3 & 4 Will. 4, c. 27, s. 25. to secure legacies, to secure annuities. Sect 25 qualifies sect. 42 when land is vested in trustees upon express trust, to secure annuities, ment of the debts was part of the trusts to be performed. (Hunt v. Bate- post.) A testator, who died in 1795, devised his real estates to trustees to sell, and out of the interest of the proceeds, and out of the rents of the estates, until they should be sold, to pay certain annuities. No payment had been made in respect of any of the annuities for more than twenty years before the bill was filed in 1837 for executing the trusts of the will, and for raising the arrears of the annuities by sale of the testator's real estates. The trustees had entered into possession of the estates on the testator's death, and the surviving trustee continued in possession until about eleven years prior to the filing of the bill. The defendant relied on the 42nd and 40th sections of this act, and Sheppard v. Duke, 9 Sim. 567. But the court held, that the plaintiff's right to the annuities was not barred by this statute, for the trustees were trustees to pay the annuities, and their possession of the estates, out of which the annuities were directed to be paid, continued down to the year 1826; therefore it was plain that the objection to the bill founded on the Statute of Limitations could not be supported. (Ward v. Arch, 12 Sim. 472.) This section also qualifies the provisions of sect. 42 (post), in the recovery of arrears of annuities, of arrears of interest on legacies, and of arrears of interest on a mortgage, when secured respectively by an express trust of realty. A testator devised his real estate to trustees upon trust to pay certain annuities, which were to be increased in certain events, and a term of ninety-nine years was vested in other trustees for better securing the annuities, and, subject thereto, the estates were limited to the testator's sons for life, with divers remainders over. The first tenant for life entered into possession, and soon afterwards the events happened by which the annuities were to be increased. The original annuities were regularly paid, but no payment was made in respect of the increased annuities. After the death of the tenant for life, and much more than six years after the period when such increased payments ought to have been made, a bill was filed by one of the annuitants to have the whole arrears raised out of the estate of the tenant for life, and by sale or mortgage of the term. It was held, that the term being a subsisting term on which the trustees might obtain possession, the case was within the saving of this section, and that the annuitant was not barred by the operation of the 42nd section of this act from recovering the entire arrears. (Cox v. Dolman, 2 D., M. & G. 592; 17 Jur. 97; 22 Law J., Chanc. 427.) In 1824, A., and B. as his surety, covenanted to pay an annuity for ninety years, and A. granted lands to which he was entitled in remainder expectant upon the decease of the survivor of two tenants for life to a trustee for 500 years, upon trust, in case the annuity should be in arrear for a month, and either before or after the decease of the surviving tenant for life, to sell for the purpose of raising the arrears of the annuity and securing future payB. became a bankrupt in 1827, A. in 1829. The last payment in respect of the annuity was made in 1831. Upon a bill filed by the annuitant, in 1854, one of the life estates still subsisting it was held, that the ments. plaintiff was entitled to have the lands sold for the residue of the term 3 & 4 Will. 4, according to the trusts, and to payment of all arrears. (Snow v. Booth, 2 K. & J. 132; 8 D., M. & G. 69.) A conveyance of real estate to trustees upon trust, in the first place, to secure payment of an annuity, is within this section. An owner of a reversionary interest in real estates, for the purpose of better securing an annuity, granted the estates to trustees upon trust, to permit him to hold and enjoy the same until default should be made in payment of the annuity; and in case of default, upon trust to sell the estates, and after payment of the costs attending the sale, to pay the arrears of the annuity, and invest the residue to meet the growing payments of the annuity, and subject thereto in trust for