Leonards, after admitting the difficulty in applying the statute to charges upon land as distinct from the land itself, said, it is perfectly settled that the effect of a charge to be raised by express trust falls within the section 25 as much as an express trust of the land itself (h). If such charges be not within that section, they would seem to be equally excluded from the section 24. Therefore, in the case of a charge upon an estate vested in a trustee upon trust to raise such charge, if the right of the trustee to the estate be barred by the statute, the cestui que trust of the charge cannot enforce the trust for raising it (i), even though he was, when the bar to the trustee was complete, under disability. So in the case of an annuity given to trustees for a charity, and the estate itself, subject to the annuity, given to other persons beneficially, and where time has operated against the trustees as a legal bar to the annuities, to relieve the charity in equity would probably be found difficult (j). In Hunt v. Bateman (k), Pigot, C. B., said, the judgment of the court in that case involved no assent to the proposition, that if the right of the trustee to the estate devised to him in trust were barred by the Statute of Limitations, the cestui que trust of the charge could successfully rely upon the trust for the purpose of recovering it out of the lands. Equitable owners, as well as legal ones, by the section 24, and by reference, the preceding provisions, and, in cases of express trusts, by the section 25, under certain circumstances are now barred of their claims to land or rent, enjoyed against them by third-persons. The equitable rights of such owners, distinguished from those equitable rights arising under express trusts, are the subjects of (h) Burrowes v. Gore, 6 H. L. C. 907. (i) See 2 De Gex, M. & G. 597; 10 Ir. Eq. Rep. 360. (j) Per Sugden, L.-C., 2 Jo. & La T. 198. (k) 10 Ir. Eq. Rep. 360. the former section, and their equitable rights under such trusts are the subject of the latter section (1). trust inter se. Whether cestuis que trust under express trusts Cestuis que claiming adversely inter se are within the section 24, or whether, as between or amongst themselves, the section 25 controls and enlarges the operation of the former section, seems to be, at least, questionable. In Burroughs v. M' Creight (m), lands were vested in trustees in trust for five persons in common in fee, but the trustees never acted, and four of the five cestuis que trust received the whole of the rents for more than twenty years, and were held to have acquired a title to the whole estate notwithstanding the express trust. And in Knight v. Bowyer (n), Sir John Romilly, M. R., seemed to think that the receipt by one of several cestuis que trust of the whole of the profits would be adverse to the rest, and, if for a sufficient period, would be a bar to the others; and in the same case, on appeal to the Lords Justices (o), it was argued for the appellants, that the sect. 25 applies only as between the cestui que trust and the trustee, and not as between cestui que trusts, although under an express trust, where some have received to the exclusion of others; but, said Turner, L. J., "the contrast between the 24th and 25th sections points, I think, to the opposite conclusion. The case between the cestui que trusts would have fallen within the 24th section, if uncontrolled by the proviso (p). That section furnishes the general rule as to equitable estates, and the proviso being general, it is reasonable, I think, so to construe it as to except, where there is an express trust, all the cases which would otherwise have fallen within the general rule. The reasonableness of this construction appears more strongly when we consider what would be the re (7) 4 Hare, 155. (m) 1 Jo. & Lat. 290. (n) 23 Beav. 601. L. (0) 2 De Gex & J. 421. T medies in the case of an express trust. If the right against the trustee is preserved, as it undoubtedly is, there would be the consequent right to a receiver, and how could the right to a receiver be maintained if the section be construed to create a bar as between the cestui que trusts? I do not see how, in that case, the land or rent could be recovered at law. Besides, it is not very reasonable to suppose that the remedy was intended to be preserved against the trustee, but destroyed against the persons who had received the benefit of the breach of trust." In the case last noticed, the suit was by one cestui que trust against the others, and also against the trustee; and the receipt of the rents by such one was not of sufficient duration that it would have, if it could have, conferred a title. It is also to be observed, that the possession of one or more of several cestuis que trust is the possession of all of them (2); that the possession of any or all of them is the possession of and under, and their acts, when adopted by the trustee, are the acts (r), and if none of them be in possession, but some be merely permitted to receive the rents or otherwise to deal with the property in the possession of tenants, they are the agents or bailiffs, of