The conveyanee from the trustee to the cestui que trust in such cases is but the execution of the trust; the right to obtain the legal title is but an incident to the estate of the cestui que trust. So long, therefore, as the estate exists, so long will the right to acquire the legal title subsist. It is like the right of a tenant in common to compel a partition, and is not a cause of action which accrues in the sense of the statute of limitations, and which may be lost by the lapse of time. The trus tee and cestui que trust have the same title, and do not hold adversely so long as the rights of neither are denied. If A. purchases land with his own money, but, for proper reasons, the deed is taken in the name of B. with his consent, and A. goes into possession and continues to use the property as his own, this would be an implied trust; but no one would think the statute of limitations would deprive A. of his estate for a failure to obtain the legal title within four years. He is guilty of no laches in asserting his rights. His possession is the most effective assertion of them. In Texas, this question has been considerably discussed, and the decisions are in accordance with this view. The trust created is held to be a continuing trust; that the vendee is clothed with the equitable title, and the statute does not run against his right to enforce a specific performance, so long as he remains in possession with the acquiescence of the vendor.1 -- SEC. 220. Purchaser of Property for Benefit of another. — It is a well-settled rule that where one person purchases lands or other property for another, and the purchase-money is paid by the beneficiary or out of his funds, although the title is taken in the name of the person making the purchase, a trust results, and the purchaser, holds the land or other property in trust for the person whose money paid for the same, whether the trust was created by writing, or vests merely in parol. If a part only of the purchase-money is paid by the person claiming the benefit of the trust, the resulting trust is limited to the amount so paid, even though he subsequently pays the balance, or offers to pay it, unless a note or other obligation is given for the bal Sch. & Lef. 603; Burke v. Length, 3 J. & title could only be barred by adverse possession, and, therefore, an equitable title could only be barred in the same way. 1 Hemming v. Zimmerschitte, 4 Tex. 159; Mitchell v. Shepperd, 13 id. 484; Holman v. Criswell, 15 id. 394; Vardeman v. Lawson, 17 id. 10; Newson v. Davis, 20 id. 419. 2 Havens v. Bliss, 26 N. J. Eq. 363; Cutler v. Tuttle, 19 id. 549; Stratton v. Dialogue, 16 id. 70. 891. 8 Baldwin v. Campbell, 8 N. J. Eq. ance; and if the consideration is paid by two or more persons jointly, a trust results in favor of each, to the extent of the consideration furnished by each. The rule is well-settled that the trust must result at the time of the execution of the deed, and cannot be raised by matters subsequent thereto, and it is under this latter rule that the trust is restricted to the amount of the purchase-money actually furnished by the person claiming the benefit of the purchase at the time of or before the execution of the conveyance, as the trust must result at the very instant the deed is executed, or it cannot result at all.* 1 Depeyster v. Gould, 3 N. J. Eq. 474; Baldwin v. Campbell, ante. 2 Cutler v. Tuttle, ante. 3 Tannard v. Little, 23 N. J. Eq. 264. 4 Davis v. Wetherell, 11 Allen (Mass.), 15; Barnard v. Jewett, 97 Mass. 87. SEC. 221. Relation of, to the Property. Before proceeding to discuss the application of the statute to this class of securities, it is proper to ascertain the relation which the parties occupy to the property covered by the mortgage. Strictly speaking, by the conveyance the mortgagee is invested with the legal title to the estate, while the mortgagor retains only the equitable title, which gives to him the right to reinvest himself with the legal title upon performance of the conditions imposed by the conveyance. In other words, the mortgagee takes the legal title subject to a condition, unless, as is the case in some of the States, the statute regulates the character of the