in construing the word “ necessities ” it should be held to have the same force and effect as the word “ maintenance,” and whether either, under the circumstances of the case, might not be taken to include something more than a supply of the merest physical wants, and even extend to any proper uses of money by a person in Mrs. Clark’s condition in life; -and finally, whether the trust for the daughter would include more than the property which came from her father, and whether, therefore, it would include the land now in controversy ; are all questions which, upon the language of the deed, admit of discussion, and some of them would deserve the serious consideration of the court, if the decision of the case depended on them.
But the statute of limitations furnishes a complete and decisive bar to the suit. The plaintiff became of age in May, 1825.. She was married in 1829, and became a widow in 1832. For thirty-four years before the filing of the bill, she had been under-no disability to ascertain and vindicate her rights. The life estate of Mrs. Ruth Mackay terminated in 1832. John Mackay^ the original trustee, conveyed the estate to Ruth Mackay, to be held by her upon the same trusts on which he had held it in 1818; and Ruth Mackay reconveyed to Mrs. Flagg, (formerly Mrs. Clark,) in 1823, by a deed which recited that the grantee was “ desirous of holding said estate in the same way and manner she held the same before the conveyance by her.” Mrs. Flagg took her title, of course, with full notice of the trust, whatever it was; and the deed from Ruth Mackay was merely a quitclaim. But the recital showed the intention to put the *522estate into her hands to be held in the same manner as it was held before the trust was created.
When, therefore, in 1824, Mrs. Flagg and her husband joined in the conveyance of the land now in question to Andrew J. Allen, by a deed with full covenants of warranty, and for a full consideration, and he proceeded to enter upon and hold the same without any claim by or on behalf of any person against him, and continued in the undisputed sole possession and enjoyment thereof till his death in 1864, applying the rents and income to his own use, we think it very clear that his title and possession were adverse to both trustee and cestui que trust. From the death of Ruth Mackay in 1832, the right of the plaintiff was as complete as it is now, or has been at any time intervening. She became a widow in that year, and no disability has existed since. It is agreed as tí fact that she had no actual knowledge of the creation or existence of a trust in her favor. But while this would be an answer to a defence based upon loches or acquiescence merely, we cannot find in it a sufficient objection to the operation of the limitation. The deed which created the trust was upon record, and she had the means of ascertaining her rights under it by the use of due diligence. She now claims under that recorded deed, and the registry gave her the same notice that it gave to Mr. Allen. If she seeks to charge him as trustee because he purchased the estate with notice of the trust, the constructive notice was the same to all who claim under the same instrument.
The rule is stated generally in the text-books, and is found in many adjudged cases, that no lapse of time is a bar to a direct-trust ; and it is undoubtedly true, if taken with the proper qualifications. The possession of the trustee not being adverse to the cestui que trust, as between them there is no limitation of time, unless there is a clear repudiation of the trust, brought home to the party so as to require him to act as upon a clearly asserted adverse title. Baker v. Whiting, 3 Sumner, 486. Kane v. Bloodgood, 7 Johns. Ch. 90. But where the trustee sells the bust estate to a purchaser for value, with warranty, and without any intimation, in the deed of conveyance, of a subsisting trust *523and the vendee enters and occupies the estate, doing no act which recognizes in any manner the existence of the trust; and there is no fraud or concealment; and the cestui que trust is under no disability ; the possession must be regarded as adverse both to the trustee and the cestui que trust; and the time which would bar the legal right is equally effectual to bar the equitable right. 2 Sugden on Vend. 610. Attorney General v. Proprietors of Federal Street Meeting-House, 3 Gray, 1.
Bills dismissed with costs.