between trustee and cestui que trust as to any part of the principal or interest of such charges (a), at all events as long as the land remains in specie. Mutlow v. Bigg, L. R. 1 C. D. 385; Pawsey v. Barnes, 20 L. J. Chy. 393; Banning's Limitation of Actions, 189.

In Ontario the point came up in the case of Tiffaney v. Thompson, 9 Chy. 244, and the Chancellor Vankoughnet speaks as follows at page 253: "The Statute of Limitations, with regard to legacies, had for a long time been a puzzle, but I think the true solution is to be found in the case of Watson v. Saul, 1 Giffard, 188. The Vice-Chancellor there, after a review of all the preceding decisions of any importance, declares the distinction to be, that when a beneficial interest in property is conveyed to a party charged with the payment of a legacy, that then section 24 of our Act (section 23 of this present Act) will govern, for then it is in reality a mere charge on land; but that when property is conveyed to trustees upon the express trust that out of it a legacy shall be paid, that then section 32 of our Act (30 of the present Act) removes the period of limitation. This construction is consistent with common sense and equity, and affords the means of giving to both clauses of the Act operation in regard to legacies, and I accordingly adopt it. See also Bright v. Larcher, 27 Beav. 130; Obee v. Bishop, 1 DeG. F. & J. 137. See also the cases cited in the judgment: Leonard v. Leonard, 2 B. & B. 171; Broderick v. Broderick, 1 P. W. 239; Cann v. Cann, 1 P. W. 727.

"It is a well known rule that as between cestui que trust and trustee in the case of a direct trust, no length of time is a bar; for, from the privity existing between them, the possession of the one is the possession of the other, and there

(a) Ward v. Arch, 12 Sim. 472; Young v. Lord Waterpark, 12 Sim. 204, 10 Jur. 1 & 15, L. J. Chy. 63; Cox v. Dolman, 2 De G. M. & G. 592; Codrington v. Foley, 6 Vesey, 364; Lawton v. Ford, L. B. 2 Eq. 104; Mutlow v. Bigg, L. R. 18 Eq. 246.

is no adverse title (a). It has hence been argued that as the person into whose hands the estate is followed is also by construction of law a trustee, the cestui que trust is entitled to the benefit of the rule, and is not precluded by mere lapse of time from establishing his claim. But the authorities shew that this doctrine cannot be maintained." (b) This present section effectually puts a stop to any question on that point.

"The rule that the Statute of Limitations does not bar a trust estate," says Lord Hardwicke, "holds only as between cestui que trust and trustee, not as between cestui que trust and trustee on the one side and strangers on the other, for that would make the Statute of no force at all, because there is hardly any estate of consequence without such trust, and so the Act would never take place. Therefore, where a cestui que trust and a trustee are both out of possession for the time limited, the party in possession has a good bar against them both." (c)

Lord Manners says, in Pentland v. Stokes, 2 B. & B. 75, "If trustees neglect their duty, and suffer an adverse possession of twenty years to be held, I apprehend that the Statute of Limitations is a bar to the cestui que trust."

Acknowledgment of a Debt by a Trustee.-As a general rule, the acknowledgment of a debt by a trustee will be binding on the cestuis que trustent. Toft v. Stephenson, 1 De G. M. & G. 41.

A security by way of a trust for sale is to be regarded as an ordinary mortgage in reference to the Statute of Limitations. Locking v. Parker, L. R. 8 Chy. 30; Yardley v. Holland, L. R. 20 Eq. 428.

(a) Chalmers v. Bradley, 1 J. & W. 67; Bennett v. Colley, 2 M. & K. 232; Llewellyn v. Mackworth, Barn. 449; Wilson v. Moore, 1 M. & K. 146.

(b) Lewin on Trusts, 704, 6th Edit.; Townshend v. Townshend, 1 B. C. C. 550; Bonney v. Redgard, 1 Cox, 145.

(c) Llewellyn v. Mackworth, 2 Eq. Ca. Ab. 579; s. c. Barn. 445.

In McFadden v. Stewart, 11 Chy. 272, leave was given to amend with a view of shewing that certain lands held by the deceased partner, and which had descended to his heir at law, had been purchased with partnership assets, and therefore there was a resulting trust in favour of plaintiff.

"The effect of the 25th section of 3 & 4 Will. IV. cap. 27 (the present section of Ontario Statutes now under discussion), is that as between the trustee and any person claiming through him, and the cestui que trust and any person claiming through him, time does not run until there has been a conveyance to a purchaser for valuable consideration. The trust estate may therefore be followed by the cestui que trust notwithstanding acquiescence by him (a), not only as against the trustee, but against all volunteers claiming under him (b); but so soon as the estate is conveyed to a purchaser for valuable consideration, as if it be made the subject of a marriage settlement, the time begins to run (c), and a lease for value is pro tanto a conveyance within the meaning of the Act (d). No possession by a purchaser short of the statutory period will be a bar." (e)

This section applies only to express trusts. "Trusts, as regards the provisions of the Statute, may be divided into express trusts and constructive trusts; the former arising from the language of some written instrument, and the latter, such as are elicited by the principles of a Court of Equity from the actions of the parties." (f)

(a) Browne v. Radford, W. N. 1874.