relative estates. There is much confusion in the cases as to the precise relation of a mortgagor and mortgagee to the estate; but this confusion results mainly from a difference in the form of the mortgages under which the decisions have arisen, and in some instances from the peculiar provisions of statutes relating to the matter. A mortgagor is in an anomalous position, and in the language of PARKE, B.," he can be described only by saying he is a mortgagor." LORD MANSFIELD, in a leading case,' says: "A mortgagor is not properly tenant at will to the mortgagee, for he is not to pay him rent. He is only quodam modo. Nothing is more apt to con 1 Litchfield v. Ready, 20 L. J. Exch. 51. 2 Moss v. Gallimore, Doug. 279. found than a simile. When the court or counsel call a mortgagor a tenant at will, it is barely a comparison. He is like a tenant at will." The mortgagor has sometimes been treated as a tenant at will to the mortgagee, or as a mere tenant at sufferance; but at the present day, until condition broken and foreclosure, a mortgagor is treated, both at law and in equity, as the legal owner of the estate, the mortgage being only a security, and the mortgagee having only a lien upon the land, as a security for his debt.1 But in some of the States it is held that a mortgage in fee passes both the legal and equitable estate, defeasible by the performance of the condition according to its legal effect. The preponderance of authority, however, relative to ordinary mortgages, is in favor of the doctrine that the title remains in the mortgagor, at least until after condition broken (and in many of the States until after foreclosure); and 1 Elfe v. Cole, 26 Ga. 197; Casborne v. Scarfe, 1 Atk. 603; Jackson v. Lodge, 36 Cal. 28; Thayer v. Cramer, 1 McCord (S. C.) Ch. 395; McMillan v. Richards, 9 Cal. 365; United States v. Athens Armory, 35 Ga. 344; Fay v. Cheney, 14 Pick. (Mass.) 399; Caruthers v. Humphrey, 12 Mich. 270; Bryan v. Butts, 27 Barb. (N. Y.) 503; Hall v. Savill, 3 Iowa, 37. But in some of the States the legal title is held to pass for some purposes. Thus, in Glass v. Ellison, 9 N. H. 69, it was held that, for the protection of the interests of the mortgagee, and in order to give him the full benefits of his security, the legal estate passes, but that for other purposes the mortgage is in general held to operate only as a mere security for the debt. See also, to same effect, Clark v. Rayburn, 1 Kan. 281. In many of the States, as between the mortgagor and mortgagee, it is held that the title passes, but not as to third persons. Terry v. Rosell, 32 Ark. 478. 2 Blaney v. Bearce, 2 Me. 132; Briggs v. Fish, 2 D. Chip. (Vt.) 100; Carter v. Taylor, 3 Head (Tenn.), 30; Erskine v. Townsend, 2 Mass. 495; Wood's Landlord & Tenant, 183 et seq. 3 Whitmore v. Shiverick, 3 Nev. 288; Jackson v. Lodge, 36 Cal. 28; McMillan, v. Richards, 9 id. 365; Goodenow v. Ewer, 16 id. 461; Boggs v. Hargrave, id. 559; Fogarty v. Sawyer, 17 id. 589; Dutton v. Warshauer, 21 id. 609; Bludworth v. Lake, 33 id. 265; Davis v. Anderson, 1 Ga. 176; Rayland v. Justices, &c., 10 id. 65; Elfe v. Cole, 26 id. 197; United States v. Athens Armory, 35 id. 344; Seals v. Cashier, 2 Ga. Dec. 76; Hall v. Savill, 3 Iowa, 37; Chick v. Willetts, 2 Kan. 384; Caruthers v. Humphrey, 12 Mich. 270; Bryan v. Butts, 27 Barb. (N. Y.) 503; Thayer v. Cramer, 1 McCord (S. C.) Ch. 395. In Alabama, a mortgage is regarded as possessing a dual nature, bearing one character in a court of law and another in a court of equity, but the legal estate is treated as remaining in the mortgagor until condition broken, when it at once vests in the mortgagee, leaving only an equity of redemption in the mortgagor. Welsh v. Phillips, 54 Ala. 309. In Arkansas, the legal estate, as between the mortgagor and mortgagee, is treated as being in the latter, but as to third persons it is in the mortgagor. Terry v. Rosell, 32 Ark. 478; Collins v. Torry, 7 Johns. (N. Y.) 278; Blanchard v. Brooks, 12 Pick. (Mass.) 47. In Kansas, Life Association v. Cook, 20 Kan. 19; Michigan, Wagar v. Stone, 36 Mich. 364; Nebraska, Harley v. Estes, 6 Neb. 386; California, Jackson v. Lodge, ante; Georgia, Rayland v. Justices, 10 Ga. 