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sonal benefit to himself at the expense of his cestui que trust, but will be restrained by injunction from so doing. Sloo v. Law,* 3 Blatch., 459.

$ 233. enforcement of charitable use. The proper courts in this country will interfere to prevent an abuse of the trusts confided to British corporations holding lands here to charitable uses, and will aid in enforcing the due execution of the trusts; but neither those courts nor the local legislature where the lands lie can adjudge a forfeiture of the franchises of the foreign corporation or of its property. Society for the Propagation of the Gospel v. Town of New Haven, 8 Wheat., 464.

S 234. The trustee process lies against assignees in favor of the United States where a debtor makes an assignment of his property in trust to pay custom-house bonds, or other debts due to the United States, to attach the funds to the amount of such trust, in the hands of the assignees, notwithstanding at law the assignment passed the property clothed with the trust to the assignees. United States 2. Langton, 5 Mason, 280.

$ 235. Ejectment.— A trustee having the legal title by deed can pass it by deed, which is sufficient in ejectment. If the trustee has abused his trust he may be called upon to account for it by those who have been injured, in a court of equity, but not in a court of law, which can only notice legal titles. Bayard v. Colefax, 4 Wash., 38.

$ 236. Plaintiff in ejectment cannot impeach the interest of the cestuis que trust under a trust deed alleged to be fraudulent. In case of fraudulent trusts the only remedy of the parties injured is in chancery, which has the exclusive jurisdiction of trusts and trust estates. Smith v. McCann, 24 How., 398.

$ 237. The plaintiff in ejectment who offers a deed in evidence cannot, in order to derive to himself a legal title under it, enlarge the interests and estates conveyed thereby by showing that the deed, which purports to be a deed of trust, conveyed the beneficial interest and not merely a barren legal title. Ibid.

$ 238. Where land is conveyed in trust for a certain purpose upon a condition which is never performed the grantors cannot maintain ejectment if there has been no reconveyance, Lincoln v. French,* 15 Otto, 614.

$ 239. Assumpsit.- An agreement by trustees to account according to the provisions of the trust cannot be enforced by assumpsit. Green v. Gordon,* i Fed. R., 142.

§ 240. For an account. - In a suit in equity against an executor and trustee for an account, where it appears that he acted in good faith in the execution of his trust, but misapprehended his duty in the particulars in respect to which he is charged in the final decree, he will, where a balance is found by a master's report to be due from him, be charged with interest only from the date of the report on the sum found due. But he will be charged with the costs of the suit, although he succeeded on several points in it and greatly reduced the amount claimed from him. The balance found was contested by him and the suit was necessary to recover it. Norman v. Storer, 1 Blatch., 593.

$ 241. In a suit for an accounting against a trustee, who was also the administrator of the estate from which the trust fund was derived, his accounts as such administrator cannot be re-examined. Barney v. Saunders, * 16 How., 535.

$ 242. By assignor against assignee in trust.— A debtor who makes an assignment of his estate to his assignee in trust to distribute the proceeds thereof among such of his creditors as release their claims within a specified time, and pay over to him, the assiguor, such portion of the proceeds as remain undistributed at the end of that time, may file a bill in equity making the assignee and the only creditor remaining unpaid parties defendant, may compel an account from the assignee of the property taken possession of by him under the assignment, and of the dispos of the same, and of all his dealings with the trust estate. Carpenter v. Robinsou, 1 Holmes, 67.

$ 243. Where an assignment is made for the benefit of creditors the assignor is entitled to the residue of the estate after his debts outstanding at the date of the assignment are paid; and by the extinguishment of the debts the assignee becomes the trustee of the assignur, and the latter becomes clothed with all the rights and powers of a cestui que trust to the same extent as the creditors were whose rights have been extinguished. Consequently the assignor is the proper party to come into a court of equity and pursue the trust estate, it appearing that it has been fraudulently or improperly parted with by the trustee. James v. Atlantic Delaine Co., 3 Cliff., 614; id., 622.

$ 244. The objection that one or more of the debts of the complainant, the assignor, have not been paid would be given much weight as between the assignor and assignee if the estate continued in the latter, and he was still engaged in executing the trust; but when it appears that the trust property has been fraudulently or improperly conveyed to another, not as a means of executing but as a means of extinguishing the reversionary interest of the assignor, the objection cannot be sustained in a suit against such other person by the complainant. Ibid.