the grantor, his executors, administrators, and assigns absolutely it was held, that an express trust was created for the benefit of the annuitant within this section, and that he was entitled to recover the whole of the arrears of the annuity as against the grantor and the subsequent incumbrancers, and was not limited to six years by-the 42nd section of this act. (Lewis v. Duncombe, 29 Beav. 175. See Round v. Bell, 30 Beav. 121.) c. 27, s. 25. A testator, who died in 1823, directed the trustees of his will to raise a to secure legacies, legacy by sale of his real estate it was held, that the legatee was not barred by the 42nd section of this statute from claiming interest on the legacy from the end of the first year after the testator's death. (Gough v. Bult, 16 Sim. 323.) gage debts. Where a mortgage is secured by a term in a trustee, the mortgagce in to secure mortforeclosing can have a general account of arrears of interest. (Shaw v. Johnson, 1 Dr. & Sm. 412.) "The words express trust' in this statute are used by way of opposition to trusts arising by implication, trusts resulting, or trusts by operation of law. Two things must combine here; there must be a trustee with an express trust, and an estate or interest in lands vested in the trustee, and which therefore the trust must effect." (Per Westbury, C., Dickenson v. Teasdale, 1 De G., J. & S. 59.) Where an annuity is given by will, and the real estate of the testator is charged with the payment of it, and then the estate is simply devised charged with the payment of the annuity, Wigram, V.-C., was of opinion, that it is not the case of an express trust within the 25th section of the statute. (Francis v. Grover, 5 Hare, 39.) A devise of realty subject and charged with legacies does not create an express trust in favour of the legatees within this section. (Proud v. Proud, 32 Beav. 234.) A vendor's lien is not an express trust within this section. (Toft v. Stephenson, 7 Hare, 1; and see Dundas v. Blake, 11 Ir. Eq. R. 138; Henderson v. Atkins, 7 W. R. 387; 28 L. J., Ch. 913.) Where a testator charged his real estates with his debts, and he devised his C. plantation in trust to pay his debts, it was held, that as to the C. plantation a trust had been created in favour of the creditors, but that as to the other real estates they had a mere charge. (Jacquet v. Jacquet, 27 Beav. 332;) see further, Lewin on Trusts, 634, 5th ed.; and Locking v. Parker, 20 W. R. 737. What is an express trust of land to secure payment of money, In the case of a direct or express trust, as where an estate is conveyed to Time no bar bethe use of A. and his heirs in trust for B. and his heirs, no time, as tween trustee and between the trustee and cestui que trust, can operate as a bar to the cestui que trust. equitable right of the latter; (Barnard, C. R. 449; Townshend v. Townshend, 1 Br. C. C. 551;) for between him and his trustee there is no adverse possession. Where there is a trust created by the act of the parties, no Where trustee in time will be a bar, for the possession of the trustees is the possession of the possession. cestui que trust, and if the only circumstance is that he does not perform his trust, his possession operates nothing as a bar, because his possession is according to his title. (Hovenden v. Lord Annesley, 2 Sch. & L. 633.) In the case of a strict trustee, it is his duty to take care of the interest of his cestui que trust, and he is not permitted to do anything adverse to it; a tenant also has a duty to preserve the interests of his landlord; and many acts therefore of a trustee and a tenant, which if done by a stranger would be acts of adverse possession, will not be so in them, from its being their duty to abstain from them. (Per Lord Eldon, 2 Jac. & W. 190.) A trustee, whose duty it was to sell certain estates, and pay off a mortgage 3 & 4 Will. 4, c. 27, s. 25. Where cestui que and other incumbrances on them, and retain a debt due to himself, and until the sale to keep down the interest on the charges, and pay the surplus over, but who did not sell, but took a transfer of the mortgage, and remained in possession for twenty-two years, during the first ten of which the interest exceeded the rents, was decreed to reconvey the estates. (Latter v. Dashwood, 6 Sim. 462. See also Faussett v. Carpenter, 5 