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The opinion of the Court was delivered by

Moses, C. J.

The issues of law involved in this case are to be determined without regard to the change made by the Constitution of 1868 in relation to the powers of married women over property which they held at the time of marriage or afterwards acquired. Neither, in the view which we take of "the principal point presented by the appeal, is it necessary to consider whether the appellants had notice of the fact that the lands included in their mortgage were purchased by the husband with the proceeds of the labor of the slaves, conveyed by the deed of settlement to the separate use of the wife. It was of personal property only, and by its terms reserved “ to the parties interested in the same, for the period during which they may be entitled to receive the income,” the right, “ at their discretion, either to possess and use the said slaves or hire out *240the same.” Under this power they continued in the charge of the husband and wife, probably never having been in the actual possession of the trustee. They were used and employed by the husband from the date of the deed in 1851 to their emancipation as they had been when their absolute title vested in him, and no difference followed in his unrestricted disposition of the proceeds of their labor.

With full'knowledge by the wife of his application of the income from the trust property to the purchase of the lands, taking the title in his name, and treating them as his own independent property, she never demanded any account, though she resided on the very land for near twenty years, and during all that period forebore from any interposition through which she could have secured the enjoyment of any separate right to which she might have been entitled under the settlement. If she ever considered that she had an interest iu the lands by reason of their purchase with the income derived from the labor of the slaves settled to her sole use, she abstained from following or charging them under the claim which she now asserts. It was on motion of the counsel of her husband that she even became a defendant to this cause. Is she debarred by her course in regard to the income from her separate estate from now asserting an equity which can override the title of the husband to the land covered by the mortgage?

The decree of the Circuit Judge admits that if the husband, with the knowledge of the wife, receives from her trustee the income of property conveyed to her sole use, the accumulations from that source belong to him absolutely. It contends, however, that a different rule prevails, where, with the consent of the wife, the property is in the immediate’management and control of the husband.

We can perceive no principle to sustain such a construction, and a close examination of the cases fails to disclose a single authority in its support. The rule rests on the assumption of either an express gift of the income to the husband or one implied from her acquiescence. — Hill on Trustees, 425; Powell vs. Hankey & Cox, 2 P. W., 82; Beresford vs. Archbishop of Armagh, 13 Sim., 643; Thromp vs. Harman, 3 M. and K., 513. In Charles vs. Coker, (2 S. C., 136,) this Court said: “Even where the married woman is considered in regard to her separate estate as a femme sole only to the extent of the power conferred by the instrument, if this does not restrict her disposition and alienation, if she permits the husband to *241receive the rents and profits of the estate, the presumption is that it is with her assent and by way of gift.”

If neither the trustee nor the husband is liable to the wife, where, with her assent, the income of her settled property is paid by the trustee to the husband, the mind seeks in vain for a reason why a dif■ erent rule should be enforced where the usufruct and income to which the wife is entitled are not only transferred to the husband, but permitted for a long series of years to be subjected to his sole control. In the latter instance her purpose is more distinctly disclosed and manifested. But the intention to confer a gift is still more apparent when regard is had to the terms of the settlement in question and the course of the wife in regard to the powers which she was at liberty to exercise under it. While it transfers the slaves to a trustee for the sole and separate use of the wife, during the joint lives of herself and husband, it expressly reserves to her, while she continues entitled to the income, the right to possess and use or hire them out. Under this reservation she retained the possession. The trustee was thenceforth discharged from all responsibility for the possession, and the use was subject to her control, with the full right to all the profits to be derived from it. The entire and uncontrolled use she committed to her husband, allowing him for a succession of years not only to receive the income but to appropriate it according to his own will and pleasure, with full knowledge of the fact that he had applied a portion of it to the purchase of the “Home place,” on which they lived, taking a title to the several tracts which composed it in his own name. Effect must be given to her acts according to their manifest intent. On what principle can the claim she now makes be reconciled with her course in regard to the income of the property for so extended a period? If she was dissatisfied with the course of her husband in respect to the disposition of it, ready means were at her disposal to secure it for her own separate use. A transfer of the property to the trustee, with directions to pay the proceeds alone to her, would at once have accomplished the purpose and left the husband powerless as to any appropriation of it to his own purposes.

“The most favorable presumptions,” says Chancellor Kent, in Methodist E. Church vs. Jacques, (3 John. Ch., 79,) “are indulged when the husband is permitted by the wife to be concerned in the management of the income of her separate estate as it occasionally *242accrues. Between strangers a more strict and severe rule would be required.”

There is another principle which materially affects the claim of the wife now interposed. It is her want of diligence in not resorting to the means of securing the income of the property to her sole use. “Courts of equity administer their aid only in favor of those who are guilty of no improper acquiescence or delay. Hence, if there be a clear breach of trust by a trustee, yet if the cestui que ¿rust or beneficiary has for a long time acquiesced in the misconduct of the trustee, with full knowledge of it, a Court of equity will not relieve him, but leave him to bear the fruits of his own negligence or infirmity of purpose.” — 2 Story’s Eq., § 1284.

The same reason exists for applying the principle to a husband permitted by the wife to use and control property secured to her .separate use. If there has been a breach of duty on his part, her •delay in freeing herself from the consequences and seeking reparation is another evidence of her assent and acquiescence.

A question has been made as to the mortgage of H. K. W. Flinn to Edwards, and by him assigned to Mclver for the benefit of Mrs. Flinn. It appears by the report of the Referee that such a mortgage exists and is a prior valid claim upon the land included in the mortgage of the plaintiffs. Exception was taken to this conclusion by the appellants, because “it appeared that Mrs. Flinn purchased said mortgage with trust funds applicable to the debts of Flinn, the husband, and amounted to payment.” The report of the testimony discloses not a single fact in regard to the means through which the .assignment was procured.

The Judge overruled the exception, save as to the rate of interest the mortgage debt is to bear after maturity. As we have been left ■without any evidence of the fact on which the exception is rested, we must sustain the conclusion of the Court in regard to it.

It is ordered that so much of the decree of the Circuit Court as dismisses the complaint, thereby holding that the plaintiffs are not ■entitled, to a judgment of foreclosure of their mortgage, be reversed ; that the case be remanded for such orders as may be necessary to give effect to the judgment of this Court as herein declared.

The point made by the plaintiffs as to their right to an account of rents and profits from the defendant, Ann 1). Flinn, has not been passed upon by the Circuit Court. Its consideration was necessarily excluded by the effect of the decree on the mortgage.

*243It is remitted to the Circuit Court, with leave to the plaintiffs there to submit it, if they so desire.

Wright, A. J., and Willard, A. J., concurred.

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