CH. XVIII.

PART V. period (1). In all suits for waste questions arise whether the remedy of the remainderman is an action for trover at the time of the waste committed, or whether the produce of the waste committed is to be treated as part of and following the limitations of the inheritance, and whether the tenant for life is entitled to the income of such produce during his life (2). These questions depend on the nature of the waste, and are of considerable difficulty, and it seems that their solution in each case must materially affect the question whether the time of limitation is twelve years or six, and whether the time begins to run from the death of the tenant for life or the date of the waste committed. In the cases just referred to (3) a good deal was said about the acquiescence of the remainderman in the waste during the life of the tenant for life. As a person entitled in reversion to a trust fund may prejudice his remedy for a breach of trust committed before his interest becomes an interest in possession by acquiescence in such breach before that time (4), so it would seem clear that it is not inconsistent in a case of waste to hold that time does not begin to run against the remainderman till the death of the tenant for life, and yet that the right of the remainderman may be affected by acquiescence before that event. In such cases, however, the acquiescence must, it seems, amount to something more than mere non-interference:(5). It is now settled that charities are within the 24th section of 3 & 4 Wm. IV. c. 27, subject to the exceptions contained in the 25th section (6).

Charities.

(1) Birch-Wolfe v. Birch, L. R. 9 Eq. 683; 39 L. J. Ch. 345. (2) See Bagot v. Bagot, 32 Beav. 509; Gent v. Harrison, John. 517; 29 L. J. Ch. 68; Lowndes v. Norton, 6 Ch. D. 139; and Craig on Rights and Liabilities as to Trees and Woods, cap. 15 and p. 167. (3) And see Harcourt v. White, 28 Beav. 303.

(4) Browne v. Cross, 14 Beav. 105; Life Assurance of Scotland v. Siddal, 3 De G. F. & J. 58.

(5) Life Assurance of Scotland v. Siddal, ubi supra, and see Duke of Leeds v. Amherst, 2 Phillips, 117.

(6) See post, Part V. Ch. XIX.

PART V.

CH. XVIII.

runs

trust.

The 24th section of 3 & 4 Wm. IV. c. 27 of course confers no remedy; but, when the equitable owners of land have a direct remedy, it is obvious that the period When time from which time will run against them depends entirely against on the equitable limitations under which they claim and cestui que the time at which each interest under these limitations becomes an interest in possession. The 25th section will be discussed presently, but it should be remarked here that its effect is to prevent time running in favour of a trustee against a cestui que trust upon an express trust or those claiming through him until a conveyance for value has been made by such trustee or some one claiming through him, and that the right of the cestui que trust is to be deemed to accrue at the time of such conveyance. Now it is obvious that, unless this is construed as only a proviso on the 24th section, it might, instead of extending the time wherein the cestuis que trustent might bring their remedy, actually take it away before their right accrued. For instance, if an estate were vested in trustees upon an express trust for A. for life, with remainders over, and during A.'s lifetime the trustees conveyed for value with notice and put the purchaser into possession, then, if time ran absolutely from the date of the conveyance, every remainderman would be barred in twelve years from that date, although a remainderman's right to sue might by his remainder falling into possession have accrued within twelve years, or might not have accrued at all. The more reasonable construction would seem to be that the 25th section must be construed as in certain cases extending the time limited by the 24th section, but as in no case shortening the time which the equitable claimants would have under the 24th section, so that, in such a case as that referred to, the various remaindermen or parties under disability would have all the time allowed by the 24th section, and in addition to this, no matter when the right otherwise accrued, time could not begin to run

PART V. until a conveyance had been made. This view is supported by very high authority (1).

CH. XVIII.

Are cestuis que trustent

when trustees

if

It has sometimes been laid down in very general barred terms that, when the legal right of trustees is barred as against third persons, the cestuis que trustent are barred are barred? also. We have seen (2), however, that, even with regard to personal debts, this is not universally true, and that it is necessary to consider whether the cestuis que trustent have any independent remedy against the debtors, and, any such remedy exists, how the statutes or the rules of equity adopted in analogy to them affect it, without regard to the question how the legal remedy of the trustees may be affected by the statutes. This principle is of course equally true as to suits to recover land; and when a trustee, whether on an express or implied trust, wrongfully conveys without value, or for value with notice, the purchaser takes, subject to the equities, and each of the cestuis que trustent having a direct remedy against him, little difficulty arises in applying the provisions of the statutes to the remedies in equity for enforcing such right.

