to purchase the entire interest in the land took a conveyance without words of limitation to his heirs, passing only as an estate for life, the lapse of fourteen years after the expiration of the life estate was a protection to the heirs of the purchaser. Boone v. Chiles, 16 Pet., 177.

$254. What reasonable time is, within which a constructive trust can be enforced, depends on the circumstances of the case; but there can be few cases where it can be done after twenty years' peaceable possession, by the person who claims in his own right, but whose acts have made him a trustee by implication. Ibid.

§ 255. The lapse of forty years, and the death of all the original parties, deemed sufficient to presume the discharge and extinguishment of a trust, proved once to have existed by strong circumstances; by analogy to the rule of law which after a lapse of time presumes payment of a debt, surrender of a deed, and extinguishment of a trust, where circumstances require it. Prevost v. Gratz, 6 Wheat., 481.

§ 256. Where there has been gross neglect and laches in seeking relief on the part of the cestui que trust for a breach of trust by the trustee, it is immaterial whether the trustee held a mere dry legal estate or whether his duties and responsibilities extended further. Hume v. Beale, 17 Wall., 336.

§ 257. Where it appears that all the grounds of action occurred between twenty and thirty years, and the alleged breach of trust took place thirty-seven years, before the institution of the suit, and the trustee is dead, a bill by the cestuis que trustent seeking to make the trustee's estate account for the breach of trust must be dismissed, although all the beneficiaries were women and the trustee a relative of theirs by marriage, and a lawyer. Ibid.

§ 258. A bill in equity to establish a trust will in case of long delay in bringing the action be dismissed on the ground of staleness, unless the trust be clearly established and the facts are shown to have been fraudulently and successfully concealed by the trustee from the knowledge of the cestui que trust. Badger v. Badger, 2 Wall., 87.

§ 259. In general length of time is no bar to a trust clearly established to have once existed, and where fraud is imputed and proved, length of time ought not to exclude relief. Prevost v. Gratz, 6 Wheat., 481.

§ 260. Where an estate is insolvent, and distribution of the assets is decreed under the law of Rhode Island, and afterwards new assets come into the hands of the administrator, more than sufficient to pay all the debts, a suit will lie against the administrator for payment in behalf of the creditors, notwithstanding the statute of limitations precludes an original suit against the administrator, for the new assets are a trust fund for the creditors, and the heirs can claim distribution only after all the debts are paid. Dexter v. Arnold, 3 Mason, 284.

§ 261. Length of time pleaded against the enforcement of a trust in real estate would avail if the trustee has been openly, publicly and constantly in possession, and denying the trust during twenty years. Hunter v. Town of Marlboro, 2 Woodb. & M., 168.

§ 262. Mere lapse of time is no bar to the enforcement of a subsisting trust, and time begins to run against a trust only from the time it is disavowed by the trustee and such avowal is made known to the cestui que trust. Oliver v. Piatt,* 3 How., 333.

§ 263. The statute of limitations does not operate in cases of trust. Walton v. Coulson, 1 McL., 120.

§ 264. The statute of limitations does not run against an established trust; nor will lapse of time, except under extraordinary circumstances, operate in a case of trust. Piatt v. Oliver, 2 McL., 267.

§ 265. Acquiescence by a cestui que trust in a purchase of the trust property by the trustee will not be presumed from lapse of time unless the cestui que trust is shown to have had notice of such purchase. Prevost v. Gratz,* Pet. C. C., 364.

§ 266. Lapse of time is no defense where there is an unexecuted trust to pay debts which are unpaid in point of fact. Bank of the United States v. Beverly, 1 How., 134.

§ 267. In Wisconsin bills to enforce a trust not cognizable at common law must be brought within ten years after the cause of action accrued. Cleveland Ins. Co. v. Reed, 24 How., 284. § 268. resulting and implied trusts.-A. devised to B., as residuary legatee, certain real property subject to the payment of a certain sum to C., in trust for the support of three of his children, said sum to be paid to C. three years after the death of A. B. never paid the sum to C. in accordance with the terms of the will, but enjoyed exclusive possession of the estate for thirty years, when he became insolvent, and being adjudicated a bankrupt the estate in question was sold by his assignee. Held, that if B. ever became a trustee at all, it was not as direct trustee, but as an implied or resultant trustee, in which case the statute of limitations would apply, so as to bar any claim for the sum which should have been paid to C. as trustee. In re O'Neale,* 6 N. B. R., 425.

§ 269. In cases of constructive trusts arising out of the fraud of the trustee the length of time after which equity will relieve is left to the equitable discretion of the court and depends

on the circumstances of each case. The lapse of nine and eleven years held not to be a bar. Manning v. Hayden,* 5 Saw., 360.