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$ 245. United States as cestui que trast.- Where an estate is in course of administration in a state court the United States as cestui que trust is entitled, on bill filed, to have the will construed by a circuit court of the United States, and to have the directions of the court to the executors and trustees in regard to the proper method of executing the trust; and as auxiliary to this may require an account in order to ascertain what is the residue of the estate available for the purposes of the trust. United States v. Gillespie, 9 Fed. R., 74.

$ 246. Decree against trustee – Cestui que tros', how affected by.- A judgment in a case in which the trustees are parties defendant binds the cestuis que trust also. Kerrison v. Stewart & Co., 1 Hughes, 67.

$ 247. Certain property was conveyed to A. and B. as trustees for the Sutter Land Company, an incorporated association of which A. and B. were members. Judgment having been recovered against the association in a suit in which all the members, including A. and B., were made parties, the property was sold on execution. Held, that A, and B. had undivided interests in both the legal and equitable title to the property, and that their interest at least passed by the judgment and sale. French v. Edwards, 5 Saw., 266.

$ 248. Where a trustee has been authorized, by necessary implication, to act in such manner as he shall deem best for the interest of both debtors and creditors, he is the chosen representative of all, and whatever binds him must bind them. Hence, if a suit is brought against the trustee, assailing the validity of the trust, and the creditors do not intervene and ask to be made parties, they are bound by the decree, although it be against the trustee and the validity of the trust. Kerrison v. Stewart, 3 O.to, 155.

& 249. Limitations – Lapse of time – Laches.— The rule in equity as to the statute of limitations in cases of trusts is that those trusts which are mere creatures of a court of equity, and not within the cognizance of a court of law, are not within the operation of the statute. So long as there is a subsisting and continuing trust, acknowledged or acted upon by the parties, the statute does not apply. But other trusts, which are the ground of an action at law, are within in it. Under this rule the statute does not apply in the state of New Jersey to a bill by legatees or distributees. Wisner v. Barret, 4 Wash., 631.

$ 250. Although as between trustee and cestui que trust neither the statute, nor the rule of analogy, nor lapse of time, will in general affect the right of the beneficiary to redress, yet when the circumstances require it equity will refuse relief to the cestui que trust on account of delay, especially where the rights of third persons are concerned. Hence where the cestuis que trust kept silent for twelve years after the executor had settled his accounts, involving dealings in Confederate bonds, during which time all the parties tacitly acquiesced, and others gave positive assurances that they sanctioned all that had been done, and during which time he had contracted heavy indebtedness, held, that as the cestuis que trust had by their own neglect perpetuated his credit with the public, and thrown him off his guard in the contraction of debts, they must be considered as having lost their equitable right to relief. Etting v. Marx, 4 Hughes, 312; 4 Fed. R., 673.

$ 251. In 1863 A. sent B. funds in trust to invest in either cotton plantations, ranch property or town lots, in accordance with instructions given. In 1865 B. reported that the funds were invested. No further report was made by B. In 1875 A., hearing of B.'s whereabouts, filed a bill to compel a discovery and accounting, to which a demurrer was taken on the ground that the suit was barred by the statute of limitations. Held, that, in view of all the. facts, the disturbed condition of the country after the close of the war, the subsisting trust as disclosed by the bill, the complainant was entitled to discovery. Unless otherwise distinctly declared by the statute prescribing fixed periods for the commencement of suits, the cause of action is not ordinarily deemed to have accrued against, nor limitation to commence running in favor of, the trustee of a trust such as the above, until the trust is closed, or until the trustee, with the knowledge of the cestuis que trust, disavows the trust or holds adversely to the claim. Bacon v. Rives, 16 Otto, 99.

$ 252. B. died in 1793, seized of land now lying in the city of Detroit. C. and D., two of the heirs, who resided with B. at the time of his death, continued in possession of the premises, and one of them had the land confirmed to him as a French grant and obtained a patent. Upon bill filed in 1857, by other of the heirs who resided in Canada, claiming to be tenants in common with C. and D., held, that the case was one which depended upon the establishment of an implied trust to be raised by the evidence, and hence fell within that class of cases in which courts of equity follow the courts of law in applying the statute of limitations. Beaubien v. Beaubien, 23 How., 190.

