-

§ 472. Even in cases of direct and technical trusts (as has been shown in a former chapter), if the trustee should deny the right of his cestui que trust, and assume absolute ownership, the latter could not be allowed a remedy beyond the period limited for the recovery of legal estates at law, though, as we have seen, so long as the trust is a subsisting one, and admitted by the act or declaration of the parties, the statute cannot affect it. This rule is founded upon the same principle, that applies at law to tenants in common, where the statute does not run but from actual ouster; namely, the possession of one is not adverse to the right of the other, but is in support of their common title. When such transactions, therefore, take place between trustee and cestui que trust, as would, in the case of tenants in common, amount to an ouster of one of them by the other, a court of equity would consider length of time afterwards as of consequence.2 Again, in the words of McLean, J.: "There can be no stronger case put to illustrate the doctrine, that the statute does not run against an established and continuing trust, than that of landlord and tenant. On general principles, the tenant is not permitted to dispute his landlord's title. Having entered under that title, he can set up no adversary title to protect his possession. And yet, if he publicly disclaim his landlord's title, and profess to hold under a hostile title, the statute of limitations will begin to run from the time of such disclaimer." Though there can be no disseisin of a direct trust, yet, where there is a clear adverse possession for more than the time limited, without the acknowledgment of any equity or trust estate in any

hend, on a sound construction, it will be found not to be embraced by the words, nor comprehended within the meaning of the statute; and it would be a new idea to construe a statute liberally for the protection of fraud." Beach v. Catlin, 4 Day (Conn.), R. 294. The only two specific cascs of resulting trusts are, first, where the purchaser has paid the price with his own money, but taken the conveyance in the name of another (not where he has paid with the money of another, and taken the conveyance in his own name), and, secondly, where a trust has been declared of but part of the estate, from which the law implies an intent to reserve the beneficial ownership of the residue. According to Lloyd v. Spillett, 2 Atk. R. 150, and Gibson, Ch. J., in giving the opinion of the court in Kisler v. Kisler, 2 Watts (Penn.), R. 323, in which are cited a considerable number of authorities. And see Pipher v. Lodge, 4 Serg. & Rawle (Penn.), R. 315.

1 Chap. XVI. § 174; Harwood v. Oglander, 6 Ves. R. 199; and see 8 id. 106. [And see ante, § 42, note.]

2 See ante, Chap. XXXII., and Willison v. Watkins, 3 Peters (U. S.), R. 43. & Bowman's Devisees v. Wather, 2 McLean (Cir. Co.), R. 376. And see ante, Chap. XXXIII. [Taylor v. Benham, 5 How. (U. S.), 233.]

one, and no circumstances are stated in the bill or shown in evidence, which overcome the decisive influence of such adverse possession, the established doctrine, say our federal courts, of courts of equity (from its being a rule adopted by those courts, independent of any legislative limitations), is, that they will not entertain so stale demands. So, of course, if a trust be duly surrendered, the subsequent possession of one deriving title from the trustee, but who has claimed adversely to the cestui que trust, will be protected by the statute.2

§ 473. It has been attempted to extend the rule, that the possession of the trustee is the possession of the cestui que trust, to all cases where, during the existence of an outstanding legal estate in a trustee, the beneficial enjoyment, for some considerable time, has been had by a stranger. To sustain this attempt, the following reasoning has been offered: that so long as the interest of the trustee is admitted to subsist, there can be no disseisin of the cestui que trust; that the trustee holds, and can only hold, for the benefit of the rightful owner; that he cannot divest himself of the character of trustee, and no stranger can discharge or deprive him of it.3 But, to this reasoning, it has been replied, that, although a disseisin, according to the strict meaning of the term, cannot be applied to the interest of a cestui que trust, yet that the possession of a stranger will virtually amount to a disseisin, and is no less adverse to the right of the beneficial owner, than if the latter was invested with the legal estate; and that, if the rule which prevents the application of the statute of limitations, as between cestui que trust and trustee, hold between cestui que trust and a stranger, it would nearly annihilate the force and utility of the statute, since the practice of vesting landed property in trustees is so prevailing and general. After much seeming contrariety of opinion on this subject, it appears to be now settled,

1 Baker v. Whiting, 3 Sumn. (Cir. Co.), R. 476; Piatt v. Vattier, 9 Peters (U. S.), R. 405.

2 Guphill v. Isbell, 1 Bail. (S. C.), R. 230. son, and the real interest in another, they form

Whenever the legal title is in one perbut one title, and the statute of limita

tions does not run between the holders of such title, until the trustee disclaims and acts adversely to the cestui que trust. Rush v. Barr, 1 Watts (Penn.), R. 110. See also Lyon v. Marclay, id. 271.

3 Cholmondeley v. Clinton, 2 Meriv. R. 357, 358, 359.

that, if an equitable title be not enforced within the same time that would bar a legal title under corresponding circumstances, courts of equity, regulating the aid they afford by analogy to the act of limitations, will not relieve; and that the trust of the legal estate does not govern, but follows the equitable title. Sir Thomas Plumer, Master of the Rolls, considered, that every instance, in which an outstanding legal estate in the trustee of an old term had been allowed to operate as a protection to a puisne equitable title against a prior one, was a precedent against the doctrine, that there exists an indissoluble connection between the legal estate and the equitable, to which it was first attached; and he held expressly that the mere existence of the legal estate could not excuse the laches and non-claim of the rightful owner of the equitable estate, if there had been a possession for twenty years unequivocally adverse. And it is on this very principle, that the before-mentioned rule has been established with regard to a mortgage; namely, that an exclusive possession of an equity of redemption, during the time limited for the right of entry at law, will operate as a bar to all adverse claimants, and produce the same effect as disseisin with regard to legal interests.