§ 270. It is a rule of law in Pennsylvania that a resulting trust in land, if not sought to be enforced for a period of twenty-one years, and is not re-affirmed or continued, will, under ordinary circumstances, be extinguished. This rule is especially applicable where the party having the legal title has, during the period of twenty-one years, been in notorious and adverse possession, paying the taxes and exercising all the usual rights of ownership, and his title has, for the whole period, been on record in the proper office. King v. Pardee, 6 Otto, 90. § 271. Within what time a constructive trust will be barred must depend upon the circumstances of the case, and these are always examinable. Michoud v. Girod, 4 How., 509. $ 272. Parties, proper and necessary. Where a bank had become insolvent and had made an assignment of its effects to trustces for the benefit of creditors, the bank was allowed to sue in its own name, at the instance and for the benefit of the creditors, and the case was the same as if the law permitted the suit to be brought, and the same had been brought, in the name of the trustees. Lyman v. Bank of the United States, 12 How., 225.

§ 273. The N. & B. Railroad made a deed of trust of all its property to trustees for the payment of certain bonds issued. Subsequently the N. & B. road united with the B. & H. road, the consolidated road being known by the latter title, and new trustees were appointed for the new road. On bill filed by bondholders of the N. & B. road against both sets of trustees to recover the amount of the bonds, depose the new trustees. for the appointment of a receiver and new trustees, held, (1) that the trustees of the N. & B. road were the proper parties to seek redress of the B. & H. road for the alleged grievances; (2) that if such trustees had abandoned their trust, or if they had been guilty of misconduct, the proper remedy for complainants was to take appropriate measures to have them removed and others appointed in their places. Sevens v. Eldridge, 4 Cliff., 348.

$274. When an action is in its origin instituted in the name of A., for the use of B., the cestui que use is, by the law of Maryland, regarded as the real party to the suit. Gaither v. The Farmers' & Mechanics' Bank of Georgetown, 1 Pet., 37.

$275. J. deposited certain money in a bank, causing it to be entered that he deposited the sum in trust for C. J., however, kept the deposit book, without which the money could not be drawn, and never notified C. that the money had been deposited for his benefit. Held, after J.'s death, that his administrators and not C. were entitled to recover the amount from the bank. Stone v. Bishop,* 4 Cliff., 593.

$276. Where one procures insurance on property held by him in trust, and pays the premium as such trustee, and by the express terms of the policy the insurance money is made payable, in case of loss, to the cestui que trust, and it does not appear that the trustee had any interest in the insurance, or any authority from the cestui que trust to adjust the loss, or to receive the insurance money, the trustee cannot bring the action to recover it. Brown v. Hartford Fire Ins. Co.,* 11 Law Rep. (N. S.), 726.

§ 277. Where there are several trustees who are all implicated in a common breach of trust for which the cestui que trust seeks relief in equity, he may bring his suit against all of them, or against any one of them separately, at his election, the tort being treated as several as well as joint. Heath v. Erie R'y Co., 8 Blatch.. 347.

§ 278. There are some cases where a trustee may sue without naming the cestui que trust, but the latter must be named where the object is to divest them of title. In general, cestuis que trust must be made parties. Piatt v. Oliver, 2 McL., 267.

$279. In a proceeding in equity to foreclose a mortgage given by the trustee, the cestuis que trust are necessary parties. Ibid.

§ 280. A decree of foreclosure in a suit in which known cestuis que trust are not joined as parties is void as to them. Oliver v. Piatt,* 3 How., 333.

$281. Pleading. At common law a trust in real property could have been declared or created by parol. Since the passage of statutes requiring such trusts to be in writing, it has been uniformly held that the statute did not change the rules of pleading, but only introduced a new rule of evidence. Hence it is still competent to declare or count upon contracts within the statute according to their legal effect without alleging that they were in writing. If the defendant wishes to take advantage of the statute he must plead it. Lamb v. Starr, Deady, 350. § 282. In case of delay in filing a bill to establish a trust, the complainant, in order to avoid the objection of stale demand, should set forth in his bill specifically what were the impediments to an earlier prosecution of his suit, how he came to be so long ignorant of his rights, and the means used by the respondent to fraudulently keep him in ignorance, and how and when he first came to a knowledge of his rights. Badger v. Badger, 2 Wall., 87.

§ 283. The statute of frauds, which requires that a declaration of trust in lands should be in writing, can only be pleaded by him who has the legal estate, and is sought to be charged with a trust. Oneale v. Caldwell, 3 Cr. C. C., 312.

§ 284. Evidence – Burden of proof.— An acknowledgment by a beneficiary of a trust, secured by a bond, of part payment of the fund, can be given in evidence. Campbell v. Hamilton, 4 Wash., 93.