$ 253. Time does not bar a direct trust, as between trustee and cestui que trust, till it is disavowed ; as, where a constructive trust is made out in equity, time protects the trustee, though his conduct was originally fraudulent, and his purchase would have been repudiated for fraud. So, where a party takes possession in his own right, and was prima facie the owner, and is turned into a trustee by matter of evidence merely; and where one intending VOL. XXVIII — 41

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to purchase the entire interest in the land took a conveyance without words of limitation to his heirs, passing only as an estate for life, the lapse of fourteen years after the expiration of the life estate was a protection to the heirs of the purchaser. Boone v. Chiles, 16 Pet., 177.

$ 254. What reasonable time is, within which a constructive trust can be enforced, de pends on the circumstances of the case; but there can be few cases where it can be done after twenty years' peaceable possession, by the person who claims in his own right, but whose acts have made him a trustee by implication. Ibid.

$ 255. The lapse of forty years, and the death of all the original parties, deemed sufficient to presume the discharge and extinguishment of a trust, proved once to have existed by strong circumstances; by analogy to the rule of law which after a lapse of time presumes payment of a debt, surrender of a deed, and extinguishment of a trust, where circumstances require it. Prevost v. Gratz, 6 Wheat., 481.

$ 256. Where there has been gross neglect and laches in seeking relief on the part of the cestui que trust for a breach of trust by the trustee, it is immaterial whether the trustee held a mere dry legal estate or whether his duties and responsibilities extended further. Hume v. Beale, 17 Wall., 336.

$ 257. Where it appears that all the grounds of action occurred between twenty and thirty years, and the alleged breach of trust took place thirty-seven years, before the institution of the suit, and the trustee is dead, a bill by the cestuis que trustent seeking to make the trustee's estate account for the breach of trust must be dismissed, although all the beneficiaries were women and the trustee a relative of theirs by marriage, and a lawyer. Ibid.

$ 258. A bill in equity to establish a trust will in case of long delay in bringing the action be dismissed on the ground of staleness, unless the trust be clearly established and the facts are shown to have been fraudulently and successfully concealed by the trustee from the knowledge of the cestui que trust. Badger v. Badger, 2 Wall., 87.

S 259. In general length of time is no bar to a trust clearly established to have once existed, and where fraud is imputed and proved, length of time ought not to exclude relief. Prevost v. Gratz, 6 Wheat., 481.

$ 260. Where an estate is insolvent, and distribution of the assets is decreed under the law of Rhode Island, and afterwards new assets come into the hands of the administrator, more than sufficient to pay all the debts, a suit will lie against the administrator for payment in behalf of the creditors, notwithstanding the statute of limitations precludes an original suit against the adıninistrator, for the new assets are a trust fund for the creditors, and the heirs can claim distribution only after all the debts are paid.' Dexter v. Arnold, 3 Mason, 284.

$ 261. Length of time pleaded against the enforcement of a trust in real estate would avail if the trustee has been openly, publicly and constantly in possession, and denying the trust during twenty years. Hunter v. Town of Marlboro, 2 Woodb. & M., 168.

$ 262. Mere lapse of time is no bar to the enforcement of a subsisting trust, and time begins to run against a trust only from the time it is disavowed by the trustee and such a vowal is made known to the cestui que trust. Oliver v. Piatt,* 3 How., 333.

$ 263. The statute of limitations does not operate in cases of trust. Walton v. Coulson, 1 McL., 120.

$ 264. The statute of limitations does not run against an established trust; nor will lapse of time, except under extraordinary circumstances, operate in a case of trust. Piatt v. Oliver, 2 McL., 267.

& 265. Acquiescence by a cestui que trust in a purchase of the trust property by the trustee will not be presumed from lapse of time unless the cestui que trust is shown to have bad notice of such purchase. Prevost v. Gratz,* Pet. C. C., 364.

$ 266. Lapse of time is no defense where there is an unexecuted trust to pay debts which are unpaid in point of fact. Bank of the United States 1'. Beverly, 1 How., 134.

$ 267. In Wisconsin bills to enforce a trust not cognizable at common law must be brought within ten years after the cause of action accrued. Cleveland Ins. Co. v. Reed, 24 How., 284.

$ 268. resulting and implied trusts.- A. devised to B., as residuary legatee, certain real property subject to the payment of a certain sum to C., in trust for the support of three of his children, said sum to be paid to C. three years after the death of A. B. never paid the sum to C. in accordance with the terms of the will, but enjoyed exclusive possession of the estate for thirty years, when he became insolvent, and being adjudicated a bankrupt the estate in question was sold by his assignee. Held, that if B. ever became a trustee at all, it was not as direct trustee, but as an implied or resultant trustee, in which case the statute of limitations would apply, so as to bar any claim for the sum which should have been paid to C. as trustee. In re O'Neale,* 6 N. B. R., 425.