Where, however, land is vested in trustees upon trusts, under which the persons beneficially interested take in succession by way of remainder or their rights otherwise accrue at various times, and a mere trespasser not claiming through any conveyance gains possession, a question of considerable difficulty arises, namely, whether or not, when the trustees are barred, all the cestuis que trustent are barred also. Now in such case it would seem that, in the absence of any special cause, the cestuis que trustent have no direct equity against the trespasser, their only remedy being ejectment in the name of their trustees; and it might be thought that, when the

(1) Thompson v. Simpson, 1 Dru. & War. 459, 489; AttorneyGeneral v. Magdalen College, 6 H. L. 189, 215; and see post, Part V. Ch. XIX.

(2) Part IV. Ch. II. p. 251.

trustees are barred by twelve years' dispossession and PART V. their title extinguished by the operation of the 34th CH. XVIII. section of 3 & 4 Wm. IV. c. 27, as any ejectment in the name of the trustees must then fail, all the cestuis que trustent must be without remedy, and therefore that they are practically barred at the same time as their trustees, even though the right to use the name of the trustees for the purpose of recovering possession has, from the nature of the equitable limitations, not accrued within twelve years or even at all. It may be thought, moreover, that not only are the cestuis que trustent practically without remedy, but that their interests are, by the operation of the statute, altogether destroyed, as, those trusts being merely trusts affecting the estate of the trustees, when the title to such estate is extinguished, the title of the cestuis que trustent to their interests must be extinguished also. Mr. Lewin (1) seems to have thought that this is the correct view, and that, as soon as a trespasser has been in possession long enough to bar the legal title of the trustees, the title of the cestuis que trustent, whether entitled in remainder or not, whatever may be the limitations under which they claim, is barred also. When, however, the number of settlements is considered in which the limitations are equitable, but where the persons beneficially entitled under the limitations are the only owners known to the world, and the trustees, though having the legal estate vested in them, never interfere in the management of the property, it is obvious that this view would lead to very startling consequences, and this would especially be the case when the only reason that the estates of the parties beneficially entitled are equitable is that at the time of the settlement the legal estate has for some reason been outstanding. And there seems to be a fallacy in saying that, when the legal estate of a trustee ceases to exist, the trusts of that estate cannot exist either, for, if an (1) Lewin on Trusts, 9th ed. p. 988.

PART V.

CH. XVIII.

estate be conveyed or devised to trustees on certain trusts, and those trustees disclaim so that the estate never vests in them, the equitable estates do not drop, but exist as binding the legal estate in the hands of those on whom it devolves in consequence of the disclaimer.

It may be said too that, as the 34th section only extinguishes the title of the person whose remedy is barred, leaving the occupant with a title gained by possession and resting on the inability of others to eject him (1), the extinction of the title of the trustee cannot of itself extinguish the title of the equitable owners; that, on the contrary, their title cannot be extinguished by the operation of the 34th section until the prescribed period has elapsed after their right to sue in the name of the trustee has accrued, or would, if such remedy existed, have accrued, having regard to the equitable limitations. If this be right, the trespasser in the case supposed would after the lapse of twelve years have a title subject to be defeated by any existing estate or interest, and there would be actual subsisting equitable estates recognised as such now by all Courts, the persons entitled to such estates or interests being the substantial owners of the land. In these circumstances the Courts would scarcely allow any extreme technical view to defeat the rights of the parties; but in any action for the recovery of land brought by the beneficial and substantial owners in the name of the trustees, or by the equitable owners in their own names, the Courts would not allow the trespasser to make use of the statute to defeat such substantial existing rights (2). It is believed that the actual point has never been the subject of a legal decision, but the view here advocated would seem to be supported by the judgment of the House of Lords in Scott v. Scott (3).

(1) See post, Part V. Ch. XXV.

(2) See Scott v. Scott, 11 Ir. Eq. 487; 4 H. L. 1065; Judicature Act, 1873, s. 24, subs. (3).

(3) 4 H. L. 1065; in the Court below, 11 Ir. Eq. R. 487.