ests of creditors, which are not identical with those of the plaintiff, but different, superior, and conflicting. But for the prayer in the bill for relief in behalf of creditors, I would suppose that all the claims of the creditors had been satisfied and discharged under proper legal and equitable remedies afforded by the courts, or had been barred by the statute of limitations. The creditors could have reached the property of the corporation by legal and equitable process and I cannot imagine any reason why they should have slept upon their rights for 20 years. If the property was sold under proper legal process the purchasers acquired good titles. If the defendants, who were trustees, purchased the property (as is intimated in the bill) at a fair and open sale under legal process, and at the highest price that it would bring at auction, this transaction was neither fraudulent nor void. It may be that on account of their fiduciary relation to the corporation and the stockholders they might in a reasonable time have been declared trustees for the cestuis que trust. In such cases the cestuis que trust must seek their relief in reasonable time, and we have already considered sufficiently the facts and circumstances of this case as to the reasonable diligence of the plaintiffs in seeking relief. Twin Lick Oil Co. v. Marbury,

supra.

It appears in the bill that there were directors in 1861 when the corporation suspended business, and that they continued to act until 1862, and they were not discharged from their duties and responsibilities in any manner provided in the charter or the laws of the state of New York. As directors they were strict trustees of the creditors and stockholders, and it was their duty to have taken care of the corporate property under their control, and to have maintained the rights and consulted the advantages of their cestuis que trust by instituting proper legal proceedings to enable them to perform the duties of the trust with which they were invested.

The bill does not allege that the directors were requested to institute suit against the defendants, or that they had the trust funds, or were offered proper indemnity for such legal proceedings. It was the duty of the directors or trustees to have rendered proper accounts of their transactions, showing what disposition they had made of the property under their control.

When a direct trust is unclosed the statute of limitations does not protect trustees or their legal representatives from liability.

As the directors were strict trustees, and voluntarily accepted the trust, they could not divest themselves of the trust by a resignation

unaccepted by the cestuis que trust, unless some other method was pro vided in the charter or by the laws of the land.

The bill does not show when any of the directors died, or when or how any of them resigned office. If the trust of the directors was continued by a failure of the corporation to elect other directors as successors in office, then it may be that the directors who were living in 1878, when the corporation was dissolved by the expiration of its charter, became trustees of the rights and property of such corporation by virtue of the statute of New York. 1 Rev. St. § 9, p. 557.

The allegations in the bill are admitted by the defendants, so far as they are affected by such allegations; but such admissions do not dispose of the rights and responsibilities of the directors and their legal representatives, who are not parties.

It seems to me that the directors or their legal representatives ought to be made parties, so that they may have an opportunity of being heard, and have the whole subject-matter in controversy so adjusted and settled by a decree of this court as to free them from the duties and liabilities of future litigation.

I will not further consider or determine this question, as there are other sufficient causes for the dismission of the bill.

I will dismiss the bill on the following grounds:

(1) Want of certainty in allegation to show that the plaintiffs are entitled to the relief demanded.

(2) The right to relief has been barred by the statute of limitations.

(3) The long and gross negligence of the plaintiffs in seeking relief, unexplained by sufficient equitable reasons and circumstances.

It is ordered that the bill be dismissed, with costs.

WALKER and others v. COLBY WRINGER Co. and another.

(Circuit Court E. D. Wisconsin. October Term, 1882.)

1. EFFECT OF WORDS "HEIRS," ETC., INSTEAD OF "SUCCESSORS," ETC., IN A DEED.

Execution levy was made upon certain lands to satisfy a judgment recovered in an action on a bond, with surety, taken upon the representations that one of the defendants was possessed of valuable land in her own right. The principal on the bond was a minor, and the judgment was against the surety alone. A suit was brought by the complainants herein asking for an injunction restraining the sale of the lands of which they claim to be the owners. In the deed to the land in dispute the defendant in the former suit appears as the grantee, named

in her representative capacity as the guardian of the complainants herein, bu' in the habendum clause of the deed the words "her heirs and assigns" appear instead of "successors;" and the main question being in whom is the title of the lands vested, held, that the word "heirs," used instead of successors in the printed part of a deed, should not control or qualify the other parts of the instrument; the test being that, in equity, the party could not hold the title in fee in hostility to the heirs, nor could she maintain such a right at law, relying upon the terms of the deed.

2. TRUSTS-STATUTORY.

Sections 2081 and 2090 of the Revised Statutes of Wisconsin refer to trusts created by the instrument declaring them.

3. GUARDIAN AS TRUSTEE.

A guardian is trustee under the statute by virtue of which he is appointed. 4. EXECUTION.

Execution can only be levied on the property of the one against whom the judgment stands. Equity cannot relieve in the application of a purely legal remedy.

5. CLOUD ON TITLE-RESTRAINING SALE UNDER EXECUTION.

A court of equity, in order to prevent a cloud upon the title to land, will, in a proper case, restrain the sale thereof.

In Equity.