$ 269. In cases of constructive trusts arising out of the fraud of the trustee the length of time after which equity will relieve is left to the equitable discretion of the court and depends

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on the circumstances of each case. The lapse of nine and eleven years held not to be a bar. Mapping v. Hayden,* 5 Saw., 360.

$ 270. It is a rule of law in Pennsylvania that a resulting trust in land, if not sought to be enforced for a period of twenty-one years, and is not re-affirmed or continued, will, under ordinary circumstances, be extinguished. This rule is especially applicable where the party having the legal title has, during the period of twenty-one years, been in notorious and adverse possession, paying the taxes and exercising all the usual rights of ownership, and his title has, for the whole period, been on record in the proper office. King v. Pardee, 6 Otto, 90.

$ 271. Within what time a constructive trust will be barred must depend upon the circumstances of the case, and these are always examinable. Michoud v. Girod, 4 How., 509.

$ 272. Parties, proper and necessary.- Where a bank had become insolvent and had made an assignment of its effects to trustces for the benefit of creditors, the bank was allowed to sue in its own nane, at the instance and for the benefit of the creditors, and the case was the same as if the law permitted the suit to be brought, and the same had been brought, in the name of the trustees. Lyman v. Bank of the United States, 12 How., 225.

$ 273. The N. & B. Railroad made a deed of trust of all its property to trustees for the payment of certain bonds issued. Subsequently the N. & B. road united with the B. & H. road, the consolidated road being known by the latter title, and new trustees were appointed for the new road. Ou bill filed by bondholders of the N. & B. road against both sets of trustees to recover the amount of the bonds, depose the new trustees, for the appointment of a receiver and new trustees, held, (1) that the trustees of the N. & B. road were the proper parties to seek redress of the B. & H. road for the alleged grievances; (2) that if such trustees hail abandoned their trust, or if they had been guilty of misconduct, the proper remedy for complainants was to take appropriate measures to have them removed and others appointed in their places. Scvens v. Eldridge, 4 Cliff., 348.

$ 274. When an action is in its origin instituted in the name of A., for the use of B., the cestui que use is, by the law of Maryland, regarded as the real party to the suit. Gaither v. The Farmers' & Mechanics' Bank of Georgetown, 1 Pet., 37.

$275. J. deposited certain money in a bank, causing it to be entered that he deposited the sum in trust for C. J., however, kept the deposit book, without which the money could not be drawn, and never notified C. that the money had been deposited for his benefit. Held, after J.'s death, that his administrators and not C. were entitled to recover the amount from the bank. Stone v. Bishop,* 4 Cliff., 593.

$ 276. Where one procures insurance on property beld by him in trust, and pays the premium as such trustee, and by the express terms of the policy the insurance money is made parable, in case of loss, to the cestui que trust, and it does not appear that the trustee had any interest in the insurance, or any authority from the cestui que trust to adjust the loss, or to receive the insurance money, the trustee cannot bring the action to recover it. Brown v. Hartford Fire Ios. Co.,* 11 Law Rep. (N. S.), 726.

$ 277. Where there are several trustees who are all implicated in a common breach of trust for which the cestui que trust seeks relief in equity, he may bring his suit against all of them, or against any one of them separately, at his election, the tort being treated as several as well as joint. Heath v. Erie R’y Co., 8 Blatch., 347.

$ 278. There are some cases where a trustee may sue without paming the cestui que trust, but the latter must be named where the object is to divest them of title. In general, cestuis que trust must be made parties. Piatt v. Oliver, 2 McL., 267.

$ 279. In a proceeding in equity to foreclose a mortgage given by the trustee, the cestuis que trust are necessary parties. Ibid.

$ 280. A decree of foreclosure in a suit in which known cestuis que trust are not joined as parties is void as to them. Oliver v. Piatt, * 3 How., 333.

$ 281. Pleading.- At common law a trust in real property could have been declared or created by parol. Since the passage of statutes requiring such trusts to be in writing, it has been uniformly held that the statute did not change the rules of pleading, but only introduced a new rule of evidence. Hence it is still competent to declare or count upon contracts within the statute according to their legal effect without alleging that they were in writing. If the defendant wishes to take advantage of the statute he must plead it. Lamb v. Starr, Deady, 350.

