to have a conveyance of the legal estate to the King. The Court resolved, that although Freeman Sands had the trust of the land at the time of his attainder, yet inasmuch as Sir G. Sands continued seised of the lands, and so was tenant to the King, though subject to the trust, yet the trust was not forfeited to the Crown; but that Sir G. Sands should hold the lands for his own benefit, discharged from the trust. 29. A trust estate of inheritance does not escheat Not subject to Escheat. to the Crown by the death of the cestui que trust withBurgess v. out heirs. But the trustee will hold the land dis- Wheate, Tit. 30. charged from the trust." Crown Debts, 3 Cha. R. 20. 30. It is somewhat doubtful whether trusts were Liable to originally liable to Crown debts. But by the statute 13 Eliz. c. 4. § 5. it is enacted, that if any person who is an accountant, or indebted to the Crown, shall purchase any lands in the names of other persons, to his own use; all such lands shall be taken for the Tit. 14. satisfaction of the debts due by such persons to the Crown. Persons. 31. When trust estates of freehold were established And to Debts by the Court of Chancery, it was there held, by due to Private analogy from the old law of uses, that they were not Bennet subject to debts, nor assets in the hands of the debtors heirs. v. Box, 32. To remedy this, it was enacted by the statute 29 Cha. II. of frauds, "That it shall and may be lawful for every ; c. 3. § 10. sheriff or other officer, to whom any writ or precept shall be directed, upon any judgement, statute, or recognizance, to do, make. and deliver execution unto the party in that behalf suing, of all such lands, tenements, &c. as any other person or persons shall be seised or possessed in trust for him against whom execution is so sued, like as the sheriff or other officer might or ought to have done if the said party against Tit. 14. § 71. 2 Atk. 293. Merge in the legal Estate. Wade v. 1 Bro. R. 363. Goodright v. Wells, Tit. 29. c.3. 3 Ves. Jun. 126. whom execution shall be so sued had been seised of execution. posses 34. Where a trust estate descends on the heir at law, though it may be necessary to resort to equity to reduce it into possession, yet it will be considered as legal, and not equitable assets: a trust estate being made assets by the statute. 35. Trust estates are in all cases subject to merge in the legal estate, whenever both estates come to the same person: for a man cannot be a trustee for himself. And in a modern case Lord Thurlow said it was universally true, that where the estates unite, the equitable must merge in the legal. 36. In a subsequent case Lord Alvanley said, “ Another position was maintained in a latitude that would create infinite confusion. That where there is in the same person a legal and equitable interest, the former absorbs the latter. I admit that where he has the same interest in both, he ceases to have the equitable estate, and has the legal estate, upon which this court will not act, but leaves it to the rules of law. But it must be understood always with this restriction, that it holds only where the legal and equitable estates are co-extensive, and commensurate; but I do not by any means admit, that where he has the whole legal estate and a partial equitable estate, the latter sinks into the former; for it would be a disadvantage to him," Estate is a 37. It is a rule of law, that in an ejectment, the Where a legal plaintiff must recover upon the strength of his own Bar in Ejecttitle; and cannot found his claim on the weakness of ment. that of the defendant; for possession gives the defen dant a right against every man who cannot show a good title. The party who would change the posses. sion, must first establish a legal title in himself: therefore where it can be shown by the defendant that the legal title is not in the plaintiff, he cannot recover in the action. 88. It was formerly held that an outstanding legal 3 Burr. 1901. estate should not be set up as a bar in ejectment, Cowp. 46. Doug. 721. to the cestui que trust, where he was entitled to the benefit of the whole legal estate. But Lord Mansfield has said, the rule only was, that the legal estate should not be set up, to defeat the cestui que trust, in a clear case; for where the trust was perfectly manifest, the rule stood upon strong and beneficial principles; because in ejectment the question was, who was entitled to the possession. But if a trust was doubtful, a court of law would not decide upon it in 8 Terin R. 122. Where a Reconveyance will be presumed. 3 Burr. 1901. an ejectment; it must be put into another way of inquiry. 39. This doctrine has been denied by Lord Kenyon, who has said, that "if it appear in a special verdict, or a special case, that the legal estate is outstanding in another person, the party not clothed with that legal estate, cannot recover in a court of law. And in this respect I cannot distinguish between the case of an ejectment brought by a trustee against the cestui que trust, and an ejectment brought by any other person. 40. In the case of Lade v. Holford it appears to have been agreed, that where the beneficial occupation of an estate, by the possessor, has given reason to Doug. 721. suppose that possibly there may have been a conveyance of the legal estate, to the person who is equitably entitled to it; a jury may be advised to presume a conveyance of the legal estate. And this doctrine is confirmed by the following case. Hilary v. Waller, 12 Ves. 239. 41. Upon a bill in Chancery for the specific performance of an agreement to purchase a farm, the defendant objected to the title. The estate appeared to have been conveyed in 1664 by way of indemnity: and as to one moiety of the estate, there was no provision for reconveying it; as to the other moiety there was such a provision after the death of two persons then living, and eleven years after. In a family settlement executed in 1694, the conveyance of 1664 was excepted. From that time no notice was taken of it; but the estate was conveyed by the persons in possession, as if they were seised of the legal estate. So that the owners had acted as proprietors of the fee simple for a hundred and forty years; and no claim appeared to have ever been made on the estate, under the deed of indemnity. The objection to the title was founded on the legal estate's being outstanding. To which it was answered, that a reconveyance of it ought to be presumed. Sir W. Grant said, that length of time did not, of itself, furnish the same sort of presumption, in this case, that it did in a case of adverse possession. Long continued possession implied title; as, if there was a different right, the probability was, that it would have been asserted. But undisturbed enjoyment did not show whether the title was equitable or legal. It did not follow however that a conveyance of the legal estate could not be the subject of presumption; though the presumption was made upon a different ground. Lord Kenyon, though disinclined to permit ejectments to be maintained upon equitable titles, always admitted that it might be left to the jury to presume a conveyance of the legal estate. On what ground was such presumption to be made? On this, that what ought to have been done, should be presumed to have been done: when the purpose was answered for which the the legal estate was conveyed, it ought to be reconveyed. Presumptions did not always proceed on a belief that the thing presumed, had actually taken place. Grants were frequently presumed, as Lord Mansfield Cowp. 215. had said, merely for the purpose, and from a principle of quieting the possession. There was as much occasion for presuming conveyances of legal estates as otherwise titles must for ever remain imperfect, and in many respects unavailable; when, from length of time, it became impossible to discover in whom the legal estate, if outstanding, was actually vested. If it could be ascertained at what period the VOL. I. Kk |