§ 285. To establish the existence of a trust the onus probandi lies on the party who alleges it. Prevost v. Gratz, 6 Wheat., 481.

§ 286. Miscellaneous.-A suit in chancery by one who has the prior equity against him who has the eldest patent is in its nature local; and if it be a mere question of title must be tried in the district where the land lies; but if it be a case of contract, trust or fraud it is to be tried in the district where the defendant may be found. Massie v. Watts, 6 Cr., 148.

§ 287. A merchant who indorses the bills of another upon the guaranty of a third cannot, upon the insolvency of the principal debtor and of the guarantee, resort to a trust fund created by the principal debtor for the indemnity of the guarantee for the amount which the guarantee should pay. But the person for whose benefit a trust is created, who is to be the ultimate receiver of the money, may sustain a suit in equity to have it paid directly to himself. Russell v. Clark, 7 Cr., 69.

VII. RIGHTS AND REMEDIES OF CESTUI QUE TRUST.

SUMMARY — Right to dispose of estate, § 288.— No disseizin of a trust, § 289.— One owner acquiring a tax title, § 290.—Statute of limitations, § 291.

§ 288. A cestui que trust may lawfully dispose of his trust estate although the title is contested by the trustee. So long as the trust continues equity treats the possession of the trustee as the possession of the cestui que trust. Baker v. Whiting, §§ 292–301.

§ 289. There can be no disseizin of a trust, although the exercise of an adverse possession for a great length of time may in equity bar or extinguish the trust. Ibid.

$290. If one of several owners of undivided lands who is acting as the agent of the others acquires a tax title he will be held to hold it in trust for the others. Ibid.

§ 291. In case of a trust of lands nothing less than the period prescribed by the statute of limitations will be sufficient to bar the recovery of the equitable estate. Ibid. [NOTES.-See §§ 302-344.]

STATEMENT OF FACTS.- This was a bill in equity, filed by plaintiffs, to set aside the conveyances by defendants of certain lands inherited from the father of Mrs. Baker. The bill charged a combination between Peavy, Whiting, Jr. and Sr., Talbot and Morse, and others unknown, and that they entered into said tracts of land and disseized the complainants, under the pretext that the said lands were legally assessed for public taxes and duly advertised and sold to said Whiting, Sr., as the highest bidder, and that the said owners neglected to redeem them according to the laws of Maine, whereby the said Whiting, Sr., lawfully became the absolute owner thereof in fee-simple: whereas the contrary is true, and no such tax was lawfully assessed nor was any sale thereof lawfully made. The bill charged other things, which will duly appear in the opinion, and concluded with the usual prayer for general relief. The answer of defendants admitted the title to have originally been in Mrs. Emily Baker, but alleged that it was defeated by a tax sale on August 7, 1821, and further denied all agency for complainants, or for Tidd, or for Stimpson (who had conveyed his interest to Mr. Baker, one of the plaintiffs). The defendant, Whiting, Sr., further stated that he had purchased said lands at a tax sale by one Enoch Hill, subject to the legal right of redemption, but that the lands were never redeemed, and he became the owner in fee-simple of said lands. Answers were also put in by Morse, Talbot and Peavy, stating that they had purchased their interests in said lands from Whiting, Sr. A cross-bill was also filed by Whiting, Jr., Morse and Talbot, charging combina

tion to purchase stale titles, and praying for a dismissal of the original bill, a perpetual injunction in relation to the premises, and for further relief. The answer to the cross-bill denied everything charged, and asked for an injunction restraining Whiting from cutting and carrying away timber from the land aforesaid.

Opinion by STORY, J.

Several objections have been taken to the present bill at the hearing, some of which involve matters of fact and others points of law. I will briefly state the opinion of the court upon all the matters suggested at the argument. The first question is whether the plaintiffs have shown any title whatsoever to maintain the present bill; or, in other words, whether they have shown any interest or estate in the land in controversy. The bill states that Baker and his wife are entitled in her right to one-sixth of one undivided seventh part of the premises, and that Baker, in his own right, is entitled to one moiety of the premises in virtue of his purchase and assignment from Stimpson, who was owner thereof. Mrs. Baker inherited from her father, Jacob Tidd, one-seventh of the premises, and, by the death of her brother, William Dawes Tidd, oneseventh of one-seventh; he dying after he came of age and his mother being entitled to share with his brothers and sisters. By the deed of Baker and his wife to Howe, in December, 1835, they released their right and title to four sixth parts of the premises; and the answer to the cross-bill insists that she never intended by that deed to part with the share derived from her brother. Be this as it may, it is very clear that she has not conveyed it by this deed, since her right is still retained to the remaining two-sixths of the premises. So that Baker and his wife are fully entitled to the whole share derived from her brother. The bill is, therefore, maintainable by the plaintiffs in her right, so far as this interest goes.