J. C. McKenney, for complainants.
J. P. C. Cottrill, for defendants.

DYER, D. J. The bill in this case prays for an injunction restraining the sale of certain lands, of which the complainants claim to be the owners, and which have been made the subject of execution levy to satisfy a judgment heretofore recovered in this court by the defendant the Colby Wringer Company against one Caroline Walker. The material facts of the case are as follows:

Prior to July, 1879, one Emery S. Walker was the agent of the Wringer company for the sale of clothes wringers at Milwaukee. At about the time stated, it was arranged that he should retire from the agency, and that the complainant Jesse W. Walker should be appointed in his stead. The appointment of Jesse W. Walker was, however, to be upon the condition that he should give a bond, with surety, for the payment to the company of the proceeds of goods sold to the amount of $1,500, and Caroline Walker offered to become such surety. The company thereupon took measures to ascertain the extent of her pecuniary responsibility, and, upon the strength of representations made by Jesse W. Walker to the retiring agent, the latter informed the company that Caroline Walker was the owner of property valued at $4,000. The Wringer company was also referred to persons acquainted with Mrs. Walker for further information touching her pecuniary condition, and was advised by letters received from such persons-which it is proved were in fact written by Plummer S. Walker, the husband of Caroline Walker--that Mrs. Walker owned real estate and personal property in her own right worth from $3,500 to $5,000.

The proofs show clearly enough that through the instrumentality of Jesse W. Walker, Caroline Walker, and her husband, Plummer S. Walker, the Colby Wringer Company was led to believe that she was a person of adequate pecuniary responsibility; and the result was that the company accepted a bond or guaranty executed by Jesse W. Walker and Caroline Walker as security for the punctual payment by him of all book-accounts or notes given for goods furnished him. by the company, to the extent of $1,500. Thereupon Jesse W. Walker entered upon the business of his agency, and continued in the same until 1880, when he retired from the agency a debtor to the company in about the sum of $1,500.

It appears further that Calvin W. Walker was the first husband of Caroline Walker, and the father of complainants. He died in April, 1863, leaving real estate of which complainants became the owners by descent as his heirs at law. Caroline Walker was their guardian and made sale of the property. The proceeds were loaned to Plummer S. Walker, who had become the husband of Caroline Walker, and as he subsequently became unable to make repayment in money, he conveyed to Mrs. Walker certain lands in Outagamie county to make good the amount he had so borrowed. The conveyance was made on the twenty-ninth day of July, 1873, and recites that it is an indenture between P. S. Walker and his wife, Caroline Walker, as parties of the first part, and Caroline Walker, as the guardian of the minor heirs of Calvin W. Walker, party of the second part. In the body of the deed there is a recital that the grantors "give, grant, bargain, sell, remise, release, and quitclaim to the party of the second part, and to her heirs and assigns, forever," the lands described; and in the habendum clause are also the words "the said party of the second part, her heirs and assigns, forever." These lands held by Caroline Walker under this conveyance constituted the real estate which the Colby Wringer Company supposed, from the representations before referred to, was owned by Caroline Walker in her own. right.

At the time business relations were established between the Wringer company and the complainant Jesse W. Walker, and from that time until his agency was closed, he was a minor; but of this fact the company had no knowledge until the thirteenth day of November, 1880, when he gave to the company notice in writing that he elected to disaffirm the bond or guaranty executed in July, 1879, by himself and Caroline Walker, on the ground that at the time of the execution thereof he was a minor, under the age of 21 years. Subsequently

the Colby Wringer Company brought a suit in this court against Caroline Walker upon the guaranty, and on the twenty-first day of February, 1881, recovered judgment against her for the sum of $1,500 and costs. Execution was issued on the judgment, and the lands before mentioned were levied on as the property of Caroline Walker, by the defendant Fink, who is marshal of this district. Thereupon the present bill for an injunction was filed to restrain the sale of the lands, on the ground that the complainants are the owners thereof, and that said lands are not subject to seizure and sale as the property of Caroline Walker.

Since the judgment sought to be collected is against Caroline Walker alone, the judgment creditor is restricted, so far as the enforcement of purely legal remedies is concerned, to such property, or such interests in property, as she holds in her own right. The procéeding by execution, resorted to by the plaintiff in the judgment, is an assertion of a strictly legal right. It is not in any sense a proceeding in equity to reach equitable interests. Necessarily, therefore, the first question is, in whom is the title to the lands in question vested?

The claim of the defendant's counsel is that the conveyance of the lands from Plummer S. Walker vested the title in fee in Caroline Walker; and it is urged that this contention is supported by the clauses in the body of the deed, wherein the words "her heirs and assigns, forever," are used. It is claimed that the granting clauses of the deed control the preceding part thereof, wherein the grantee is described as the guardian of the minor heirs of Calvin W. Walker. In view of the proofs on the subject, there can be no doubt that Calvin W. Walker died seized of real estate which on his death became the property of complainants; and that, as an equivalent for the proceeds of that property, which had been used and lost by Plummer S. Walker, the lands in question were conveyed to Caroline Walker for the benefit of the heirs of Calvin W. Walker, of whom she was the legally-constituted guardian. It was the evident intention of the parties to convey the lands to her as such guardian. As grantee in the deed she is named in her representative capacity. The language of the instrument is: "This indenture, made the twenty-ninth day of July, in the year of our Lord one thousand eight hundred and seventy-three, between P. S. Walker and his wife, Caroline Walker, of Maple Creek, Outagamie county, Wisconsin, parties of the first part, and Caroline Walker, as the guardian of the minor heirs of Calvin W. Walker, of the same place, party of the second part." The