CH. XIX. express trustees or persons claiming through them on the other, PART V. is regulated by the 24th & 25th sections of 3 & 4 Wm. IV. c. 27 and the 8th section of the Trustee Act, 1888. The Conveyance by last-named Act does not apply to actions where the claim trustee is founded upon any fraud or fraudulent breach of trust, holding on or where the claim is to recover trust property or the trusts. proceeds thereof, still retained by the trustee or previously received by the trustee, and converted to his use. Where the claim is not founded on fraud or on a fraudulent breach of trust, or is to recover trust property which the trustee has abandoned or parted with, but the proceeds of which he has not received and converted to his use, the trustee may plead lapse of time as a bar to an action against him (1), but subject to the exception that time will not begin to run against the beneficiary until his interest becomes an interest in possession. In cases not coming within sect. 8 of the Trustee Act, 1888, the right of the cestui que trust, as against the trustees themselves, can never be barred by effluxion of time, nor can it be barred as against persons claiming through the trustees, except where there has been a conveyance to a purchaser for value. Against such persons the cestui que trust will, in the absence of such conveyance, in cases unaffected by the Trustee Act, 1888, retain, in spite of lapse of time, any right of action to which, in the circumstances of the case, he was originally entitled. It is clear, indeed, that neither the 24th nor the 25th section of 3 & 4 Wm. IV. c. 27 confers any right of action; these sections do not enable a cestui que trust to maintain an action for the recovery of land or rent, or any charge on land in any case whatever in which, apart from the Act, 3 & 4 Wm. IV. c. 27, he would not have a right enforceable on the general principles of equity; and circumstances may deprive him of such right independently of the statute, (1) See In re Bowden. Andrew v. Cooper, 45 Swain. Swain v. Bringeman (1891), 3 Ch. 233. v. Morgan (1893) 1 Ch. 304. Ch. D. 444. In re PART V. even in the case of an express trust. Thus, if a trustee, having the legal estate, convey trust property to a purchaser for value without notice of the trust, the cestui que trust has, on general principles, no right in equity against such purchaser, and his right to the land is lost immediately on such conveyance. But if property pass, by the death of a trustee, to his legal representative (1), or pass to a volunteer on conveyance, the right of the cestui que trust is preserved, and time will not run against that right, so that, however long such a representative or volunteer hold the property with or without knowledge of the trust, he will, except in cases falling under the Trustee Act, 1888, be liable, at any time, to an action to recover the inheritance, and for an account of arrears of profits, provided there be no acquiescence or laches on the part of the cestui que trust. There remains the case in which the trust property has been conveyed to a purchaser for value with notice of the trusts; in this case the cestui que trust retains the right to recover the property or charge against such purchaser, or any one claiming through him as a volunteer or with notice, a right, however, which will be barred twelve years after it has accrued. The cestui que trust, on the conveyance for value being made, is in the position of any equitable owner who has a remedy in equity, but with no express trusts in his favour; the time from which the statute begins to run depends on the nature of the equitable limitations. There is, however, this important difference in favour of the cestui que trust, that, while he cannot be barred in less than twelve years from the date of the conveyance, yet, owing to the nature of the limitations, the statute may begin running at some later time, and, therefore, give him a longer period (2). It would seem from the (1) Salter v. Cavanagh, 1 Dru. & Walsh, 668; Patrick v. Simpson, 24 Q. B. D. 128 (2) Thompson v. Simpson, 1 Dru. & War. 459, 489; Magdalen College, Oxford v. Att.-Gen. 6 H. L. 189, 215; and see Part V. Ch. XVIII. and Lewin on Trusts, 9th ed. P. 998. CH. XIX. trustee. judgment in one case, that the conveyance spoken of in PART V. the 25th section takes place, not when the contract for the purchase is concluded and the estate transferred in equity, but when the legal conveyance is executed (1). If a trustee on his own marriage settles the trust pro- Settlement perty for the benefit of himself and his wife and the issue of the marriage, it has been held that this is a conveyance for value within the meaning of the 25th section, and that the right of the cestui que trust will, at the end of twelve years from the time of the execution of the settlement, be barred as against all persons interested under it, even as against one who claims by devise an estate which the trustee by the settlement reserved to himself (2). This last position it was unnecessary to consider minutely in the case referred to, as the decision would have been the same on other grounds, and it is one