Bligh, N. S. 75.) As to the effect of fines formerly between trustee and cestui que trust, see Gilb. Ch. 62; Bell v. Bell, 1 Ll. & G. temp. Plunket, 59; Earl Pomfret v. Lord Windsor, 2 Ves. sen. 472, 481; Reynolds v. Jones, 2 Sim. & Stu. 206; 1 Sand. on Uses, 291, 3rd ed.; 5 Cruise Dig. 208-213. Where there is no doubt as to the origin and existence of a trust in respect of property, of which, for a long series of years, the trustees have been in the beneficial enjoyment, lapse of time is no bar to the recovery of the property by the cestui que trust; but where any doubt exists, and it is possible to reconcile such enjoyment with the facts of the case, the utmost regard is then to be paid to the length of time during which there has been an enjoyment of the property inconsistent with the supposed trust. (Att.-Gen. v. Fishmongers' Co., 5 Jurist, 693; 5 M. & Cr. 16.) Where estates were devised to trustees upon trust to sell and to pay debts, and subject thereto for the testator's infant children, and the surviving trustee retained possession of one of the estates in satisfaction of debts which he alleged himself to have paid, the testator being insolvent : on a bill for an account and conveyance of the estate, by one of the children and the representatives of another child, forty-five years after the testator's death, stating that they had recently discovered the facts, special inquiries were directed to ascertain whether they had any notice of the circumstances, whether they had in any manner released, and whether the trustee had advanced money to the amount of the value of the estate. (Chalmer v. Bradley, 1 Jac. & Walk. 51, where numerous cases on this subject are cited.) Trustees in possession of land paid the rents by mistake for more than twenty years to a person not entitled; but it was held that the right of the actual cestui que trust was not barred. (Lister v. Pickford, 34 L. J., Ch. 582; 13 W. R. 827.) In general the possession of the cestui que trust is not adverse against trust in possession. the trustee if the possession of the former is consistent with the terms of the deed and the object of the trust. (Keene v. Deardon, 8 East, 248; Smith v. King, 16 East, 283.) A cestui que trust who is let into possession of the trust estate by the trustee becomes tenant at will to the latter, and while the estate at will remains the statute does not operate. (Garrard v. Tuck, 8 C. B. 231.) Articles of agreement for a lease for ninetynine years from 1768 (which was never actually executed) were entered into, and the premises occupied pursuant to the articles from 1771 to 1867: held, that an actual direct trust was constituted between the owners of the fee, and those who held under the articles; and that the cestui que trust being in possession, the estate of the trustees was not destroyed by lapse of time. (Drummond v. Sant, L. R., 6 Q. B. 763.) On 25th June, 1814, Sir George Bowyer granted six annuities, payable out of his life interest in real estate. On the 28th June, 1814, he appointed receivers of the estate, and directed them to apply the rents in payment of such annuities, and of any other annuities he might thereafter grant. By deed of the same date he vested his life estate in a trustee upon trust, if default should be made in payment of any of the annuities, or of any other annuities to be granted by him, to sell the real estate, and to apply the proceeds in payment of such annuities. On the 30th August, 1814, he granted three other annuities charged on the same estate; and on the same day he executed a deed, directing the receivers and trustee to pay the nine annuities. Notice of the last-mentioned deed was served on the receivers and trustee immediately after its execution. The rents of the estate were received by one of the receivers, and applied in payment of the first six annuities, but they were insufficient to pay the three latter annuities, and for forty years no payment had been made in respect of these three annuities. On a bill filed in 1855, by persons interested in those three c. 27, s. 25. annuities, it was held (per Turner, L. J., confirming the decision of 3 & 4 Will. 4, Romilly, M. R., 23 Beav. 609; 3 Jur., N. S. 968, sed dubitante Knight Bruce, L. J.), that the deed of direction made the receivers and the trustee express trustees for the