has access to the correspondence between the land-owner and the broker. He would, if he purchased, become a trustee of the vendor, and be accountable for the value of the land. So also with the agent or solicitor of the vendor, though such solicitor be employed by a mortgagee under a power of sale mortgage.2 But there is no objection beyond the general suspicion resting upon such a transaction, in an administrator, for instance, immediately after selling land, becoming a purchaser of his own vendee, if such purchase was independent of the sale made by him in his fiduciary character.3 But such a sale is only voidable and not void. Nor can it be avoided by any one but the cestui que trust or his heirs. And a forbearance to exercise this right for a long time, is held to be equivalent to a ratification of the sale. In ordinary cases of trust other than for the sale of land, a trustee is not precluded from purchasing the interest of his cestui que trust if done bona fide, though as a transaction, it is always looked upon by equity with great jealousy." So where the owner of property confessed judgment to A, in order to have the property sold, and out of the proceeds to pay debts, and the officer sold it on execution, it was held that A might become a purchaser at such sale, since as no title passed to him by the judgment he did not become a trustee, and the sale was made by the officer.7 17. Although it is so often laid down by courts and writers that cestuis que trust have a right to compel their trustees to suffer them to Occupy the trust estates, and to require of them to make conveyances thereof as the cestuis que trust shall direct, and it has accordingly been held, that a sale by a trustee, by consent of a cestui que trust, pass a good title, it is apprehended that the general proposition can be true to its full extent, only in respect to simple or what are sometimes called dry trusts, where the cestui que trust would is entitled to the exclusive *benefit of the land and the [*210] 1 Gardner v. Ogden, 22 N. Y. 327; ante, p. *177. Downes v. Grazebrook, 3 Meriv. 209; Twining v. Morrice, 2 Bro. C. C. 326. 3 Wortman v. Skinner, 1 Beasley (N. J. ), 358. 5 6 Painter v. Henderson, 7 Penn. St. 48. Mitchell v. Berry, 1 Met. (Ky.); 602; ante, p. *177. Lewin, Trusts, 2d 363; Costen's Appeal, 13 Penn. St. 292; Allen v. Bryant, 7 Ired. 276; Bryan v. Duncan, 11 Ga. 67; Jones v. Smith, 33 Miss. 215; ante, p. *177. Sheldon v. Sheldon, 13 Johns. 220. 1 Cruise, Dig. 448; Lewin, Trusts, 2d ed. 470; Hill, Trust. 278. 8 9 Arrington v. Cherry, 10 Ga. 429. trustee is, by nature of the trust, merely passive in respect to it.1 The cases above referred to are those where the pernancy of the profits, and the disposition of the estate, the jus habendi and the jus disponendi, are intended to be in the cestui que trust, for when other parties are interested in the estate, it rests in the discretion of the court whether the actual possession shall remain with the cestui que trust or the trustee; and if possession be given to the cestui que trust, whether he shåll not hold it under certain conditions and restrictions.2 18. Where it is a simple or dry trust, courts of equity will give the cestui que trust possession, or require the trustee to convey the estate as the cestui que trust may direct. But a trustee can only be divested of his right of possession by a decree of a court of equity.* In a court of law, on the contrary, a cestui que trust is a tenant at will or at sufferance of his trustee, and the latter may recover against him in an action of ejectment for the possession of the premises, and he will not be admitted to deny his trustee's title. Nor can a cestui que trust maintain such an action in his own name against any other tenant. If he sues at all it must be in the name of his trustee, even though the trust be that of a mortgage. The law in some of the States admits of an exception to this rule, so far that if entitled to the enjoyment of the estate, a cestui que trust may maintain ejectment in his own name. 1 Lewin, Trusts, 2d ed. 470; 1 Cruise, Dig. 449; Hill, Trust. 273, 279; Battle v. Petway, 5 Ired. 576; Vaux v. Parke, 7 W. & S. 19. 2 Lewin, Trusts, 2d ed. 470, 480; Hill, Trust. 279; Battle v. Petway, 5 Ired. 576; Williamson v. Wilkins, 14 Ga. 416. 8 Hill, Trust. 