Effect of the modification. Purchaser for value may lose the advantage of the modifica tion. tee and cestui que trust, as between the grantee and the cestui que trust (b), but not as between the trustee and the cestui que trust (c), is after the lapse of twenty years determined. The effect of section 25 is to save the right of the cestui que trust against the trustee, but not against purchasers for value from the trustee (d). This section, however, said Lord Wensleydale (e), is certainly not very happily expressed; but I suppose it means that the remedy of the cestui que trust for an abuse of an express trust vested in the trustee continues against him, and those claiming under him, though the estate is conveyed away, and is not barred by the expiration of the statutable period as against him, though as to the purchaser from him, for a valuable consideration, the right to sue begins from the date of the conveyance to the purchaser, and therefore is barred in ordinary cases by the expiration of twenty years from that time, and, where disabilities occur, by the expiration of the longer period allowed in such cases. If before the period of limitation expire, a purchaser for value become an express trustee of the property, he cannot avail himself of the statute as a defence against a claim by his co-trustees on behalf of the cestui que trust, even after the period has expired, because that would be allowing the trustee to take advantage of the statute against his cestui The time would cease to run from the time of the purchaser thus becoming a trustee, or the trust would be then revived in him. And, although a jury might presume an ouster by such trust. que (b) Sect. 25; Mag. Coll. Oxon. v. Att.-Gen., 6 H. L. C. 189; Att.-Gen. v. Payne, 27 Beav. 168; Att.-Gen. v. Davey, 4 De Gex & J. 136. (c) Sect. 25. See Att.-Gen. v. Flint, 4 Hare, 147; Petre v. Petre, 1 Drew. 393; 2 De Gex & (d) 6 H. L. C. 211. trustee, so as to enable the other trustees to recover in ejectment, yet a court of equity will not, in the case of a charity at least, speculate what a jury might do under such circumstances, but is bound, as to him, to sustain its jurisdiction, and will enforce against him the trust (f). Thus a purchaser for value may lose the benefit of the protection to which, under this provision, he would have been otherwise entitled. without con land or rent If, since this statute, a person acquire, and for twenty Persons having years be permitted to retain, the possession of land or possession, rent held upon an express trust, but does not acquire veyance, of them by conveyance from the trustee, the case would held on exseem not to be within the section 25, but as to the press trust. trustee within the section 2, and as to the cestui que trusts within the section 24. Those equitable rights of cestuis que trust, which are distinguishable from their equitable rights under express trusts, are the subject of the section 24, whilst the latter rights are the subject of the section 25. By the former section the cestui que trust, after the lapse of twenty years, with an allowance for disabilities, if any, is barred; and if the claim be under the trustee and by a conveyance for value, the cestui que trust, after the same lapse, and with a like allowance, is equally barred (g). volunteers. Since this statute volunteers, however, taking a con- Taking conveyance of property subject to an express trust, either veyance as with or without notice of the trust, are still trustees and subject to the trust as before the act (h). third persons. When this relation subsists with reference to either The relation the inheritance of land or rent, or to a chattel interest as respects carved out of it absolutely, or for raising out of the land or rent a charge upon it, the effect and result (f) See Att.-Gen. v. Flint, 4 Hare, 147. (g) 6 H. L. C. 215. (h) See Bell v. Bell, Lloyd & G. 44; Scott v. Scott, 4 H. L. C. In cases of charge, in any of these cases, as between the trustee and the cestui trust themselves, would be the same. But as que between them on the one hand, and third persons claiming the inheritance on the other hand, some important distinctions and considerations are to be noticed. Thus, in the case of a trust of the inheritance itself, or of the inheritance subject to a trust to raise out of it a charge thereon, the trustee at law, and the cestui que trust in equity, or the former only, may, after the requisite period, be absolutely barred. But in the case of the chattel interest in either of the supposed instances, the relation of cestui que trust is created, not only between the person beneficially entitled to such interest, and the person to whom it is immediately given, but also between the owner of the inheritance and this last person, and, therefore, the possession by such owner is the possession of such person, and as against him operates nothing, and consequently has no effect as against his cestui