which it seems hard to support, for by the concluding words of the 25th section, the right is to be taken as accruing at the time of the conveyance, only as against a purchaser for value and any person claiming through him, and it can hardly be said that a trustee who by a marriage settlement reserves an estate in the trust property to himself is a purchaser of such estate for valuable consideration, or a person claiming through such a purchaser. In a case which arose in Ireland, in which the cestuis que trustent filed a bill for an account of the rents of the trust property, the defendant, in order to prove a conveyance for value within the meaning of the 25th section, offered as evidence the memorial of a lost deed dated in 1831, the parties to which were H. (the trustee of the property in question) of the first part, X. and his daughter, A., "spinster," of the second part, and two trustees of the third part, whereby the lands in question were conveyed upon certain trusts which were not dis (1) Att.-Gen. v. Flint, 4 Hare, 147. CH. XIX. PART V. closed in the memorial; it was proved that H. married A. in 1831, and till his death H., and afterwards the defendant, his son, had been continuously in undisputed possession and receipt of the rent for his own benefit. The Chancery Court of Appeal held that, while it might be inferred that the lost deed was a settlement on the marriage of H. and A., it could not be inferred that the defendant was a purchaser under it, so as to bring himself within the protection of sect. 25 (1). Knight v. If one cestui que trust is in possession of a trust estate, or in receipt of the rents and profits, his possession is not adverse to the legal right of the trustees, and time will not run against their right or the right of another cestui que trust enforceable through them (2). In the case of Knight v. Bowyer just referred to, Sir George Bowyer had granted annuities to six persons, charged on his life interest in the estate of R., and he appointed Ballachy and Ralfe, his agents, to receive the rents of the estate, on trust to satisfy the annuities and pay the residue to Sir George or his assigns. The deed contained a covenant by Sir George not to revoke the powers therein contained, and provisions for the appointment of fresh receivers. By another deed, executed on the same day, Sir George appointed Bridger to be trustee of the estate, and conveyed it to him and his heirs during Sir George's life, upon trust to permit Sir George to receive the rents until default should be made in payment of the six annuities, or any annuities that might subsequently be charged on the estate, and thereupon to sell the hereditaments and apply the proceeds in paying the annuitants, and subject thereto in trust for Sir George and his assigns. Under these deeds Ballachy was put into possession of the rents as receiver. Afterwards Sir George granted three further annuities, and charged them on his life estate. He then executed a (1) Smith v. Smith, 1 L. R. Ir. 206. (2) Knight v. Bowyer, 2 De G. & J. 421; 27 L. J. Ch. 520. CH. XIX. deed, called the deed of direction, by which he directed PART V. Ballachy, Ralfe, and Bridger, the receivers and the trustee, to exercise the powers vested in them for the purpose of raising and paying the six earlier and also the three last created annuities. Notice of that deed was given immediately on its execution to the receivers and the trustee. Ballachy received the rents down to 1846, but the three later annuitants received nothing after 1814, the prior charges, &c., swallowing up the whole proceeds. It was held that the deed of direction operated to constitute the receivers and the trustee express trustees for the grantees of the three annuities, as assignees of Sir George. It was immaterial whether Bridger, the trustee, was ever in possession. "Assuming," said Turner, L.J., "that there was no possession by Bridger as trustee, there was the receipt of rents by Ballachy as a receiver clothed with a trust; and the estate vested in Bridger as trustee could not, as I conceive, be barred or extinguished whilst some of his cestuis que trustent were in receipt of the whole produce of the estate, and were in such receipt under a deed forming part of the same security." held in trust for The questions that arise as to charges on land have Charges been treated as if the persons in whose favour the land is charged were themselves beneficial owners of the others. charges; but it is obvious that in many cases they may be merely trustees for others. Now, wherever there is a remedy in equity, it is clear on general principles that the Court always looks to the persons ultimately entitled, and that they have a remedy independently of any intermediate trustee. Consequently, when any conveyance for value takes place so as to set the statute running in these cases, time, so far as it is not extended by the 25th section, will begin to run against the parties ultimately entitled, having regard to the limitations under which they claim; but it must not be forgotten that under the 40th section of 3 & 4 Wm. IV. c. 27 (now the 8th section of 37 & 38 Vict. c. 57) time runs as |