three annuitants, subject to the rights of the six annuitants. (Knight v. Bowyer, 2 De G. & J. 421; 4 Jur., N. S. 569; 28 L. J., Chan. 521.) And that in cases of express trust, the Statute of Limitations is no bar to a demand of a cestui que trust, though the other cestui que trusts have for more than twenty years received from the trustee the whole of the rents to the exclusion of the claimant. (Knight v. Bowyer, 2 De G. & J. 421.) But where a legal estate was vested in trustees on trust for five tenants in common, and the trustees not acting, the whole rents were received by some of the tenants in common, not under the trustees, but in opposition to their claim; those who have received the whole rents in spite of the trustees acquired a title against the claim of another tenant in common who had been out of such receipt. (Burroughs v. M'Creight, 1 Jones & L. 290.) The rule that a trust is not barred by length of time applies only as between cestui que trust and trustee, and not between cestui que trust and trustee on one side, and strangers on the other; for that would be to make the statute of no force at all, because there is hardly an estate of consequence without such a trust, and so the act would never take effect. Therefore, where a cestui que trust and his trustee have been both out of possession for the time limited, the party in possession has a good bar against both. (Per Lord Hardwicke, in Llewellyn v. Mackworth, Barnard, C. R. 445; 15 Vin. Abr. 125, n. to pl. 1; and see Townshend v. Townshend, 1 Br. C. C. 550; Clay v. Clay, 3 Br. C. C. 639, n.; Ambl. 645; Hercy v. Ballard, 4 Br. C. C. 469; Harmood v. Oglander, 6 Ves. 199; 8 Ves. 106; Horenden v. Lord Annesley, 2 Sch. & Lef. 629; Sugd. V. & P. 610-612, 11th ed.) On the question whether, when a stranger has acquired a title by possession against a trustee, the cestui que trust is also barred, see Scott v. Scott, 4 H. L. Ca. 1065, discussed in Darb. & Bos. Stat. Lim. 329–333. where stranger In possession time lars both trustee and cestui que trust. The 25th section, providing for express trusts, renders lapse of time un- Where trustee important in all cases within the section, that is, between the cestui que alienates for value. trust and his trustee, until the trust is disturbed, and that disturbance can only be effected by such a denial of the trust as takes place when the trustee sells to a third party for valuable consideration the property so held by him in trust. (Law v. Bagwell, 4 Dru. & War. 398.) In such a case a lapse of twenty years from the date of the conveyance will bar the cestui que trust, but it seems that time will not commence to run if the rights of the cestui que trust are reversionary, or if he be under disability at the date of the conveyance. (Thompson v. Simpson, 1 Dru. & War. 489; Att.-Gen. v. Magdalen College, 6 H. L. Ca. 215.) statute. Before the stat. 3 & 4 Will. 4, c. 27, time did not run against charities in Charities. a court of equity, neither were charities bound to the times expressed in the Law before the Statutes of Limitations, 32 Hen. 8, c. 2, and 21 Jac. 1, c. 16. (Duke, 161; Att.-Gen. v. Mayor of Coventry, 3 Madd. 368; 2 Vern. 399; Att.-Gen. v. Christ's Hospital, 3 My. & K. 344; Att.-Gen. v. Mayor of Bristol, 2 Jac. & W. 321; Att.-Gen. v. Poulden, 8 Sim. 472; Att.-Gen. v. Smythies, 2 My. & K. 749; Christ's Hospital v. Grainger, 1 Hall & T. 533; 1 Mac. & G. 460; Shelford on Charities, p. 563.) At law the old Statute of Limitations operated against all claimants, although they held in trust for charities; but in the Court of Chancery, unless in the case of a purchaser for value, they had no operation. (43 Eliz. c. 4; Sugd. V. & P. 944, 945, 11th ed.) The stat. 3 & 4 Will. 4, c. 27, does not contain any saving in favour of charities. A simple gift to a charity, without any express trust, is within the bar Present law. created by sect. 24. But property may be given upon express trust for a express trust. charity, so as to fall within the exception created by sect. 25. Sir E. Sug- Property given to den, L. C., said, it appeared to him, that unless the case of a charitable charities without trust can be brought within the saving of the 25th section, which operates between trustee and cestui que trust, it would fall within the general prohibition of the 24th section; for charities were only saved in equity from 3 & 4 Will. 4, c. 27, s. 25. Express trusts for charities. Purchasers with trusts. the operation of the former statutes, as trusts, although highly favoured ones; and now all trusts are barred by section 24 unless saved by section 25, and the court is not at liberty to introduce an exception into the act, which the legislature, providing generally for all trusts, have not thought it proper to enact. (Commissioners of Donations v. Wybrants, 2 Jones & L. 182, see pp. 194-196; Att.