the suit, instituted within six years after the termination of the minority (i). Such a suit, however, is neither a suit for the recovery -and 3 & 4 of rent within the meaning of the earlier sections of the Will. 4, c. 27. 3 & 4 Will. 4, c. 27, nor a suit for the recovery of arrears of rent within the 42nd section of the same chapter, but only a suit by an infant, upon attaining twenty-one, against his guardian for an account, and that statute does not at all affect such a suit (k). But even if the latter statute affected such a suit the consequence would not follow that because the infant might treat the stranger as his bailiff for the purpose of enforcing the accounts, the infant may in all cases so treat him for the purpose of escaping from the effect of this statute. That is open to considerable argument, especially as that statute provides that ten years only shall be allowed after the termination of the disability of infancy for the person who has attained majority to assert his rights; a provision which, it has been justly observed, must be rendered altogether nugatory if it be held that in every case where a stranger enters upon an infant's estate he enters as bailiff, because if that were so time would not begin to run against the infant until he attained twenty-one (1). It would seem, then, that the possession of the lands Result as to of an infant by his legal guardian, or by a relative in this relation. the position of a quasi guardian, although for more than twenty years after the minority has ceased, will not confer on such guardian any title to the lands against and adversely to the ward; but that the possession of them by a quasi guardian of, but who is a stranger to, the infant, for twenty years and upwards, will confer on such a guardian a title to the lands against and adversely to his ward (m). (i) Hicks v. Sallitt, 3 De Gex, M. & G. 782. (k) Per Turner, L. J., 3 De Gex, M. & G. 816. (m) See Thomas v. Thomas, Trustee and cestui que trust. Creation in cases of express trust of -realty, The next special relation we notice is that of trustee and cestui que trust. Although the trustee has the legal interest and the cestui que trust has not, at law, any interest, and both together are considered in equity, in relation to strangers, as one person (n); yet as between the trustee and the cestui que trust themselves they are, in equity, treated as distinct persons, and the trustee is regarded as the protector of not only the original cestui que trust (o) and his interest, but also all persons claiming his interest through him (p) and their interests. This relation is of more or less force, and is less or more easily determined, as the trust under which it originates is expressed or implied. For a vast difference exists between things to which the denomination of trust is given (q). This relation in cases of express trust is created by act of parties, and, when concerning lands, tenements and hereditaments (r), whether copyholds (s), freeholds (t) or perhaps leaseholds (u), and when the trusts do not arise or result by the implication or construction of law on conveyances (r), or are not transferred or extinguished by act or operation of law (y)—and these are said to be only trusts and equitable interests (z) -the trust, that is, the evidence and recognition of the trust itself merely, and not the origin of the transaction in which the trust was created (a), must be declared by writing signed by the party enabled to declare it. But in the instrument declaring the trust, when formally 151. (t) Leman v. Whitley, 4 Russ. 423; Dale v. Hamilton, 2 Phill. 266. (u) Riddle v. Emmerson, 1 Vern. 108. (x) Davies v. Otley, 12 L. T. R., N. S. 789. (y) 29 Car. 2, c. 3, s. 18. (z) Lamplugh v. Lamplugh, 1 P. W. 111. (a) 13 Ves. 74; 2 Jo. & Lat. 690; 2 Phill, 275. and technically prepared, the word "trust," although generally used, is not necessary (b); and accordingly repeated decisions have established, that words precatory, recommendatory or expressing belief, and the like, where the property and the objects for whom it is intended are certain, create, by construction of courts of equity, trusts (c), which, although various writers have designated as implied trusts, are, it is submitted, all properly express trusts. When the relation is concern- -personalty. ing pure personal estate, the trust, as before the statute, may be declared verbally (d). trustees. This relation may also arise not only between the When persons person originally constituted the trustee and the persons original trustaking from beneficially interested, but also between any person tee become taking from such original trustee (e) a conveyance of the property, either as a volunteer and with or without notice of the trust (ƒ), or for value, but with direct notice of, and under circumstances not warranted by, the trust (g), but not with an artificial constructive notice (h) on the one hand, and the persons so inte rested on the other. (b) Halliday v. Hudson, 3 Ves. 210; 2 Jo. & Lat. 197; Att.