$ 282. In case of delay in filing a bill to establish a trust, the complainant, in order to avoid the objection of stale demand, should set forth in his bill specifically what were the impediments to an earlier prosecution of his suit, how he came to be so long ignorant of his rights, and the means used by the respondent to fraudulently keep him in ignorance, and how and when he first came to a knowledge of his rights. Badger v. Badger, 2 Wall., 87.

8 283. The statute of frauds, which requires that a declaration of trust in lands should be in writing, can only be pleaded by him who has the legal estate, and is sought to be charged with a trust. Oneale v. Caldwell, 3 Cr. C, C., 312,

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$ 284. Evidence – Burden of proof.- An acknowledgment by a beneficiary of a trust, secured by a bond, of part payment of the fund, can be given in evidence. Campbell v. Hamilton, 4 Wash., 93.

$ 285. To establish the existence of a trust the onus probandi lies on the party who alleges it. Prevost v. Gratz, 6 Wheat., 481.

$ 286. Miscellaneous.— A suit in chancery by one who has the prior equity against him who has the eldest patent is in its nature local; and if it be a mere question of title must be tried in the district where the land lies; but if it be a case of contract, trust or fraud it is to be tried in the district where the defendant may be found. Massie v. Watts, 6 Cr., 148.

$ 287. A merchant who indorses the bills of another upon the guaranty of a third cannot, upon the insolvency of the principal debtor and of the guarantee, resort to a trust fund created by the principal debtor for the indemnity of the guarantee for the amount which the guarantee should pay. But the person for whose benefit a trust is created, who is to be the ultimate receiver of the money, may sustain a suit in equity to have it paid directly to himself. Russell v. Clark, 7 Cr., 69.

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VII. RIGHTS AND REMEDIES OF CESTUI QUE TRUST.

SUMMARY — Right to dispose of estate, $ 288.- No disseizin of a trust, $ 289.- One owner ac

quiring a tax title, $ 290.-Statute of limitations, $ 291. & 288. A cestui que trust may lawfully dispose of his trust estate although the title is contested by the trustee. So long as the trust continues equity treats the possession of the trustee as the possession of the cestui que trust. Baker v. Whiting, S$ 292–301.

$ 289. There can be no disseizin of a trust, although the exercise of an adverse possession for a great length of time may in equity bar or extinguish the trust. Ibid.

$ 290. If one of several owners of undivided lands who is acting as the agent of the others acquires a tax title he will be held to hold it in trust for the others. Ibid.

$ 291. In case of a trust of lands nothing less than the period prescribed by the statute of limitations will be sufficient to bar the recovery of the equitable estate. Ibid.

[NOTES.-See SS 302–344.]

BAKER v. WHITING,

(Circuit Court for Maine: 3 Sumner, 475–487. 1839.) STATEMENT OF Facts.-- This was a bill in equity, filed by plaintiffs, to set aside the conveyances by defendants of certain lands in herited from the father of Mrs. Baker. The bill charged a combination between Peavy, Whiting, Jr. and Sr., Talbot and Morse, and others unknown, and that they entered into said tracts of land and disseized the complainants, under the pretext that the said lands were legally assessed for public taxes and duly advertised and sold to said Whiting, Sr., as the highest bidder, and that the said owners neglected to redeem them according to the laws of Maine, whereby the said Whiting, Sr., lawfully became the absolute owner thereof in fee-simple: whereas the contrary is true, and no such tax was lawfully assessed nor was any sale thereof lawfully made. The bill charged other things, which will duly appear in the opinion, and concluded with the usual prayer for general relief. The answer of defendants admitted the title to have originally been in Mrs. Emily Baker, but alleged that it was defeated by a tax sale on August 7, 1821, and further denied all agency for complainants, or for Tidd, or for Stimpson (who had conveyed his interest to Mr. Baker, one of the plaintiffs). The defendant, Whiting, Sr., further stated that he had purchased said lands at a tax sale by one Enoch Hill, subject to the legal right of redemption, but that the lands were never redeemed, and he became the owner in fee-simple of said lands. Answers were also put in by Morse, Talbot and Peavy, stating that they had purchased their interests in said lands from Whiting, Sr. A cross-bill was also filed by Whiting, Jr., Morse and Talbot, charging combina

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