equity as the trustee was subject to (1). In the late case of Randall v. Errington (s), a purchaser from a trustee who had purchased in the name of a trustee was made a defendant, and the prayer of the bill was, that if he purchased without notice, the trustee might account for the money gained by the re-sale; but as the equity against the purchaser was not noticed either by the counsel or the court, it must be presumed that no notice was proved. A different rule would, to use the expression of a great man, blow up like gunpowder this branch of equitable jurisdiction. It is indeed true, that in the case in the House of Lords, the proceedings in the Court of Sessions were reversed without prejudice to the titles and interests of the lessees and others who might have contracted with the defendant bona fide, and before the dependence of the process (I). But this may be satisfactorily accounted for on two grounds the one, that no notice was charged on the lessees, nor were the leases attempted to be impeached; the other, that the relief sought had been delayed for many years, and the point established by the House of Lords was, to say the least, a new doctrine with reference to Scotland. But this equity is now well established. No person, therefore, can be advised to become the purchaser of an estate so circumstanced, unless the cestui que trust will join; nor would a court of equity, on any other terms, enforce a specific performance of such a contract. But this doctrine cannot be extended to the mere case of a purchase by a trustee in his own name, from his cestui que trust, which may or may not be binding, according to circumstances, unless the purchaser have also notice that the sale was not such as could be supported in equity.

48. Before closing this chapter it must be remarked, that if a cestui que trust acquiesce for a long time in an improper purchase by his trustee, equity will not assist him to set aside the sale (t) (2).

(s) 10 Ves. jun. 423.

(t) See ex parte James, 8 Ves. jun. 337; Hall v. Noyes, 3 Ves. jun. 748, cited; and see 11 Ves. jun. 226; Morse

v. Royal, 12 Ves. jun. 355; Medlicott v. O'Donel, 1 Ball & Beatty, 156; Champion v. Rigby, 1 Russ. & Myl. 539; Roberts v. Tunstall, 4 Hare, 257.

(I) And see the same rule as to under-leases of a charity estate, where the original lease is set aside as improvident. Attorney-general v. Griffith, 13 Ves. jun. 565; Attorney-general v. Backhouse, 17 Ves. jun. 283.

(1) See ante 897, note; Murray v. Ballou, 1 John. Ch. 574, 575. (2) See ante 887, note; Jennison v. Hapgood, 7 Pick. 8, 9; Chalmer v. Bradley, 1 Jac. & W. 62; Webb v. Rorke, 2 Sch. & Lef. 672; Baker v. Whiting, 3 Sumner, 475, 486. The cestui que trust must pursue his remedy within a reasonable time. Ante 887 in note, where the cases to this point are cited. What shall be deemed a reasonable time cannot be exactly defined, but must depend upon the circumstances of the case, and the sound discretion of the court. See Butler v.

In Price v. Byrn (u), Lord Alvanley refused the aid of the Court because the bill had been delayed twenty years (I).

*49. But laches does not apply to a body of creditors, who may, therefore, claim the aid of equity at a much more distant period after the sale than an individual can (x).

50. And although acquiescence may have the same effect as original agreement, and may bar such a remedy as this, yet the question as to acquiescence cannot arise until it is previously ascertained that the cestui que trust knew his trustee had become the purchaser; for, while the cestui que trust continued ignorant of that fact, there is no laches in not quarrelling with the sale upon that special ground (y) (1).

51. A purchase by a trustee from his cestui que trust is merely malum prohibitum, and not malum in se. It is one of those contracts which admit of confirmation by the injured party (2). But to give effect to a confirmation in a case like this, the party confirming must not be under the control of the person whose title is to be confirmed, and he must have a full knowledge of all the circumstances, and of his power to set aside the former transactions (≈)(3).

(u) 5 Ves. jun. 681, cited; and see Norris v. Neve, 3 Atk. 26; Gregory v. Gregory, Coop. 201.

(x) Whichcote v. Lawrence, 3 Ves. jun. 740; and a case before the Court of Exchequer, 6 Ves. jun. 632, cited; York-Buildings Company v. Mackenzie, 8 Bro. P. C. by Tomlins, 42.

(y) Per Sir William Grant, 10 Ves. jun. 427; and see 2 Ball & Beat. 129; Charter v. Trevelyan, 11 Cla. & Fin. 714.

[Chalmer v. Bradley, 1 J. & W. 51.]