65; Nevada, Whitman v. Shiverick, 3 Nev. 288; and, indeed, in most of the States, a mortgage is held to be a mere security, vesting no estate in the mortgagee until after foreclosure, Myers v. White, 1 Rawle (Penn.) 353; State v. Laval, 4 McCord (S. C.), 336; Cheever v. Railroad Co., 39 Vt. 363; while in Rhode Island, Connecticut, New Hampshire, Minnesota, Indiana, North 2 in England, while the mortgagor is in possession, or in receipt of the rents and profits, he is treated as a freeholder, and as such is entitled to vote in the election of members of Parliament,' and is entitled to retain possession until the mortgagee enters or brings ejectment, and is not liable to the mortgagee for the rents or profits of the premises.3 The right of the mortgagor to retain possession of the premises, and consequently his right to lease the same after mortgage, is generally upheld, but must depend largely upon the language of the mortgage, and upon the statutes relating thereto in the several States, although the instances are very rare where a mortgagee takes possession before condition broken, or even before foreclosure and final decree. But, without stopping to discuss the relation of the parties to the estate further, it may be said that the tenant can acquire no greater rights than the mortgagor himself had, but may defend his title under the lease to the same extent that the mortgagor could, and may even redeem the estate to protect his term.* Carolina, Mississippi, Missouri, and Massachusetts, the common-law rule, with some limitations, prevails. It is a mere incident of the debt, and falls with it. Morris v. Bacon, 123 Mass. 58; Benton v. Bailey, 50 Vt. 137. v. Taylor, 8 N. Y. 44. In Walker v. King, 44 Vt. 601, it was held that a mortgagee who has never taken possession under his mortgage, but has permitted the assignee of the mortgagor to remain in possession, has no greater claim against him for rents and profits than he would have against the mortgagor; and it is well settled that he has no claim upon the mortgagor therefor, either at law or in equity. Ex parte Wil In New York, by statute, an action of ejectment by a mortgagee is abolished, and, in the ausence of any contract for possession, the mortgagor is entitled thereto, and to the rents and profits of the estate, unless, upon a proper showing as to the in-son, 2 V. & B. 252; Hill v. Bexley, 20 adequacy of the security, and the irresponsibility of the mortgagor, the courts will appoint a receiver of the rents. Astor v. Turner, 11 Paige (N. Y.) Ch. 436; Sea Ins. Co. v. Stebbins, 8 id. 565. But after sale, a tenant who went in under the mortgagor, and was made a party to the proceedings, is bound to attorn to the purchaser. Lov ett v. Church, 9 How. Pr. (N. Y.) 226. 1 3 & 4 Will. IV. c. 45, § 23. ? Rex v. Edington, 1 East, 293; Keech ♥. Hall, 1 Doug. 21; Bree v. Holbech, 2 id. 655; Reading of Judge Trowbridge, 8 Mass. 551; Clark v. Rayburn, 1 Kan. 281. 8 Renard v. Brown, 7 Neb. 449. The mortgagor's right to lease and take the rents continues until it is divested by some positive interference of the mortgagee. Dunn v. Tillery, 79 N. C. 497; Chadbourn v. Henderson, 58 Tenn. 460; Gibson v. Farley, 16 Mass. 280. Rogers v. Moore, 11 Conn. 553. As to tenant's right to redeem, see Averill Beav. 127; Walmsley v. Milen, 7 C. B. N. s. 115; Moss v. Gallimore, 1 Doug. 283; Trent v. Hunt, 9 Exch. 14; Joly v. Arbuthnot, 28 L. J. Ch. 547; Cole on Ejectment, 38, 473. In Georgia, the mortgagor is entitled to all the rents and profits of the land, until he is sold out and dispossessed by foreclosure proceedings. Vason v. Ball, 56 Ga. 268. In Kentucky, unless the rents and profits are specially pledged, the same rule prevails, and the mortgagee cannot claim them as a legal incident of the estate. A court of equity may, after the debt becomes due, if the property is inadequate to secure the debt, in an action to foreclose the mortgage, appoint a receiver of the rents. But if there is no deficiency, they go to the mortgagor. Douglass v. Cline, 12 Bush (Ky.), 608. In Mississippi, the mortgagor retains the legal title and right of possession until condition broken, and the mortgagee cannot intefere therewith, nor can |