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parish; and after the death of J. W., subject to the annuities, to the use of his first and other sons in tail; and he directed the said several annuities to be paid (not saying by whom) on the days therein mentioned; and expressly charged his estate with the same. X. died more than twenty years before the filing of the bill to establish the charitable devises, and no payment or other satisfaction was ever made on foot of the annuities. No conveyance had been executed by the trustees; but J. W. had, since the death of the testator, been in possession of the estates, and he and his eldest son suffered a recovery and resettled them: it was held, that the right to recover the annuities was not barred by this statute, the trust for the charities being an express one, within the meaning of the 25th section of this act. At the conclusion of his judgment Sir E. Sugden, L. G., said, it is not a case in which annuities were given to trustees for the charities; and the estate itself, subject to the annuities, was given to other persons beneficially. If the case should arise, it may be found more difficult to relieve the charities in this court, when time has operated against the trustees of the charities as a legal bar. (The Commissioners of Donations v. Wybrants, 2 Jones & L. 182. See ante, pp. 138, 139.)

If trustees in whom land is vested for charitable purposes convey the land to a purchaser for valuable consideration, as between themselves and their cestui que trust no time creates a bar. The trustees and their cestuis que trust are barred from instituting any proceedings in their own names to recover the land from a purchaser when twenty years have elapsed from the conveyance, subject to the exception contained in the clause which saves rights pending disabilities. (Attorney-General v. Magdalen College, Oxford, 18 Beav. 223; 18 Jur. 263; 23 Law J., Chan. 844.)

Charities are trusts, and are as such within the operation of this section. 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 this lease (the fairness of which at the time of its execution was not impeached) the attorneygeneral 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 against purchasers for value, and therefore that it was barred. (St. Mary Magdalen, Oxford v. Attorney-General, 6 H. L. C. 189; 3 Jur., N. S. 675; 26 Law J., Chan. 620.)

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. (Attorney-General v. Davey, 4 De G. & J. 136; 19 Beav. 521; Attorney-General v. Payne, 27 Beav. 168.) An ejectment bill, filed in 1842, stated that the plaintiff's alleged right to the land accrued in 1812; that a bill had been filed in 1824 to recover the property; and that an ejectment had been brought in 1832, which was stayed until the plaintiff had paid the costs of a former ejectment; but it did not state the result of the suit or action: it was held, that it must be inferred that they had failed, and that they did not prevent the operation of the Statute of Limitations. (Bampton v. Birchall, 5 Beav. 67.)

In the case of a direct or express trust, as where an estate is conveyed to the use of A. and his heirs in trust for B. and his heirs, no time, as between the trustee and cestui que trust, can operate as a bar to the equitable right of the latter; (Barnard, C. R. 449; Townshend v. Townshend, 1 Br. C. C. 551. See Lewin on Trusts, pp. 560-566, 4th ed.;) for between him and his trustee there is no adverse possession. Where there is a trust created by the act of the parties, no time will be a bar, for the possession of the trustees

3 & 4 Will. 4,

c. 27, s. 25.

Time no bar between trustee and cestui que trust.

3 & 4 Will. 4, c. 27, s. 25.