278; Lewin, Trusts, 2d ed. 470; Stewart v. Chadwick, 8 Iowa, 469. Guphill v. Isbell, 1 Bail. 230; Presley v. Stribling, 24 Miss. 527. Ante, Vol. I. p. *377; Matthews v. Ward, 10 Gill & J. 456; Jackson v. Pierce, 2 Johns. 226; Beach v. Beach, 14 Vt. 28; Gunn v. Barrow, 17 Ala. 743; Lewin, Trusts, 2d ed. 476. See Hill, Trust. 274, Wharton's note, for the American cases on the question who shall bring actions in regard to the legal estate; Jackson v. Van Slyck, 8 Johns. 487; Jackson v. Deyo, 3 Johns. 422; Goodtitle v. Jones, 7 T. R. 47; Doe v. Wroot, 5 East, 132; Roe v. Read, 8 T. R. 123; Norton v. Leonard, 12 Pick. 152; Somes v. Skinner, 16 Mass. 348. So the trustee may have waste against his cestui que trust. Woodman v. Good, 6 W. & S. 169; White v. Albertson, 3 Dev. 241; Freeman v. Cooke, 6 Ired. Eq. 373. 6 In Mississippi, where a trust has been satisfied. Brown v. Doe, 7 How. (Miss.), 181. The contrary is held in Ohio. Moore v. Burnet, 11 Ohio, 334. But in Pennsylvania the cestui que trust may sue if entitled to the enjoyment of the estate. Presbyterian Cong. v. Johnston, 1 W. & S. 9; School Directors v. Dunkleberger, 6 Penn. *19. If the trust be a special one, the trustee may exer- [*211] cise a proprietary power and control over the trust estate, so far as the execution of the trust may render it necessary to invest him with these. And where the power of a trustee ceases by the limitation contained in the trust itself, he can no longer hold possession of the estate, and may be compelled to reconvey it.2 20. There is one class of trusts where equity follows the estate into the hands of bona fide purchasers, although the sale be made in conformity with the power and duty of the trustee, and that is where devises of lands are made to trustees to sell for the payment of certain specific debts, or to apply the money to certain specific purposes. The purchaser in such cases is bound to see that the money is properly applied. Otherwise the land may be charged in such purchaser's hands with the trust of paying such debts or the execution of such purpose. But this doctrine is confined to cases where the trust is of a limited and defined nature, and does not extend to one of a general character, such as the payment of a testator's debts or legacies generally, without specifying or defining them. And the reason for the distinction is, that in one case the purchaser is apprised by the terms of the power of the trustee, of the specific purposes for which the money is to be applied, and may protect himself by seeing that this is done. In the other, he has no *means of knowing what debts, and the like, are to be paid, [*212] nor to whom. So where the trustee is to sell, at his discretion, at public or private sale, the purchaser is not bound to see St. 29. Real estate or any interest therein held in trust, is liable to process at law against the cestui que trust, in the following States by statute: in New York, 2 Rev. Stat. 4th ed. p. 616, § 35; in Maryland, Stat. 1795, ch. 56, and Stat. 1810, ch. 160; in Virginia, Code, 1849, p. 502, ch. 116, § 16; in North Carolina, Rev. Code, 1854, ch. 45, 4, p. 275; in Kentucky, 2 Rev. Stat. 1860, Stanton's ed. ch. 80, § 23, p. 230; in Georgia, Cobb's New Dig. 1851, p. 1128, § 10, reënacting Stat. 29, Charles II. ch. 3; in Mississippi, Rev. Code, 1857, p. 308, art. 12; in Arkansas, Dig. Stat. 1858, p. 505, ch. 68, § 33; in Indiana, 2 Rev. Stat. 1852, p. 153, § 526. 1 Lewin, Trusts, 2d ed. 470; Hill, Trust. 273; McCosker v. Brady, 1 Barb. Ch. 329. 2 Waring v. Waring, 10 B. Mon. 331. Story, Eq. Jur. § 1127; Duffy v. Calvert, 6 Gill, 487; Gardner v. Gardner, 3 Mason, 218; Dunch v. Kent, 1 Vern. 260; Spalding v. Shalmer, 1 Vern. 301; 1 Cruise, Dig. 450. * Story, Eq. Jur. § 1130; 1 Cruise, Dig. 451; Potter v. Gardner, 12 Wheat. 