(z) Morse v. Royal, 12 Ves. jun. 355; Murray v. Palmer, 2 Scho. & Lef. 474; Roche v. O'Brien, 1 Ball & Beatty, 330; Wood v. Downes, 18 Ves. jun. 120; Dunbar v. Tredennick, 2 Ball & Beatty, 304. Vide supra, p. 277; Cockerell v. Cholmeley, 1 Russ. & Myl. 418; Small v. Attwood, You. 407; 6 Cla. & Fin. 232. [Gregory v. Gregory, Cooper, 201.]

(I) See now 3 & 4 Will. 4, c. 27, s. 24, 25, 26, 27; supra, ch. 11, s. 5.

Haskell, 4 Desaus. 702; Bergen v. Bennett, 1 Caines Cas. 1; Jennison v. Hapgood, 7 Pick. 1, 8, 9; Gregory v. Gregory, Cooper, 201; Purcell . M'Namara, 14 Sumner's Vesey, 91; Hawley v. Cramer, 4 Cowen, 717, 743; Dobson v. Racey, 3 Sandford, 61; Ward v. Smith, ib. 592, 596; Bell v. Webb, 2 Gill. 164, 170; Michoud v. Girod, 4 Howard, S. C. 504, 661.

(1) See Prevost v. Gratz, 1 Peters, C. C. 370.

(2) Ante 887, note, where cases are cited to this point; Story Agency, $210. (3) Beeson v. Beeson, 9 Barr. 279.

[*900]

*CHAPTER XX.

PURCHASES; PURCHASES IN THE NAMES OF THIRD
TRUST-MONEY: AND OF THE
PURCHASE AND SETTLE AN

OF JOINT

PERSONS; AND PURCHASES WITH
PERFORMANCE OF A COVENANT

ΤΟ

ESTATE,

SECTION 1.

OF JOINT PURCHASES.

1. Equal or unequal advance of pur- 13. Abatements on incumbrances enure

1. WHERE two or more persons purchase lands, and advance the money in equal proportions, and take a conveyance to them and their heirs, this is a joint-tenancy, that is, a purchase by them jointly of the chance of survivorship, which may happen to the one [*901]

of them as well as to the other (a) (I) (1), but where the proportions of the money are not equal, and this appears in the deed itself, this makes them in the nature of partners (b) (2); and however the legal estate may survive, yet the survivor shall be considered but as a trustee for the others in proportion to the sums advanced by each of them (3).

2. So if two or more make a joint purchase, and afterwards one

(a) See Moyse v. Gyles, 2 Vern. 385; York v. Eaton, 2 Freem. 23; Thicknesse v. Vernon, 2 Freem. 84; Anon. Carth. 15; and see 3 Atk. 735; 2 Ves. 258;

Rea v. Williams, MS. Appendix, No. 24; Aveling v. Knipe, 19 Ves. jun. 441. (b) Sec 2 Ves. 258.

(I) This distinction has not been thought satisfactory. A writer, to whom the Profession is under great obligation, observes, that if the advance of consideration, generally, will not prevent the legal right, the mere inequality of proportion, which may naturally be attributed to the relative value of the lives, cannot have that effect. See 9 Ves. jun. 597, n. (b). The distinction, however, seems founded on rational grounds. Where the parties advance the money equally, it may be fairly presumed that they purchased with a view to the benefit of survivorship; but where the money is advanced in unequal proportions, and no express intention appears to benefit the one advancing the smaller proportion, it is fair to presume that no such intention existed; the inequality of proportion can scarcely be attributed to the relative value of the lives, because neither of the parties can be supposed not to know, that the other may, immediately after the purchase, compel a legal partition of the estate, or may even sever the joint-tenancy by a clandestine act.

(1) See Jackson v. Jackson, 9 Sumner's Vesey jr. 591, 597 in note. The general rule, in the United States, is, that all estates, vested in two or more persons, are to be deemed tenancies in common, unless a different tenure is clearly expressed or implied in the instrument creating the estate. The subject is very generally regulated by statutes in the several states. In some of the states particular kinds of conveyances are excepted, as mortgages. In some, conveyances to persons holding peculiar relations are excepted; as to husband and wife; to trustees and executors as such. The incident of survivorship has, in several states, been entirely abolished, and in others it has been very much restricted, and reduced in the extent of its operation. "The doctrine of survivorship is not in accordance with the genius of our institutions." Per Morton, J., in Burnett e. Pratt, 22 Pick. 557. The law upon this subject has been stated with his usual clearness by Mr. Chancellor Kent. 4 Kent, (6th ed.) 360, et seq. The law as it exists in each of the United States has been stated by Mr. Greenleaf, in 1 Cruise Dig. vol. 2, Tit. 18, ch. 1, §2, in note, where the statutes and decisions are referred to.