is the possession of the 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; but where a person is in
possession by virtue of a fraud, he is not a trustee in the ordinary sense of
the word, and he does not become so until he is declared to be a trustee by
a decree of a court of equity; in these cases, time begins to run at the period
when the fraud is discovered. (Hovenden v. Lord Annesley, 2 Sch. & Lef. 633.)
Until the fraud is discovered the time does not operate; but the fraud is
considered to be discovered at the time when such reasonable notice of what
has happened has been given to the person injured, as to make it his duty,
if he intend to seek redress, to make inquiry, and to ascertain the circum-
stances of the case. (Marquis Clanricarde v. Henning, 30 Beav. 180.) Be-
tween cestui que trust and trustee no lapse of time will preclude the account
from the commencement of the trust, in a case in which the relation of
trustee and cestui que trust continues, the transactions between them are
not closed, and the delay of the claim is attributable to the trustee not
having given to the cestui que trust that information to which he was en-
titled, and accounted with him in such manner as he ought. (Wedderburn
v. Wedderburn, 4 M. & Cr. 41; 3 Keen, 722.) But time may be a bar
where there has been a direct and independent dealing between the trustees
and the cestui que trust after the relation has terminated. (Wedderburn v.
Wedderburn, 2 Keen, 749.) A suit to make an executor account for a sum
of money which had been bequeathed to him by his testator upon certain
trusts, and which had been severed by the executor from the testator's per-
sonal estate, and the interest of which had, for a time, been applied upon
the trusts of the will, is not a suit to recover a legacy within the meaning
of the 40th section of this act. The fund ceased to bear the character of a
legacy as soon as it assumed the character of a trust fund. The suit, there-
fore, was considered not as a suit for a legacy, but as a suit to compel a
party to account for a breach of trust, and it is clear, therefore, that it is not
within the terms of that section. (Philippo v. Munnings, 2 M. & Cr. 309.)
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 pro-
perty 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 enjoy-
ment of the property inconsistent with the supposed trust. (Attorney-
General v. Fishmongers' Company, 5 Jurist, 693; 5 M. & Cr. 16.) But 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 place. 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, Br. C. C. 639, n.; Ambl. 645; Hercy v. Ballard, 4 Br. C. C. 469;
Harmood v. Oglander, 6 Ves. 199; 8 Ves. 106; Hovenden v. Lord Annesley,
2 Sch. & Lef. 629; Sugd. V. & P. 610–612, 11th ed.) Where the whole
rents have been received by some 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 will acquire 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. See ante, p. 192.) A conveyance of the legal estate by
the trustee, or as Lord Hardwicke seems to have thought, (1 Ves. sen.
435, 536,) a disseisin or actual ouster of the trustee by the cestui que trust,
may indeed be presumed from length of possession, or under particular cir-
cumstances; but time alone does not destroy the interest of the trustee.
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.) In one case the purchase of trust property by trustees for their own benefit was set aside, after a considerable lapse of time and several assignments. (Attorney-General v. Lord Dudley, Coop. C. C. 146.) But in another case, a bill to set aside a purchase by a trustee for himself and his children was dismissed, merely on the ground of the lapse of eighteen years. (Gregory v. Gregory, Coop. C. C. 201. See Champion v. Rigby, 1 Russ. & M. 539; Lewin on Trusts, p. 344, 4th ed.)

In general the possession of the cestui que trust is not adverse against the trustee, unless the former has denied the title of the trustee. 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.) For where a person has conveyed a legal estate in land to a trustee for himself for any particular purpose, and continues to hold the possession, he becomes tenant at will to such trustee, and his possession not being adverse to the title of the trustee, the Statute of Limitations will not operate. Where an estate was conveyed by a tenant for life and remainderman to the use of trustees in trust to sell it, with the consent of the parties interested, and to invest the purchase-money in other lands to be settled to different uses, with a proviso that till such sale the rents should be received by such persons as would have been entitled thereto under a former settlement: it was held, that the possession and receipt of the rents by the tenant for life for above twenty years after the creation of the trust, consistent with the terms of the deed and the object of the trust, without any interference of the trustees, did not show his possession to be adverse to their title, so as to bar their ejectment against his grantees, such possession being consistent with and secured to him by the deed of trust. A presumption of a reconveyance from trustees is always made in favour of the possession of those who are rightfully entitled to it, and to invest that possession with a legal title; but such a presumption is not warranted where the possession of the party was all along consistent with the deed and the title of the trustees. (Keene v. Deardon, 8 East, 248. See Smith d. Dennison v. King, 16 East, 283.) A trustee, whose duty it was to sell certain estates, and pay off a mortgage 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.) So where an estate was vested in trustees, and a married woman who was entitled to an equitable estate for life joined with her husband in conveying the estate to a purchaser by deed and fine for a valuable consideration: it was held, that the possession of the purchaser was not adverse against the trustee who had the legal estate, and that the statute did not begin to run until the determination of the life estate. (Fausset v. Carpenter, 5 Bligh, N. S. 75; S. C., 2 Dow & Clark, 233. See Carter v. Carter, 4 Jur., N. S. 65; 27 L. J., Ch. 74, 80, 81.)