§ 474. The possession of cestui que trust is not adverse to the title of the trustee. Thus, where the rents, issues, and profits of a trust estate (though for above twenty years after the creation of the trust estate), without any interference of the trustees, was consistent with, and secured to, the cestui que trust, by the terms of the trust deed, such possession was held not to be adverse to the title of the trustees, so as to bar their ejectment against his grantee, brought after twenty years. The bona fide possessor of the legal title is not affected by a

1 Llevellyn v. Mackworth, Barn. Ch. R. 445, 449; Bond v. Hopkins, 1 Sch. & Lefr. R. 429; Medlicott v. O'Donnell, 1 Ball & Beat. R. 156. [A purchaser from one of several trustees for A for life, remainder in trust to sell to B, entered under his deed. Held, that the statute commenced running at the time of the entry, against the whole of the estate, and that twenty-one years adverse possession barred, as well the trustee as the cestui que trust for life, and those in remainder. Smilie v. Biffle, 2 Barr (Penn.), 152.]

2 Cholmondeley v. Clinton, 2 Jac. & Walk. R. 153, which is cited as sound authority by Mr. Chief Justice Marshall, in Elmondorf v. Taylor, 10 Wheat. (U. S.), R.

152.

3 Keene v. Deardon, 8 East, R. 248; Earl of Pomfret v. Lord Windsor, 2 Ves. R.

secret trust, of which he has not direct and positive notice; and the possession of cestui que trust, and exercise by him of every act of ownership, is not such notice. But the possession of the cestui que trust becomes adverse, when the legal title is conveyed in violation of the trust. And it has been held, that, after a lapse of thirty-two years, a release to a cestui que trust will be presumed against the heirs at law of a trustee.2

§ 475. It is a maxim, that no conveyance by cestui que trust can work a forfeiture of his life estate. In the case of Lethieullier v. Tracy, the Lord Chancellor (Hardwicke) said: "I will suppose, for argument's sake, that Mrs. Tracy had levied a fine sur concessit of her estate for life; yet, as it is a trust estate, and there are limitations to trustees to preserve contingent remainders, I am of opinion, that it does not work a forfeiture of her estate for life, because it cannot at all hurt or affect the subsequent remainders, as there are trustees under the will to preserve them, and therefore such a fine would, in equity, operate at most as a grant only of such interest as she had a power to grant." "A court of equity will never construe such a fine to work a wrong, but it operates only on the trust to preserve the contingent remainders, and not on the legal estate; for Lord Talbot, in the case of Hoskins v. Hoskins, and myself, in a cause that came before me afterwards, were of opinion, that a person so intrusted, levying a fine, creates no wrong, but operates so as to grant all the conusor had a power to grant," &c.

1 Scott v. Gallagher, 14 Serg. & Rawle (Penn.), R. 333.

2 Moore v. Jackson, 4 Wend. (N. Y.), R. 58.

3 Smith v. Dennison, 16 East, R. 248; Smith v. Wheeler, 1 Ventris, R. 129; and Hogan's Ed. of Tillinghast's Adams on Eject. (1846), p. 51. Saunders on Uses, 201. 4 2 Atk. R. 729.

CHAPTER XXXVI.

DISABILITIES IN RESPECT TO REAL PROPERTY.1

§ 476. It has been shown, in a former chapter, that, unless persons are under the disabilities expressly mentioned in the statute, they cannot be exempted from its operation by judicial construction; 2 and so it would seem by the civil law, that prescription runs against all persons, without exception, unless they are included in some exception established by law. It seems to have been a prevailing notion, that the rights of infants, femes covert, persons non compos, in prison, &c., are saved, by the statute 32 Hen. VIII., and it has been stated generally, in a work of high authority, that this statute has the usual savings for persons laboring under the above-mentioned disabilities. It will appear, however, on examination, that the savings only extended to persons who were subject to such disabilities, at the time this statute was made. The statute Hen. VIII. is different, in this respect, from the statute of 21 James I.

1 For the law more in general as to disabilities, the reader will refer back to Chap. XIX.

2 See ante, Chap. XIX. § 194.

3 Civil Code of Louisiana, p. 703. [A person for whose use a suit is brought is entitled to the benefit of any disability to which he would have been entitled, had the suit been in his own name. Davis v. Sullivan, 2 Eng. (Ark.), 449.]

4 Bacon's Abridgment.

5 Brook, in his "Reading" upon this statute, gives the following construction to its provisions in favor of the rights of infants, &c. "A man seised in right of his wife is disseised, or makes a discontin, and liveth sixty-one years, he and his wife die, the heire of the wife shall not have action, claime, nor enter. Because none is aided but those which were covert at the time of the statute, &c., and the heire doth not claime upon the scisin of his ancestor beyond sixty years, and an entry is a claime." Bro. Reading, p. 60. Again, "If tenant for life, or an ideot, or a man imprisoned, or beyond sea, are disseised, and suffer the sixty years to passe, and dyeth, their heire, nor those in the reversion, shall not make claime, nor enter, nor have action; because, if their entries are taken away, they shall be barred in perpetuum, for the reason aforesaid." Ibid. 61. Again, "If an infant be seised at fourteen yeares, and hath issue, and dyeth before twenty-one yeares, and every issue one after the other, until sixty yeares are past, their