-Gen. v. Dean and Canons of Windsor, 23 Beav. 679. See also King v. Denison, 1 Ves. & B. 92; and the cases cited Rop. Leg. c. 22, s. 6. (c) See Cary v. Cary, 2 Sch. & Lef. 189; Paul v. Compton, 8 Ves. 380; Foley v. Parry, 5 Sim. 138; 2 Myl. & K. 138; Birch v. Wade, 3 Ves. & B. 198; Forbes v. Ball, 3 Mer. 437; Tibbets v. Tibbets, Jac. 317; Hart v. Tribe, 18 Beav. 215; Prevost v. Clarke, 2 Mad. 458; Meredith v. Heneage, 1 Sim. 553, 555. (d) Bayley v. Boulcott, 4 Russ. 345; Benbow v. Townsend, 1 Myl. & K. 506; M'Fadden v. Jenkyns, 1 Phill. 153. (e) Mansell v. Mansell, 2 P. W. 678; Brandlyn v. Ord, supra; L. Snelling v. Squint, 2 Ch. Ca. 47; (f) Mansell v. Mansell, 3 P. (g) Att.-Gen. v. Christ's Hospital, 3 Myl. & K. 344; Hicks v. Sallitt, 18 Jur. 915; 3 De Gex, M. & G. 782; S. C., Thompson v. Simpson, 1 Dru. & W. 459. (h) Bell v. Bell, Lloyd & G. 44. See also Stewart v. Marquis Conyngham, 1 Ir. Eq. Rep., N. S. 534. U So if a purchaser for value take with notice that an unascertained and undefined portion of the property is subject to a trust, leaving the portion to be ascertained afterwards, the trustees would have a right to make out a title to so much at least of the property as in truth is subject to the trust; and if the purchaser take a conveyance of the entire property, with a knowledge of the claim of the trustees to some part, and that part not ascertained by metes and bounds, or by an express admeasurement, he cannot say that as to any specific part he is, upon his conveyance, a purchaser without notice (m). But a person taking a conveyance of trust property either from the trustee for value and without notice of the trust, or as a volunteer with, but from a purchaser for value from the trustee without, such notice (n), or without, but from a purchaser with (o), notice, except in the case of a charity (p), does not become a trustee. And where he acquires the legal title and has paid his money in ignorance of the right of another party, equity will not deprive him of the benefit of that title. If, however, he have only an equitable interest, the owner of a prior equitable interest will, in equity, generally be preferred, under the general rule qui prior est tempore potior est jure (q). But even when he has only an equitable interest, but is a purchaser of it for value and without notice, he will be protected in equity as well against a legal as against an equitable title (r). A person may also become an express trustee by assuming to act and acting in or under an express trust (s). (m) See Att.-Gen. v. Flint, 4 Hare, 147. (n) Harrison v. Forth, Pre. Ch. 51; Brandling v. Ord, 1 Atk. 571; Sweete v. Southcote, 2 Bro. Rep. 66. (0) Ferrars v. Cherry, 2 Vern. 384; Mertins v. Joliffe, Ambl. 313; Peacock v. Burt, App. Coote, Mortg., 2 Ed. 693. (q) 4 Hare, 156. () V. & P. 14th Ed. c. 25. (8) See Life Association of Scotland v. Siddal, 3 De Gex, F. & J. 58. of the rule relation. The consideration in this relation originating in an The principle express trust is, not only what was done, but what it excluding a was the duty of the trustee to do. It is the duty of the bar in this trustee to take care of the interest of the cestui que trust, and there are many cases in which the trustee is not permitted to do anything for his own interest adverse to the interest of the cestui que trust (t). The trust being express (u), and no doubt as to the origin and existence of it (x), and so long as the relation continues, and the only circumstance is, that the trustee does not perform the trust (y), the principles of justice and the interests of mankind require that lapse of time should not enable mere trustees to appropriate to themselves the property of others (z). This is the broad general rule. assisted trustee. Even in cases of express trust, however, where a When cestui cestui que trust under no disability has had full know- que trust not ledge of the trust and of his rights under it, and the against his trust has been for a long period repudiated by the trustee, and the cestui que trust, in relation to his rights, has been passive, and has acquiesced in the repudiation, a court of equity, under such circumstances, would refuse to assist the latter against the former (a). cases of ex This relation, in all cases of express trust of land or Modification rent, has received, by the 3 & 4 Will. 4, c. 27, an im- of the rule in portant modification. Now, when land or rent subject to an express trust is conveyed for value by the trustee, even with direct notice of the trust, the relation of trus (t) 4 Bli. 96; 3 De Gex, F. & J. 73; 2 Rose, 412; 8 Hare, 220; 9 H. L. C. 376. (u) Mansell v. Mansell, 3 P. W. 681; Hovenden v. Lord Annesley, 2 Sch. & Lef. 607; 2 Jac. & W. 177; 2 Myl. & C. 309; 6 Hare, 531; Wedderburn v. Wedderburn, 2 Keen, 749; 4 Myl. & C. 53; 1 Drew. 393. See also Att.-Gen. v. Fishmongers' Co. 5 Myl. & C. 17. (x) 5 Myl. & C. 17. (y) 2 Sch. & Lef. 633; Wed- (a) Harmood v. Oglander, 6 press trust. |