A fine levied by a trustee could not prejudice the equitable interest of his cestui que trust, unless it were levied to a purchaser without notice; (see Gilb. Ch. 62; Bell v. Bell, 1 Ll. & G. temp. Plunket, 59;) and as cestui que trust, entitled to the equitable inheritance, is considered at law merely as tenant at will to his trustee, a fine levied by him did not divest or prejudice the

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3 & 4 Will. 4, c. 27, s. 25.

Constructive trusts.

legal estate. (Earl Pomfret v. Lord Windsor, 2 Ves. sen. 472, 481; 1 Sand. on Uses, 291, 3rd ed.; 5 Cruise, Dig. 208-213.)

Where a trustee of a term for the payment of debts purchased the inheritance from the tenant for life, and had it conveyed to him by fine and feoffment, the circumstance of the purchaser being trustee was held not to entitle the remainderman to an account of rent, except from his entry to avoid the fine, nor if he neglected to claim for five years did it prevent his being barred. (Reynolds v. Jones, 2 Sim. & Stu. 206.)

The following instances of constructive trusts may be mentioned. Where an estate is subject to a trust or equitable interest, and a person purchases it for a valuable consideration, with notice of the trust or equitable interest, the estate will be subject to it in the hands of the purchaser. (Saunders v. Dehew, 2 Vern. 271; Langton v. Astrey, 2 Ch. Rep. 30; Daniells v. Davison, 16 Ves. 249.) And though a purchaser had not notice before he paid his money, yet if he had notice before the execution of his conveyance, he will be bound. (Wigg v. Wigg, 1 Atk. 384; Tourville v. Naish, 3 P. Wms. 307.) So a person acquiring an estate as a mere voluntary grantee, (1 Rep. 121 b; Pye v. George, 2 Salk. 680,) or as a devisee, (Marlow v. Smith, 2 P. Wms. 200,) will take it subject to every beneficial or equitable lien.

It was settled about six years after the passing of the Statute of Frauds, (29 Car. 2, c. 3,) that where one man advances the money to purchase an estate, but the purchase is made in the name of another, a trust arises for him who paid the money; such a case forming an exception to the seventh section of that statute, which requires all declarations of trust to be in writing. (2 Ventr. 361; Wray v. Steele, 2 Ves. & Beames, 390.) Where there is a contract for the purchase of an estate, whether freehold or copyhold, and the purchaser has performed his part of the contract, the vendor, from the time he ought to have conveyed, becomes, by construction of a court of equity, a trustee for the purchaser, that court considering things contracted to be done for valuable consideration as performed. (Hinton v. Hinton, 2 Ves. sen. 634.)

The rule that trusts are not within the Statute of Limitations was held not to apply, where a claim was made after a great length of time against a trustee by implication of law arising upon a doubtful equity. (Townshend v. Townshend, 1 Cox, 28.) Though no time bars a direct trust as between cestui que trust and trustee, a court of equity will not allow a man to make out a case of constructive trust at any distance of time; for where the length of time would render it extremely difficult to ascertain the true state of the fact, or where the true state of the fact is easily ascertained, and where relief would originally have been given upon the ground of constructive trust, it is refused to a party, who after long acquiescence comes into a court of equity to seek that relief. (Beckford v. Wade, 17 Ves. 97; Ex parte Hasell, 3 Y. & Coll. 622; Bell v. Bell, 1 Lloyd & G. temp. Plunket, 65. See Bonny v. Ridgard, cited 4 Br. C. C. 138.)

In Salter v. Cavanagh, 1 Drury & Walsh, 668, it was held, that where a party had been expressly named in a will, his representatives were trustees within this section; and that though a constructive trust would be barred by that statute, and might have been barred previously to it by length of time, yet that that only applied to cases where the trust did not arise on the face of the instrument, but was to be made out by evidence. (See Beckford v. Wade, 17 Ves. 87; Townshend v. Townshend, 1 Br. C. C. 550; 1 Cox, 28. See Lewin on Trusts, pp. 139-149, 4th ed.)