(2) In Randall v. Phillips, 3 Mason, 378, Mr. Justice Story decided, that, under the Statute of Rhode Island, which provides that all deeds, &c., to two or more persons shall be taken to create tenancies in common, unless the words clearly and manifestly show an intention to create a joint tenancy, a mortgage to four persons affords no proof that the parties intended a joint tenancy in the mortgage. See Caines v. Grant, 5 Binney, 119. The contrary had, however, previously been held in Massachusetts, under a statute similar to that in Rhode Island, in Appleton v. Bird, 7 Mass. 131; Goodwin v. Richardson, 11 Mass. 469; and reaffirmed in Burnett v. Pratt, 22 Pick. 556; and so in Maine, Kinsley e. Abbott, 19 Maine; 430, but in Burnett v. Pratt, it was decided that a mortgage, given to two persons to secure their several demands, is several and not joint; each has a right to enforce his claim under the mortgage, in a form adapted to his case; and of course the surviving mortgagee cannot maintain an action on the mortgage to enforce payment of the debt due to the deceased mortgagee. Even where a joint debt is secured by mortgage, after foreclosure, the mortgagees become tenants in common. Burnett v. Pratt, 22 Pick. 558; Goodwin v. Richardson, 11 Mass. 469. See Deoney v. Hutcheson, 2 Randolph, 183; 2 Story Eq. Jur. §1206. (3) See 2 Story Eq. Jur. §1206; Caines v. Grant, 5 Binney, 119.

of them lays out a considerable sum of money in repairs or improvements, and dies, this shall be a lien on the land, and a trust for the representative of him who advanced it (c) (1).

3. And where the money is advanced in equal proportions, so that the purchasers are joint tenants in equity as well as at law, a conveyance by the purchasers to a trustee without any consideration, and without any express intent to sever the joint-tenancy, will not have that effect; but the trust estate will go to the survivor in the same manner as the legal estate would have done (d).

4. In all cases of a joint undertaking, or partnership, although the estate will survive at law, yet the survivor will in equity be a trustee for the representative of the deceased partner as to his share (2).

(c) Per Master of the Rolls, Lake v. Gibson, 1 Eq. Ca. Abr. 290, pl. 3.

(1) See 2 Story Eq. Jur. §1236.

(d) Rea v. Williams, MS. Appendix, No. 21.

(2) The rules and principles by which partners hold real estate, purchased by them with partnership funds and for partnership purposes, have been considerably discussed in America, and various decisions have been made on the subject. Several late decisions in Massachusetts have established the doctrine for that state, that where real estate is purchased by partners with the partnership funds, for partnership use and convenience, although it is conveyed to them in such a manner as to make them tenants in common, yet, in the absence of an express agreement, or of circumstances, showing an intent that such estate should be held for their separate use, it will be considered and treated, in equity, as vesting in them in their partnership capacity, clothed with an implied trust, that they shall hold it until the purposes for which it was so purchased shall be accomplished, and that it shall be applied, if necessary, to the payment of the partnership debts. Upon the dissolution of the partnership, by the death of one of the partners, the survivor has an equitable lien on such real estate for his indemnity against the debts of the firm, and for securing the balance that may be due to him from the deceased partner, on settlement of the partnership accounts between them; and the widow and heirs of such deceased partner have no beneficial interest in such real estate, nor in the rent received therefrom after his death, until the surviving partner is so indemnified. Such was the decision in Dyer v. Clark, 5 Metcalf, 562. In Howard r. Priest, 5 Metcalf, 582, 585, Mr. Chief Justice Shaw, in giving the opinion of the court, said::-"We are of opinion, that the conclusion to which the authorities lead, is, that real estate purchased out of partnership funds, to be used and applied to partnership purposes, and considered and treated by the partners as part of the partnership stock, is to be deemed and considered, so far as the legal title is in question, as estate held in common, and not in joint tenancy; but as to the beneficial interest, it is held in trust, each holding his property in trust for the partnership, until the partnership account is settled and the partnership debts are paid. It is a trust arising from the actual or implied agreement of the parties, and from the mutual relation in which they stand to each other. It shall not be considered a joint tenancy at law, because it would be contrary to the policy of the law, by giving a jus accrescendi at common law, in case of survivorship, where no such intent or purpose can be presumed. The rule of holding it a trust estate, in regard to partners, is founded on the equity of the surviving partner, who, being made chargeable with all the debts of the firm, ought to have the control of all the partnership property, as assets, first, for the payment of the debts of the firm; and, secondly, for the restoration to himself, on settlement of the partnership account, of that part of the capital which has been contributed by him to the common stock. The true and actual interest of each partner in the common stock is the balance found due to him after the payment of the debts and the adjustment of the partnership ac