Eespondents chiefly rely on the statutes ■of limitations to support the judgment. To that appellant ■says Mark Gibson was trustee of an express trust and cannot invoke the statutes of limitations to defeat the claim of his cestui que trust. True, Gibson was such trustee as regards a power of sale and control of the property in controversy for the payment of the debts of the deceased, but for no ■other purpose. Barker v. Barker, 11 Wis. 131; sec. 3823, Stats. 1898; Carpenter v. Fopper, 91 Wis. 116. ITis status as trustee was extinguished when the sale of the real estate took place. His relationship to the estate, which gave rise to the trust relation, was wholly terminated in 1872, when he was discharged as administrator. From that time, at least, there was an unequivocal disavowal by him of any trust relation to the plaintiff or to the property in dispute. The rule invoked applies only to continuing trusts. The suspension of the statutes of limitations, as to a person once a trustee, ceases upon the termination of his character as such, and before that time if he distinctly disavow the existence of the trust relation by holding the subject of the trust adversely, openly, and with notice to the cestui que trust. Angell, Limitations, § 174; Riddle v. Whitehill, 135 U. S. 621. There was obviously no continuing trust in this case that reached beyond the settlement of the administrator’s account and his discharge, and no trust precluding the running of the statute of limitations in his favor after the open, notorious surrender of the subject of the trust pursuant to the administrator’s sale.

■ Appellant’s counsel further contend that the administrator’s deed is open to attack because plaintiff, under sec. 4218, Stats. 1898, was entitled to five years after becoming of age within which to commence an action to recover the property conveyed thereby. Waiving the" question of whether the five years had fully run before this action was commenced, the conclusive answer to appellant’s proposition is *106that the subject of such action is not the recovery of real property, but the cancellation of the administrator’s deed; hence it is not governed by sec. 4218, but is governed by sec. 4221, Stats. 1898. Appellant first commenced an action to recover the property. That was held not maintainable, the title to the property not being in appellant, and his remedy, primarily, at most, being the right to maintain an action in equity to annul the administrator’s deed for fraud, constructive or actual. Gibson v. Gibson, 102 Wis. 501. Sec. 4218 plainly refers to actions by persons possessed of the title to the subject of the litigation but wrongfully deprived of the enjoyment of it. This is an action to annul a voidable sale for fraud,— an action that, “ on and before the 28th day of February, 1851, was cognizable by a court of chancery,”— as to which there is no statute of limitations other •than sec. 4221, Stats. 1898,— the ten years statute. Therefore, by the express terms of that section it applies, except so far as the limitation period was suspended by appellant’s disability because of his infancy. The only protection given him on that ground is contained in sec. 4233, Stats. 1898, which provides that, “if a person entitled to bring an action mentioned in this chapter [ch. 177], except actions for the recovery of a penalty or forfeiture of against a sheriff or other officer for an escape, or for the recovery of real property or the possession thereof, be, at the time the cause of action accrued, . . . within the age of twenty-one years, . . . the time of such disability is not a part of the time limited for the commencement of the action, except that the period within which the action must be brought cannot be extended more than five years by any such disability, except infancy; nor can it be extended in any case longer than one year after the disability ceases.”

The conclusion necessarily reached is that the time for the commencement of this action terminated on the 7th day of April, 1891, long before the commencement of the action *107for the recovery of the property which failed for want of title in appellant. There was a plea of the statute of limitations in that action, "but the defendant prevailed on the merits in the court below, so there was no call for this court, on appeal, to say anything in regard to the effect of the limitation statutes. That subject was not presented for consideration in the briefs of counsel or mentioned in the opinion.

By the Court.— The judgment of the county court is affirmed.