que trust, the person absolutely entitled to the term beneficially, or to the charge or upon the term on the charge itself (i). In one case, however (k), the annuity and arrears were secured by an existing trust term, and yet, as against a subsequent incumbrancer, the claim for the arrears was limited to six years. But the arrears beyond that amount were claimed under the covenant to pay the annuity as a specialty debt, within the 3 & 4 Will. 4, c. 42, and not under the term and trusts. If the trustee of the term had entered he would have been entitled to raise for his cestui que trust the whole arrears (1). Lord St. Leonards, C., said he did not think the au (i) Young v. Lord Waterpark, 13 Sim. 202; S. C., on appeal, 10 Jur. 1; stated more fully 6 Jur. 656; Blair v. Nugent, 9 Ib. 400; Hunt v. Bateman, 10 Ib. 360; Cox v. Dolman, 2 De Gex, M. & G. 592; Burrowes v. Gore, 6 H. (k) Hunter v. Nockolds, 1 Mac. & G. 640. (1) See Cox v. Dolman, supra. thority of Hunter v. Nockolds could be quoted against that of Young v. Lord Waterpark (m); and Stuart, V.-C., said arguendo (n), that Hunter v. Nockolds is overruled by Cox v. Dolman, and referred to Young v. Lord Waterpark. Although every charge imposes a burden, but may not create a trust (o), and a person with a mere naked authority to raise a charge on, but having no estate or interest in, land or rent is not an express trustee (p), within the 3 & 4 Will. 4, c. 27, yet a charge may be imposed upon property in such a way as to create, in the person taking the property, the obligation as a trustee of giving effect to the charge and also so as to create an express trust, and between such person and the person entitled to the charge, the relation of trustee and cestui que trust. Thus estates were devised to trustees and their heirs upon trust to convey such estates to A. for life, but subject to and charged with annuities in favour of charities, two of whom were corporations, and subject thereto to the first and other sons successively of A. in tail. Whether the estates are or are not conveyed the provision for the charities is an express trust, and the relation of trustee and cestui que trust between the trustees, or the beneficial devisees of the estates, and the annuitants, is created (q). when the relation is, and when it is not created. may originate sulting trust under a re A resulting trust may be an express trust, under The relation which this relation may originate. Thus, where the trusts expressly declared by an instrument do not exhaust the whole interest in the property, but the instru (m) See S. C. supra. (n) Blower v. Blower, 5 Jur., N. S. 33. (0) Hughes v. Kelly, 3 Dru. & War. 48; Harrison v. Duignan, 2 Ib. 295; Francis v. Grover, 5 Hare, 1; Chappell v. Rees, 1 De Gex, M. & G. 393; 16 Jur. 417; Hunt v. Bateman, 10 Ir. Eq. Rep. 360; Dundas v. Blake, 11 Ib. 138; Dickenson v. Teasdale, (p) Dickenson v. Teasdale, supra. (4) The Commissioners of Donations v. Wybrants, 2 Jo. & Lat. 182. On this case see 6 H. L. C. 209. as an express one. Salter v. Cavanagh. And under express trusts of equitable interests. The relation, as to advowsons and other matters, not altered. ment, on the face of it, shows a trust resulting by operation of law, such resulting trust is an express one within the 3 & 4 Will. 4, c. 27, and under which this relation between the trustee and the person entitled by reason of that trust originates (r). The case of Salter v. Cavanagh was one of resulting trust, under a will, for the heir of the testator, and seems to have been decided mainly on the ground that as the trustee, in relation to the trusts expressly declared by the will, was an express trustee, and was not intended to be benefited, he must be considered, in relation to the resulting trust, not merely a constructive but an express trustee also. Sir E. Sugden, L. C., referring to this case, said (s), "it seems to have been held that an implied trust is an express one within the act, where it arises upon the face of the instrument and is not to be made out by evidence; but upon this point I am not called upon to give any opinion." The relation is of as much force in express trusts of equitable interests as in express trusts of legal interests. In the case of equitable interests, the legal estate being in other persons, the trustees cannot enter into possession of the property, but the principle is the same (†). A purchaser for value of an advowson subject to an express trust, with direct notice of the trust, is, however, notwithstanding the 25th section, still liable to the trusts. For that section, in terms, embraces land and rent only, and these terms, according to the meaning assigned to them by the first section, do not include advowsons (u). This relation in all cases of express trust of those subjects of property which are not embraced by the (r) Salter v. Cavanagh, 1 Dru. & Wal, 687. (8) 2 Jo. & Lat. 196. III. (t) 23 Beav. 635; 29 Ib. 187. |