§ 292. A release for a valuable consideration, and meant to convey all the party's right and title, if it cannot take effect as a release may be construed, in furtherance of the intention of the parties, as a bargain and sale, etc.

As to the title derived by Baker by the deed of release from Stimpson of one moiety of the premises, as the release was for a valuable consideration and meant to convey all Stimpson's right and title, if it cannot take effect as a release it may be construed, in furtherance of the intention of the parties, as a bargain and sale or other appropriate conveyance, ut res magis valeat, quam pereat. This doctrine I take to be now well settled at law. But in equity there can be no question that it is fully established. The case of Doungsworth v. Blair, 1 Keen, 801, is directly in point, if, indeed, so plain a principle required any authority to support it. In that case it was held that an indenture which was intended to be an indenture of release, but could not operate as such, might, for the purpose of carrying into effect the real intention of the parties, if there was a proper consideration, be construed as a covenant to stand seized. The case of a valuable consideration is far stronger. See, also, 1 Story, Eq. Jur., § 168.

The main objection, however, taken to the operation of this deed is that, at the time of this conveyance by Stimpson to Baker, the defendant was in full possession and seizin of the premises, claiming them in his own right, and, of course, that Stimpson was then disseized, and the conveyance to Baker was void under the operation of the common law relative to maintenance and champerty and the statute of 32 Henry VIII., chapter 9, made in aid thereof. This statute prohibits, under penalties, the buying or selling of any pretended right

or title to land, unless the vendor is in actual possession of the land or of the reversion or remainder. The object of the statute as well as of the common law was, doubtless, to prevent the buying up of controverted legal titles, which the owner did not think it worth his while to pursue, upon mere speculation; so that, in fact, it might properly be deemed the mere purchase of a law suit. 4 Black. Com., 135, 136; Hawk. Pl. of the Crown, b. 1, ch. 83, secs. 1-20; id., b. 1, ch. 84, secs. 1-20; id., b. 1, ch. 86, secs. 1, 4-17.

§ 293. The old cases upon the subject of champerty went further than would be sustained by the courts of equity now.

The old cases upon this subject have gone a great way, farther, indeed, than would now be sustained in courts of equity, which have broken in upon some of the doctrines established thereby.

§ 294. A cestui que trust may dispose of his trust estate.

But be this as it may, neither the common law nor the statute applies to a trust estate actually existing, either by the acts of the parties or by construction of law. Thus a cestui que trust may lawfully dispose of his trust estate, notwithstanding his title is contested by the trustee; for the latter can never disseize the former of the trust estate; but, so long as it continues, the possession of the trustee is treated, at least in a court of equity, as the possession of the cestui que trust.

§ 295. There can be no disseizin of a trust, though the exercise of an adverse possession for a great length of time may in equity bar the trust.

There can be no disseizin of a trust, although the exercise of an adverse possession for a great length of time may, in equity, bar or extinguish the trust. § 296. Equity will deem any purchase by an agent a purchase for his principals.

The whole question in the present case turns upon this: whether the defendant Whiting, at the time of his purchase of the premises at the sale for taxes, in August, 1821, was the agent of the heirs of Jacob Tidd, of Stimpson and of other proprietors of their undivided shares in the premises. If he was, then, upon the acknowledged principles of courts of equity, he, as an agent, could not become a purchaser at the sale for himself; but his purchase must be deemed a purchase for his principals. It matters not whether, in such a case, the defendant intended to purchase for himself, and on his own account, or not. § 297. The conditions on which an agent might become a purchaser. For courts of equity will not tolerate any agent in acts of this sort, since they operate as a virtual fraud upon the rights and interests of his principals, which he is bound to protect. He was bound, as their agent for the premises, to give them notice of the intended sale, and to save the property from any sacrifice; and until he had openly, and notoriously, after full notice to the principals, discharged himself from his agency, he could not be permitted, in a court of eqiuty, to become a purchaser at the sale. If, indeed, as there is much reason to believe, at the time of the sale, he had funds of his principals in his own hands sufficient to meet the taxes; and a fortiori if he endeavored to dissuade or to prevent other persons from becoming bidders at the sale, as some of the evidence states, his conduct was, supposing him to be agent, still more reprehensible.

§ 298. If Whiting was agent at the time he purchased the lands then the conveyance of Stimpson to Baker is valid.

The validity of the conveyance, then, from Stimpson to Baker depends upon the fact whether the defendant Whiting was or was not the agent and mere