delivered the opinion of the Court:
The errors assigned in the petition are substantially, first, that the demurrer to rhe petition of Kelly, administrator, ought to have been sustained; and second, be*620cause the statute of limitations was a bar to any relief sought by the petition."
I propose to consider these two assignments of error together. Waiving all technical questions in the case I proceed at once to consider the main question in the cause; and that is, whether the petitioner Kelly,administrator. was barred by the statute of. limitations in this case. From the pleadings and evidence in the cause I apprehend there can be no doubt, that the legal title to the slaves, Dinah, Ira and Stuart, was by operation of law vested in the petitioner, Henry J. Kelly, as administrator of Joseph Graham, deeeased. The said petitioner, it appears, was appointed as such administrator before the commencement of the said suit of Lanty Graham and others against said Rebecca Graham and others, which, as we have seen, was commenced on the 5th day of October, 1859, more than twelve years prior to the commencement of this suit, and more than seventeen years prior to the filing of said petition, and also more than seven years before the final decision by this Court of the cause of said Lanty Graham and others against said Rebecca Graham and others.
Mr. Story in his work on Eq. Plead., § 502, among other things says: “The same rule would lie to a bill for the redemption of a mortgage, after a great length of time had elapsed, if (he bill were so framed as to present the objection without any attendant circumstances to obviate it; for in this and other like cases, courts of equity act upon the analogy of the law as to the statutes of limitation, and will not entertain a suit, if it would be barred at law. If the objection does not appear on the face of the bill, it may be taken by way of plea, or by way of answer.” Again at section 750 and 751 of same book, Mr. Story says: “ First. Pleas in bar, founded on matter, which is made a bar by statute. Pleas of this sort are, (1.) The statute of limitations, &c. This is a good bar to a suit in equity, as it is at law; and it will ordinarily bar both the claim of the debt, and the *621discovery, when the debt became due. Indeed, when the objection appears on the face of the bill, it may, as we have already seen, be taken by way of demurrer,” &c. In same book, section 756, Mr. Story says: “ In some of the foregoing cases courts of equity seem to act upon the positive injunctions of the statutes of limitations; for in a case of concurrent jurisdiction, (as in cases of account, or other debts) the statutes would seem to apply equally to courts of law and equity. But in a great variety of other cases courts of equity may correctly be said to act not so much in obedience to the law. For although in such cases suits in equity are not within the words of the statute, yet courts of equity generally adopt it as a positive rule and apply it by parity of reasoning to cases not within it.”
There is no doubt but that the said Kelly as administrator of the said Joseph Graham, deceased, could have brought his action of trover and conversion against the said Rebecca Graham at any time after she sold the said slaves, Ira and Stuart, for the value thereof, within five years after she sold them, and converted them to her own use. And he might have brought an action of de-tinue against the'said Rebecca for the detention of said slaves, before she sold and converted them to her own use, if he was appointed administrator before she converted them to her use by the sale thereof. But it does not appear in the case, whether said Kelly was appointed administrator before she sold the said slaves, or not. It does appear clearly from the pleadings and evidence in the cause, that the said Rebecca had possession of said slaves claiming them as her own as against all others^ until she sold them, and that she sold and converted them as her own property before the year 1859, and before the first suit against her hereinbefore mentioned was commenced, and it is very clear that the right of action against her by said Kelly as administrator for the value of said slaves was barred, before the second suit in equity, that is before this suit was commenced against her. *622Under these circumstances it seems clear to me, that the right of action of said Kelly as administrator of said Joseph Graham against the said Rebecca Graham was at law barred by the statute of limitations long before the commencement of this suit or the filing of said petition by the said Kelly, administrator in this cause ; and the right of action being barred at law, it must be considered and held in this case under the circumstances appearing therein, that the said Kelly, as administrator, is barred in equity from the right to recover the proceeds of the sale thereof, or the value of said slaves, against the said Rebecca or the said James Graham, her assignee. The right of said Kelly, as administrator, to recover the value of said slaves against the said Rebecca is a mere legal right; and it is, as we have seen long since, barred by the.statute of limitations, and it is barred in equity as to the proceeds of the sale thereof as against her assig-nee.
Whether the proceeds of the sale of said negroes, Ira and Stuart, in justice and equity belong to the said Rebecca, or her estate, if she is dead, as against he r assig-nee, said James, I do not now pretend to decide, as that question is not now properly before us for decision. Although the said negroes, Ira and Stuart, did not in fact belong to the said Rebecca at the death of her said husband, still she had possession of them, always after the death of her husband claiming them as her own, and sold them as her property; and, as before stated, any action at law against her for the sale and conversion of the same has been barred at law for many years, and it would be strange indeed, if said Kelly, administrator, was barred of an action at law for the value of said slaves, if he could pursue and recover the proceeds of the sale thereof in equity, either in the hands of said Rebe.cca or her assignee thereof, under such circumstances. It seems to me very clear that he cannot do so in this case. The said Rebecca cannot be considered as having had possession of said slaves as trustee, or as having sold them as *623such, but she had possession of the same, claiming them as her own, and sold them as her own property many' years ago, as we have seen. Regularly the said Rebecca or, if she be dead, her personal representative, should perhaps have been made a party defendant to said petition; but as against her assignee the said Kelly, administrator, is clearly barred by the statute of limitations. I deem it unnecessary to further remark upon that subject.
It is quite probable, from what now appeal’s, that the said Kelly, administrator, was misled and perhaps to some extent obstructed by the distributees or a large portion of them, except Rebecca, from bringing suit against the said Rebecca for said negro slaves or the value thereof by their adverse claims and different suits in relation thereto; but if this be so, it cannot prevent the statute of limitations running as against the said administrator at law in favor of said Rebecca or her as-signee, or in this case as to the proceeds of the sale thereof in equity.
The counsel for the appellees complains in his printed brief, that the court erred in overruling the exceptions of John Graham and others to the commissioner’s report, and adopted statements numbers one and three of said report. I do not consider these matters as being covered by this appeal, or as being proper now to be considered in the present state of the cause in relation thereto in the court below. The said Kelly as administrator as aforesaid had no interest whatever in the matters included in said last named exceptions. I therefore do .not now decide any thing connected with said matters of account so excepted to as aforesaid, but only decide as to the matters arising upon the petition of the said Kelly as administrator of said Joseph Graham, deceased, and said James Graham and the decrees of the court therein.
For the reasons above stated I am of opinion, that the said decrees of the 17th day of May, 1878, and the 19th day of May, 1879, in so far as they relate to and adjudi*624cate as to the proceeds of the sale of the negro slaves, Ira and Stuart, which proceeds of sale are referred to in said decree of the 19th day of May, 1879, as the “negro fund,” be and the same must be reversed with costs in favor of the appellant against the administrator, Kelly, but no further, as the other matters of said decrees are not covered by the appeal and supersedeas in this cause and cannot properly be considered now by this court. And this court proceeding to render such decree in the cause as the circuit court should have rendered,- it is adjudged, ordered and decreed that this cause, as to H. J. Kelly, administrator of Joseph Graham, deceased, be dismissed, and that the petition of said Kelly, administrator, be also dismissed, but without costs as against said Kelly, administrator as aforesaid. And this cause as to all other matters is remanded to said circuit court for such further proceedings as are in accordance with the principles and rules of courts of equity.
The other Judges Concurred.Deoree Reversed IN part. Cause Remanded.