(b) Sturgis v. Morse, 24 Beav. 541, 3 De G. & Jones, 1; Heenan v. Berry, 2 Jones & Lat. 303; Salter v. Cavanagh, 1 Dru. & Walsh, 668; Blair v. Nugent, 3 Jones & Lat. 668, 9 Ir. Eq. Reports, 400; Ravenscroft v. Frisby, 2 Cole, 16; Massy v. O'Dell, 10 Ir. Ch. Rep. 22; O'Reilly v. Walsh, 6 Ir. Eq. Rep. 555; Dixon v. Gayfere, 17 Beay. 421.

(c) Petre v. Petre, 1 Drew. 371.

(d) Attorney-General v. Davey, 4 De G. & J. 136; Attorney-General v. Payne, 27 Beav. 168.

(e) Attorney-General v. Flint, 4 Hare, 147; Lewin on Trusts, 718. (f) Lewin on Trusts, 719.

In Commissioners of Charitable Donations v. Wybrants, 2 Jones & Lat. 197, held, it is not necessary to use the word trust in order to create an express trust. "If, therefore, land be devised to a person on trust to receive the rents, and thereout to pay certain annuities, the surplus rents result to the heir at law upon the face of the instrument, and this being an express trust, the heir at law is not barred by any length of possession by the trustee." (a) In Lord St. John v. Boughton, 9 Sim. 223, where there was an express trust to sell and pay debts, the V. C. E. thought that as no part of the produce of the sale had been set apart for debts, the case was not within the exception of the 25th section, but fell under the 40th, and that if there had been no subsequent acknowledgment, it could not have been recovered. This case was decided on the ground that there was an acknowledgment. Lewin on Trusts, 719. But see Watson v. Saul, 1 Giff. 197.

But trusts arising by the construction of a Court of Equity from the acts of parties, or to be made out by circumstances, or to be proved by evidence, will not be saved by the clause relating to express trusts, as, if the devisee for life of a leasehold estate renew in his own name, the statute will begin to run from the time of the renewal." (b)

It will be noticed that in cases of a purchaser, this section makes time a bar, and this will be the case though the purchaser have knowledge of the trust (c). "The actual date of the execution of the conveyance is the date from which time commences to run (d). If a trustee on his marriage includes his cestui que trust property in his marriage settlement, it appears that this is a conveyance for valuable consideration, so far as the consideration extends." (e)

(a) Salter v. Cavanagh, 1 Dru. & Walsh, 668; 7 Ir. Eq. Rep. 580; Mutlow v. Bigg, 18 L. R. Eq. 246; Lewin on Trusts, 719.

(b) Petre v. Petre, 1 Drew. 371; In re Scott, 8 Ir. Chy. Rep. 316.

(c) Law v. Bagwell, 4 Dru. & War. 298; Townsend v. Townsend, 1 Br. C. C. 557.

(d) A. G. v. Flint, 4 Hare, 147.

(e) Petre v. Petre, 1 Drew, 371. Banning's Limitation of Actions, 190.

The trust must be clear. (a)

"The saving as to express trusts applies between co-cestuis que trustent as well as between trustee and cestui que trust." (b)

In Harris v. Harris, 29 (No. 2) Beav. 110, if one cestui que trust has been overpaid, he is liable to account to a co-cestui que trust. A mere power is not a trust (c), and therefore an executor with power to sell real estate charged with debts is not a trustee within the saving of the Statute. : The case of Brittlebank v. Goodwin, L. R. 5 Eq. 545, decided (overruling several prior decisions) that the exception against the trustee applied also to the executor of the trustee; but in cases of great delay, the Court has refused relief. (d)

There are two exceptions to the rule that no lapse of time will give a cestui que trust in possession a title against his trustee. First exception: rule applies only where the cestui que trust is the actual occupant himself, and not where his assignees or others are in possession (e). Secondly: the trust must be express, and a merely constructive trustee in possession, such, for instance, as a purchaser holding under an agreement to purchase, is not so affected with any trust as to be unable to take advantage of the Statute.”

With regard to executors and personal property, see Banning's Limitation of Actions, pp. 195–199.

31. 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 which he,

(a) A. G. v. Fishmongers' Co., 5 My. & Cr. 16.

(b) Knight v. Bowyer, 2 De G. & J. 421, 4 Jur. N. S. 569, 28 L. J. Chy. 54; Ward v. Arch, 12 Sim. 472; Young v. Lord Waterpark, 13 Sim. 199. Cox v. Dolman, 2 De G. M. & G. 592; Garrard v. Tuck, 8 C. B. 231.

(c) Banning's Limitation of Actions, 191; Dickenson v. Teasdale, 14 De G. J. & S. 52; but see Jacque v. Jacquett, 27 Beav. 332.

(d) Bright v. Legerton (No. 1), 29 Beav. 60.

(e) Blight's Lessees v. Rochester, 7 Wheat. (U. S.) 535; Melling v. Leak, 16 C. B. 652; Stanway v. Rock, 4 M. & Gr. 30; Banning's Limitation of Actions, 194.