In cases of fraud,

no time shall run whilst the fraud remains concealed.

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 known or discovered: provided that nothing in this clause contained shall enable any owner of lands or rents to have a suit in equity for the recovery of such lands or rents, or for setting aside any conveyance of such lands or rents, on account of fraud against any bond fide purchaser for valuable consideration, who has not assisted in the commission of such fraud, and who at the time that he made the purchase did not know and had no reason to believe that any such fraud had been committed (r).

(r) This section does not mean the case of a party entering wrongfully into possession, but it applies to a case of designed fraud, by which a party, knowing the rightful owner, conceals the circumstances giving the right, and who by means of such concealment is enabled to enter and hold. (Petre v. Petre, 1 Drew. 397; Dean v. Thwaite, 21 Beav. 621; Thurston v. Anstey, 27 Beav. 335; Sugd. Stat. p. 98, 2nd ed.)

A cestui que trust of real estate under a will was discharged, in 1825, under the Insolvent Act, but omitted the estate from his schedule. In 1831, he became bankrupt, and his assignee in bankruptcy took a conveyance of the estate from the trustee, on trust for the creditors under the bankruptcy : it was held, that it thereby became vested in him upon an express trust, viz., that declared by the will, the benefit of which belonged to the creditors under the insolvency; and that, on a bill being filed by the assignee in insolvency in 1853, and that independently of the question of concealed fraud, the Statute of Limitations afforded no defence to the recovery of the estate or the mesne profits. (Sturgis v. Morse, 3 De G. & J. 1; 24 Beav. 541.) The assignee in bankruptcy had entered into the receipt of the rents with notice of the insolvency, and had acted in defiance of the title under it: it was held not a case for limiting the time within which the account was to be taken. (Ib.)

To prove that a fraud was concealed within the meaning of this section, it is not sufficient to show that the party was in such an imbecile or uncultivated condition of mind that it was scarcely possible, though the alleged fraud was by an open act, that he should have discovered the fraud, if the condition of his mind was not that of actual lunacy; for the court cannot possibly estimate for this purpose the chance which the state of mind and education of a man may afford of his making such discovery, and is therefore compelled to assume that every one, not actually a lunatic, is competent to judge of and to obtain advice concerning his rights, and to assert them if necessary. Therefore a suit cannot be maintained in equity to set aside a compromise of an action to recover large estates made eighty years before, upon the ground that the compromise was a fraud upon the plaintiff in the action, and that he was a man of such dull intellect, that, though cognizant of all the facts, it was necessarily a concealed fraud as to him. (Manby v. Bewicke, 3 Kay & J. 342.)

3 & 4 Will. 4,

c. 27, s. 26.

Though courts of equity will interpose in order to prevent those mischiefs When time bars which would probably result from persons being allowed at any distance of in cases of fraud. time to disturb the possession of another, or to bring forward stale demands; yet as its interference proceeds upon principles of conscience, it will not encourage nor in any manner protect the abuse of confidence, and therefore no length of time will bar a fraud. (1 Fonbl. Eq. 331; Cotterill v. Purchase, Forrest, 61; Alden v. Gregory, 2 Eden, R. 230; Whalley v. Whalley, 1 Mer. 436; S. C., 3 Bligh, 1. As to length of time being no bar in cases of fraud, see also Deloraine v. Browne, 3 Br. C. C. 633; Smith v. Clay, Ib. 639, n.; Hercy v. Dinwoody, 4 Br. C. C. 258; 2 Ves. jun. 87; Yate v. Moseley, 5 Ves. 480; Moth v. Atwood, 5 Ves. 845; Purcell v. Macnamara, 14 Ves. 91; Beckford v. Wade, 17 Ves. 87; Hovenden v. Lord Annesley, 2 Sch. & Lef. 607, 630; Moore v. Blake, 1 Ball & B. 62; Medlicott v. O' Donnell, Ib. 156; Gould

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