498; Andrews v. Sparhawk, 13 Pick. 393. to the application of the purchase-money. And when the trust is recorded, the purchaser is charged with notice of what it is. And if the sale were made for other purposes than the execution of the trust, the court may in their discretion set it aside, if this was known to the purchaser. And where executors were authorized to sell, if in their judgment it should be necessary, a purchaser is not bound to see to the application of the purchase-money.2 21. Formerly it was a doctrine of universal application, that a trust being a matter of honor and, personal confidence, a trustee was not entitled to charge compensation for his services. But this has not been generally adopted in this country, and the doctrine is undergoing a change in England.3 In Illinois, he can only charge for necessary expenditures incurred in preserving and managing the trust property, unless a compensation be previously stipulated for. And the same rule prevailed in New Jersey, till the subject was regulated by statute.1 < SECTION V. TRUSTS UNDER THE LAW OF NEW YORK. The law as to Trusts as well as Uses, has been materially modified by statute in New York, which has led to several important rulings of their courts, to which it is proposed briefly to refer, rather by way of showing what departures have been made from the general system of trusts, as above explained, than of giving a complete outline of the present system prevailing there. The statute referred to is art. 2, tit. 2, ch. 1, part 2d of the Revised Statutes of New York, of 1827. The object of the act was to abolish all trusts where, by the English statute of uses, the legal estate would be executed in the person entitled to the equitable estate, and to declare them legal 1 Nicholls v. Peak, 1 Beasley (N. J.), 69. 2 Davis v. Christian, 15 Gratt. 11. 3 Story, Eq. Jur. § 1268; Barrell v. Joy, 16 Mass. 221; Denny v. Allen, 1 Pick. 147; Meacham v. Sternes, 9 Paige, Ch. 398; Wagstaff v. Lowerre, 23 Barb. 209. * Constant v. Matteson, 22 Ill. 546; Warbass v. Armstrong, 2 Stockt. Ch. 263. For much of what follows, reference has been had to "The law of Real Property of the State of New York," by Mr. Lalor. The law of Alabama is substantially like that of New York on this subject, You v. Flinn, 34 Ala. 412, 413. estates in the cestuis que trust, extending this principle to trust terms where the cestuis que trust are to have the benefit of the possession of the estate. So where the property conveyed 'in a deed has been given to the grantee merely, as a trustee for others, and not for his own benefit, he will take no legal title or beneficial interest under such deed. And if the cestui que trust be not named or ascertained, the limitation would be wholly void. Nor will the form in which the trust is limited, make any difference [*213] where the purpose and intention are to secure the enjoyment or possession of the property to another than the grantee named. Thus a limitation to A to his use, to the use of or in trust for B, would give nothing to A, and the legal and equitable estates would unite in B. But what are known as active trusts, are not affected by the statute. They remain as they were before its passage. Thus a grant to A in trust to pay the rents to B, a married woman, during her life, and after her death to convey to her children, is a good trust estate for the life of B. Under the denomination of active trusts, which are recognized by the statute as valid, are: first, to sell for the benefit of creditors; second, to sell, mortgage, or lease for the benefit of legatees; third, to receive rents and profits and apply the same to the use of any person; fourth, to receive rents and profits to accumulate for a period and purpose authorized by statute.8 So a devise in trust to pay annuities out of real estate, is held to be a valid trust.9 Nor does the statute intend to affect implied or resulting trusts, except to limit their extent, confining them to cases where some improper advantage has been taken by the trustee of the confidence or situation of the cestui que trust.10 1 Lalor, Real Prop. 125; Coster v. Lorillard, 14 Wend. 365–399. 2 Rev. Stat. 1827, pt. 2, art. 2, tit. 2, ch. 1, § 47; Lalor, Real Prop. 155, 157; Nieoll v. Walworth, 4 Denio, 385; Knight v. Weltherwax, 7 Paige, 'Ch. 182. Lalor, Real Prop. 157; La Grange v. L'Amoureux, 1 Barb. Ch. 18. Rev. Stat. 1827, and 5th ed. 1859, pt. 2, art. 2, tit. 2, ch. 1, § 49; Lalor, Real Prop. 158; Wood v. Wood, 5 Paige, Ch. 596. Rev. Stat. 1827, pt. 2, art. 2, tit. 2, ch. 1, § 48; Lalor, Real Prop. 157; Cushney v. Henry, 4 Paige, Ch. 345; Judson v. Gibbons, 5 Wend. 224. Wood v. Mather, 38 Barb. 477. * Rev. Stat. 1827, pt. 2, art. 2, tit. 2, ch. 1, § 55; Lalor, Real Prop. 167. See Gilman v. Reddington, 24 N. Y. 9. Mason v. Mason, 2 Sandf. Ch. 432. 10 Lalor, Real Prop. 125, 159; Astor v. L'Amoreux, 4 Sandf. 524. |