A Trustees. TRUST being considered, in some respects, as Estate of similar to a use before the statute 27 Hen. VIII. it follows that trustees are nearly in the same situation as feoffees to uses formerly were. But the Court of Chancery, in the exercise of their jurisdiction over trusts, has avoided the mischiefs that arose from uses. 2. One of the principal of these was, that the estates of the feoffees to uses became subject to all their legal incumbrances. But upon the establishment of trusts it was settled, that in equity the estate of the 1 P. Wms. trustees shall not be subject to the specialty or judge- 278. 2- 318. Noell v. Jevon, ment debts of the trustee to the dower of his wife, 2 Freem. 43. or the curtesy of the husband of a female trustee. Hard. 465. 3. Where a trustee is attainted of felony, the legal Carter R. 67. estate is forfeited; but the cestui que trust is entitled to relief in equity. In the case of attainder for treason it does not appear to have been settled Lane, 39.54. whether the cestui que trust has any remedy against the Crown. And where a trustee dies without heirs, by which the lands escheat, it is doubtful whether the lord is subject to the trust. Duty of 4. With respect to the duty of trustees, it is still held, in conformity to the old law of uses, that pernancy of the profits, execution of estates, and defence of the land, are the three great properties of a trust. So that the Court of Chancery will compel trustees, 1. To permit the cestui que trust to receive the rents and profits of the land; 2. To execute such conveyances as the cestui que trust shall direct. 3. To defend the title of the land in any court of law or equity. 5. The necessity that the trustee should execute conveyances of the land, arises from this circumstance; that as the legal estate is vested in him, and he is considered, in the courts of law, as the real owner, it follows, that although the cestui que trust can ante, c. 2. § 6. alone dispose of his equitable interest, yet he cannot 2 P. Wms. 134. convey the legal estate, without the concurrence of the trustee. But where the cestui que trust has the absolute interest in the trust, he can compel the trustee to convey the legal estate, either to himself, or to any other person in fee simple. 6. The cestui que trust is only entitled to a conveyance where the whole of the trust belongs to him. For if lands are devised to trustees, in trust to pay annuities; and subject thereto, in trust for A. B.; the legal estate cannot be taken from the trustees while the annuities are subsisting. 384. 134. Boteler v. 7. Where there is a cestui que trust in tail, he may 1 Ab. Eq. call on the trustee to convey the legal estate to him. And no one can afterwards prevent him from barring the entail; or the trustee may join with the cestui que Allington, trust in 'barring the entail. But where the cestui 1 Bro. R. 72. trust is only entitled to an estate tail, the trustee ought not to convey to him in fee simple. que 8. Infant trustees are enabled, by statute 7 Ann. Tit. 32. c. 2. c. 19, to convey lands whereof they are seised in trust, under the direction of the Court of Chancery. judice the 9. It is a rule in equity, that no act of a trustee Their Acts shall prejudice the cestui que trust; nor shall the for- shall not prebearance of trustees, in not doing what it was their Trust. duty to have done, affect the cestui que trust; since 3 P. Wms. in that case it would be in the power of trustees, by 2706. delaying to do their duty, to affect the rights of persons. Wherefore the rule in all such cases other persons. 215. is, that what ought to have been done shall be con- Allenv.Sayer, sidered as done. And so powerful is this rule, as to Tit.35.c. 14. alter the very nature of things; to make money land, and land money. 10. There is however one exception to this rule; Exceptionfor if a trustee be in the actual possession of the without Conveyance estate, which however is a case that seldom happens; Notice, and conveys it, for a valuable consideration, to a purchaser, who has no notice of the trust, such purchaser will be entitled to hold the estate against the Case. cestui que trust: because confidence in the person is Millard's still deemed necessary to a trust; and it is a rule in 2 Freein. 43. equity, that an innocent person shall not, in general, have his title impeached. 11. If a trustee mortgages the estate to a person 1P. Wms, who has no notice of the trust, the mortgagee will be 278. Bovey v. allowed to hold against the cestui que trust; because mortgagees are considered as purchasers; and as having a specific lien on the estate: whereas it has been observed that estates held in trust are not subject to the specialty or judgement debts of the trustee. 12. If a trustee sells to a stranger, who has no Tit. 35. c. 14. notice of the trust, and afterwards repurchases from the stranger for a valuable consideration, he will again become liable to the trust. Mansell v. Tit. 16. c. 7. 2 Salk. 680. 1 Vern. 149. Where Pur chasers are 13. Where a purchaser has notice of the trust, though he pays a valuable consideration, he shall be subject to it. For, as Lord Hardwicke says, "If a person will purchase with notice of another's right, his giving a consideration will not avail him; for he throws away his money voluntarily, and of his own free will." 14. So if a trustee conveys an estate to a stranger, without any consideration consideration; though the person to whom it is conveyed, has no notice of the trust, yet he will be liable to it. * 15. We have seen that a purchase from a trustee, bound to see with notice of the trust, is a fraud, even though the Trusts per- purchaser should pay a valuable consideration. Where formed. Dunch v. 1 Vern. 260. a trustee is authorized to sell, such a purchase cannot be fraudulent: there are, however, many cases in which a purchaser, with notice of a trust, is answerable for the trustee, and therefore bound to see that his money is applied in execution of the trust. 16. Thus, where a person conveys or devises his estate to trustees, upon trust to sell it, for payment of certain debts specified in the deed or will, or in * With respect to trustees appointed to preserve contingent remainders, their duty will be stated in Tit. 16. Remainder. any schedule thereto annexed; a purchaser will in that case be bound to see that his money is applied in payment of those debts. 17. So where a decree was made for the sale or mortgage of an estate; with a direction that the money should be applied in payme.,t of debts which were ascertained by the report of the Master; Lord Hardwicke held, that a purchaser under that decree, was bound to see to the application of his money. 18. Legacies stand upon the same ground, as specified or scheduled debts; therefore a purchaser must see that his money is applied in payment of them. 19. It is the same where estates are conveyed or devised to trustees, upon trust to sell, and apply the money for any particular or specific purpose: a purchaser of the estate, with notice of the trust, is bound to see to the application of the money. For if the purposes to which it is directed are not fulfilled by the trustees, the estate will still be liable to them, in the hands of the purchaser. 20. Lands were vested in trustees by act of par- Cottrell v. liament, to raise a sum of money to rebuild a printing 2 Vern. 5. Hampton, house. It was decreed that the mortgagee was bound to see the money applied accordingly. 21. It is a very common practice to direct the money arising from the sale of lands, to be invested in the funds in the names of the trustees, upon several trusts; nor does it appear to have ever been judicially settled, to what extent a purchaser is bound to see to the performance of such a trust. In a case of this kind, the late Mr. Booth says-" I am of Cases and Opin. V. 2. opinion that all that will be incumbent on the pur- 114 chaser to see done in this case, will be to see that the trustees do invest the purchase money in their own names in some of the public stocks or funds, or |