the trustee (s); that the possession of the trustee is the possession of all the cestuis que trust (t); and therefore the possession, the receipt, and other acts and dealings of or by some of the cestuis que trust, are the possession, the receipt, and other acts and dealings of and by all of them. It would therefore follow, that in all cases of express trust, where some one or more of several cestuis que trust has or have held, or received the rents of, or other (q) Vin. Ab. tit. "Possession," (C) 8. (r) Faussett v. Carpenter, 2 Dow & C. 232; 7 Bing. 599; 4 Hare, 417; Garrard v. Tuck, 8 C. B. 231; Knight v. Bowyer, 23 Beav. 609; 2 De Gex & J. 421. (8) Melling v. Leak, 16 C. B. 652; see also Jenkins v. Milford, 1 Jac. & W. 629. (t) Hovenden v. Lord Annesley, 2 Sch. & Lef. 633; Chalmer v. Bradley, 1 Jac. & W. 67; 30 Beav. 175; 9 Ir. Eq. Rep., N. S. 140, 472; Lister v. Pickford, 11 Jur., N. S. 649; 13 W. R. 827. wise dealt with, in exclusion of the other or others, the trust property, the rights of the latter are preserved by the 25th section, even against the assignee of the former, although for value. trust not The mere wrongful receipt from express trustees by Cestui que a stranger of the rents of the trust estate for more than affected by twenty years is no bar to the cestui que trust. Thus, receipt of rents by a stranger such trustees taking possession of lands and paying the from the rents to a person, whom they erroneously supposed to trustee. be the cestui que trust, for more than twenty years after the right of the person rightfully sustaining that character accrues, their possession is the possession of the latter person, and such receipt by the former is no bar to his right (u). several persons for less than twenty years. The legal estate in property was vested and outstand- Nor by the ing in a trustee, and the equitable owner of it died in- possession by testate in 1818. A person having no title entered into successively possession of it and received the rents and profits thereof for eighteen years and a half. On his death another person, being as little entitled as himself, entered into possession and received the rents for one year and a half more. After this, for four years, the tenants refused to pay their rents to any one, and they alone were in possession; at length, after the lapse of twenty-four years from the death of the equitable owner, the trustee filed a bill claiming no interest therein himself, but praying the court to ascertain and declare who were the persons entitled to the property, and the court takes possession of the property accordingly by its receiver. The court cannot keep the possession for itself, and has to determine who is the person entitled. The statute, although it imposes a bar to the institution of a suit after twenty years to recover possession, imposes no bar to the court declaring who is entitled to an estate in the possession of the court itself (v). (u) Lister v. Pickford, 13 W. R. 827; 11 Jur., N. S. 649, S. C. (v) Dixon v. Gayfere (No. 1), 17 Beav. 421. Whether right 2 & 3 Will. 4, cc. 71, 100, against a The operation of the statutes 2 & 3 Will. 4, cc. 71 acquired under and 100, on the matters embraced by them, as between trustee and cestui que trust on the one hand and third trustee be valid persons on the other hand, whether the right when valid at law as against the trustee is also valid in equity as against the cestui que trust, may involve some nice questions. against cestui que trust also. When the per son must be in esse. These two statutes are Statutes of Limitations, and are in pari materiâ with, but operate differently from, the 3 & 4 Will. 4, c. 27 (x). One of the principal subjects of the chapter 27 is the corpus of land itself when claimed by one or more person or persons, not having the possession of it, against another person or other persons having that possession. But the subjects of the cc. 71 and 100 are rights, not to land itself, but in, over or upon land, and not claimed by one person against another person, as distinct from and independent of the land itself, but by one person against another person not having the same rights, but having the land itself in, over or upon which such rights are claimed, and those rights not adverse to but consistent with the possession of the land by another person (y). The section 7 in c. 71, and the corresponding section 6 in c. 100, would seem to embrace only those cases where the persons under the disabilities mentioned in those sections are the legal owners of the land in, over or upon which the right may be claimed, and not those cases where such persons are merely equitable owners of the land; and it would seem that when, in any case, the right is valid against the legal owners of the land, the right is also valid against the equitable owners also, although under any of such disabilities. The persons to whom a right accrues must be in esse when it first accrues, and until in esse they are not within the operation of the law (z). (a) Ante, p. 61; post, Chap. X. Those persons who (z) Att.-Gen. v. Persse, 2 Dru. & W. 67; Webster v. Webster, 10 |