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be possible, a court of equity, after the lapse of a great length of time, would raise such a presumption (c).

c. 27.

It has however been now solemnly determined by the Now within highest court of judicature (d), that all persons, as well 3 & 4 Will. 4, corporations as natural persons, who hold lands for charitable purposes, are within the operation of c. 27. The sections 24 and 25 apply in terms to all trusts. Charities are trusts, a favoured sort of trust, no doubt; but still a charity is a trust and nothing more. Trusts generally are mentioned, and that includes charitable trusts, unless they are expressly excepted, and there certainly is no such exception. Therefore a grantee in fee for value of persons in the actual possession of, though not having the legal estate in, lands devoted to charitable purposes (e), and a lessee of such lands under a lease at a small nominal rent (f), acquire against the trustees and the cestuis que trust of such lands, by the possession thereof for twenty years, an unimpeachable title thereto. A lease is an alienation pro tanto, and, if for a long term at a peppercorn rent, would be equivalent to an absolute alienation (g), and even for a dry term and no rent paid and possession under it would give the lessee a title after twenty years (h).

In the Mag. Coll. case the alienation was by a rector and churchwardens to a stranger; in Attorney-General v. Payne the alienation was by an eleemosynary corporation and ostensibly to a stranger, but in reality to him as a trustee for the master of the hospital. But Sir J. Romilly, M. R., said the character of the alienee could not affect the question; it might affect the question of the breach of trust, and it might induce the court to hold that the lease could not be supported, if

(c) See Att.-Gen. v. Christ's Hospital, 3 Myl. & K. 344.

(d) Mag. Coll. Oxon. v. Att.Gen., 6 H. of L. Cas. 189.

(e) Mag. Coll. Oxon. v. Att.Gen., supra.

(f) Att.-Gen. v. Payne, 27 Beav. 168; Att.-Gen. v. Davey, 4 De Gex & J. 136.

(g) 27 Beav. 174.

2) See + De Gex & J. 139.

Whether within 2 & 3

granted to the master, though it could not be reconciled with the case of Wilson v. Master of the Rolls (i). As soon as the lease was granted the lessee held adversely to the rights of the charity, to the extent of the alienation contained in the lease (k). The case in Burrow, referred to by his Honor, was the case of a lease granted by Sir J. Jekyll, M. R., to a trustee for himself; and on a special verdict at law, the lease so granted was held to be valid.

In the 2 & 3 Will. 4, cc. 71 and 100, are included in Will. 4, c. 71. express terms, not only the Crown and the Duke of Cornwall, but also all corporations and all natural persons. But whether corporations sole, spiritual and eleemosynary, are within the section 3 of the chapter 71 may be a question (1).

Trustees and
cestuis que

trust, together
or separately
as to other
persons.

Before 3 & 4

Will. 4, c. 27,

and since

where it is not applicable,

In different persons and in the same land ownerships of different natures frequently co-exist. Thus land may be vested in A. in trust for B. In a court of law A., the trustee, is regarded as the owner of the land, having the legal interest, the person in whose name all actions must be brought, and B., the cestui que trust, as having no interest (m); but, in equity, B. is considered as actually and absolutely seised of the freehold (n), and in relation to strangers he and A., the trustee, are considered, as but one person (o). In such cases the right of the trustee only, or of the cestui que trust only, or of both of them together, may be lost by the possession by a third person for the period fixed by the law.

Before the 3 & 4 Will. 4, c. 27, and even since, as respects those matters to which it does not apply, when the trustee was and is barred of his right at law, the cestui que trust, although under disability (p), was and

(i) 4 Burr. 1975.
(k) 27 Beav. 174.

(1) See and consider c. 71, s. 7,
and c. 100, s. 6.

(m) 7 Bing. 599.

(n) Per Lord Mansfield, Bur

gess v. Wheate, 1 Eden, 226.
(0) 4 Hare, 417.

The

(p) See The Earl v. Countess of Huntingdon, 3 P. W. 310, n. (G); Wych v. The East India Co., Ib. 309.

trust was and

may be also barred in equity by the operation of the cestui que Statute of Limitations operating in a court of law is barred when against the trustee (q). Where, said Lord Hardwicke (r), the trustee is. a cestui que trust and his trustee are both out of possession for the time limited, the party in possession has a good bar against them both. A cestui que trust, said Lord Redesdale (s), is always barred by length of time operating against his trustee. If the trustee does not enter and the cestui que trust does not compel him to enter, as the person claiming paramount, the cestui que trust is barred. If, said Sir T. Plumer, M. R. (t), there is a legal bar from the statute it is constantly adopted in equity. It is incumbent on the plaintiff to make out an equitable title; to do this he must show that the legal title is not barred If the bar attaches on the legal title it attaches also on the equitable title, and precludes the plaintiff from the equitable relief he seeks.