-Gen. v. Magdalen College, Oxford, 18 Beav. 223, 238.) The stat. 9 Geo. 2, c. 36, not extending to Ireland, a testator by his will of the 4th of June, 1812, devised a rent-charge as a salary for a schoolmaster, to be appointed by the owner for the time being of the estate on which the rent was charged. A schoolmaster was never appointed. In 1839, an information was filed to carry the said trust into execution. It was held, that the Statute of Limitations could not run until a schoolmaster was appointed. (Att.-Gen. v. Persse, Dru. & War. 69.) Property given upon express trust for a charity is within section 25. (Commissioners of Donations v. Wybrants, 2 J. & Lat. 182.) Where the attorney-general, having no independent rights of his own, stands only in the same situation as those who are entitled to the benefit of a charity, if they are barred by lapse of time, he is equally barred. Lands were given for the benefit of the poor of two parishes, and were placed under the management of the rectors and churchwardens of the two parishes, who, with the consent of the vestries, might lease them for ever to a college subject to a fixed rent-charge. Above sixty years after a lease (the fairness of which at the time of its execution was not impeached) the attorney-general filed an information against the lessees, praying that it might be cancelled: it was held, that the real plaintiffs in the suit were the poor of the two parishes, that they were in the situation of a cestui que trust, that the suit by information of the attorney-general (who had no independent rights) was a suit by them, that they could not maintain such a suit unless against their trustees, except within twenty years; that it was not such a suit, but was a suit againt purchasers for value, and therefore that it was barred. (Att.Gen. v. Magdalen College, Oxford, 18 Beav. 223; 6 H. L. C. 189.) The decision in this case was held to govern a case where charity land had not been aliened in fee, but had been held under a lease for 500 years at a rent which had been regularly paid. (Att.-Gen. v. Davey, 4 De G. & J. 136; 19 Beav. 521; Att.-Gen. v. Payne, 27 Beav. 168.) It was formerly held that length of time would not protect a purchaser notice of charitable with notice of charitable trusts. (Att.-Gen. v. Christ's Hospital, 3 M. & K. 344. See Att.-Gen. v. Mayor of Bristol, 2 Jac. & W. 321; Att.-Gen. v. Poulden, 8 Sim. 472.) It seems now that time will commence to run in his favour from the date of the conveyance. (Att.-Gen. v. Magdalen College, Oxford, 6 H. L. C. 189. See Att.-Gen. v. Flint, 4 Hare, 147.) But where premises subject to charitable trusts, constituted by deed in 1726, were conveyed in 1819 to E. D. for valuable consideration, with notice of the deed of 1726: it was held, on information filed in 1870, by the attorneygeneral against the representatives of E. D., praying that the trusts of the deed of 1726 might be carried into execution, that E. D. having taken the premises as an express trustee with notice of the trusts of 1726, the claims of the charity were not barred by the statute as against his representatives. (Att.-Gen. v. Davis, 18 W. R. 1132.) Account of rents against trustees for charities. In cases of fraud, no time shall run whilst the fraud remains concealed. As to the length of time during which an account of rents will be directed in the case of trustees for charities, see the note to section 42, post. Fraud. 26. In every case of a concealed fraud the right of any person to bring a suit in equity for the recovery of any land or rent of which he, or any person through whom he claims, may have been deprived by such fraud, shall be deemed to have first accrued at and not before the time at which such fraud shall, or, with reasonable diligence, might have been first |