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So, where a trust fund is lent on mortgage, with notice of the trust, and the trustee, the mortgagee, is barred, the cestuis que trust are also barred. If, said the court, the right of the trustee to recover be bound, their right is also bound. They have no direct right of suit against the mortgagor or the mortgaged premises: they must sue through their trustee, and if by his default the right to recover the money is lost, he is answerable to them, and he can, of course, have no protection from lapse of time (u).

Sir Joseph Jekyll, M. R., indeed said (x), that the forbearance of trustees in not doing what it was their office to have done shall in no sort prejudice the cestui que trust, since at that rate it would be in the power of

(q) 1 Atk. 591; 2 Jac. & W. 154; 1 Sch. & Lef. 379; 3 P. W. 309, 310; 2 Ball & B. 75; 8 Ves. 131; 9 Cl. & F. 219; 1 Jac. & W. 532.

(r) Llewellin v. Mackworth, 2 Eq. Ca. Ab. 579.

(8) 2 Sch. & Lef. 629.
(t) 1 Jac. & W. 556.

(u) In re Scott, 8 Ir. Eq. Rep.,

N. S. 316.

(x) Lechmere v. Earl of Carlisle, 3 P. W. 211.

The reason of such bar.

Since that statute as to -land and rent,

trustees, either by [not] doing, or delaying to do, their duty to affect the right of other persons, which can never be maintained (y). But Lord Manners, C., said (z), that the opinion of Sir J. Jekyll had been often denied, and is contrary to many decisions.

When before the 3 & 4 Will. 4, c. 27, a cestui que trust was barred of his claim in equity by the Statute of Limitations operating at law as a bar to his trustee having the legal estate, the reason probably was that although courts of equity, in relation to equitable titles, adopted, either by analogy, or by an application of the maxim æquitas sequitur legem, the time fixed by the statute as a bar at law, yet as the statute contained no provisions applicable to claims by a cestui que trust against the persons liable at law to their trustee, those courts could not, or would not, in relation to such claims, adopt in either way the statute as between the cestui que trust and those persons, but could only leave the cestui que trust and his title to the protection of the trustee, to be asserted by him through his legal title at law (a).

The 3 & 4 Will. 4, c. 27, however, in cases of claims to land and rent within section 1, gives referentially, by express enactment, to claimants in equity the same time, and with the same saving of disabilities, as to claimants at law; and therefore now, although a trustee may have lost his title to land or rent at law, his cestui que trust under disability may not necessarily have lost his title in equity.

In the case Attorney-General v. Magdalen College, Oxon. (b), Sir J. Romilly, M. R., said, it is very necessary to keep in view the distinction between a trustee and a cestui que trust. A trustee would in any case under the statute be barred from recovering the land

(y) See also 29 Beav. 190.

(z) Pentland v. Stokes, 2 Ball & B. 75.

(a) See Wych v. The East

India Co., 3 P. W. 309; In re
Scott, 8 Ir. Eq. Rep., N. S. 316.
(b) 18 Beav. 241.

after the twenty years had elapsed; but the cestui que trust would not be barred until the time prescribed by the act had elapsed after the period when he could have maintained a suit in equity . . . . The time which has elapsed might constitute a bar to prevent the trustee from suing, but would not necessarily do the same against their cestui que trust. The trustee for an infant or other person under disability may, by his own act, be disqualified from taking any step to recover the property of which he is a trustee, but this disqualification will not affect the cestui que trust, whose right to sue must be determined on its own ground, apart from the conduct or misconduct of the trustee (c).

Where the cestui que trust and the trustee have both legal interests, as where the latter has a term, and the former the legal freehold merely or the legal inheritance immediately expectant, then, practically though not theoretically, the cestui que trust may be barred by the possession of a third person operating as a bar to the trustee (d).

In cases of claims to advowsons and to the other sub-advowsons, jects embraced by c. 27, not being land or rent, however, that chapter contains no saving of disabilities; and therefore, unless the saving of disabilities contained in the 3 & 4 Will. 4, c. 42, which is in pari materiâ with c. 27, can be extended to such cases (e), it would seem that in all such cases, wherever a trustee is barred of his legal right, the cestui que trust, although under disability, is also barred of his equitable right (ƒ).

Charges upon land have been said to be not within charges on the section 25 of the chapter 27 (g). But Lord St.

(e) See also 6 H. L. C. 216; Melling v. Leak, 16 C. B. 652; Quinton v. Frith, Ir. L. R., Eq. 396.

2

(d) See Doe d. Jacobs v. Phillips, 11 Jur. 692; see also Garard v. Tuck, 8 C. B. 231.

(e) See 2 Hare, 333.

(f) Vide supra, p. 268 et seq. (g) See Young v. Wilton, 10 Ir. Eq. Rep. 10; Knox v. Kelly, 6 Ib. 285; Hunt v. Bateman, 10 Ib. 360; Gyles v. Gyles, 9 Ib. 135.

land.

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