land,-which includes any share, estate or interest therein, whether freehold or chattel (q), and therefore charges on land as well as land itself (r), but excludes mere pecuniary demands not so charged (s),-or rent, which however does not, like the term land, expressly include any share, estate, or interest therein, and therefore would seem not to include charges on rent, as well as the rent itself; (2) a trustee in whom such land or rent is vested, or a person who assumes to act, and acts, in that character (t); (3) an express trust thereof (u), declared by some written instrument (v) or an equivalent (x); and (4) a purchaser, with a conveyance for valuable consideration (y). A trust resulting under an express trust (z) is an ex- Resulting press trust within this provision, and the provision trust, when extends to cases where the trust is for charitable purposes (a). The right to a charge on land first accrues on the conveyance of the charge itself for value and not on a conveyance for value of the land (b). In the case of charges, wherever an estate is created in one person in trust to secure a charge for the benefit of another person, there, so long as the estate is not barred by time, the charge, although independent of the estate and the trust for raising it, it might be barred in equity, (q) Sect. 1. (r) See Ward v. Arch, 12 Sim. 472; The Commissioners of Charitable Donations v. Wybrants, supra; Burrowes v. Gore, 11 H. L. C. 907; Francis v. Grover, 5 Hare, 39. But see Young v. Wilton, 10 Ir. Eq. R. 10; Dundas v. Blake, 11 Ib. 145. (8) See Dundas v. Blake. (t) 3 De G., F. & J. 72. (u) Dickenson v. Teasdale, 1 De G., J. & S. 52. (v) Petre v. Petre, 1 Drew. 117. (x) 3 De G., F. & J. 72. (y) Jacquet v. Jacquet, 27 Beav. 332. L. (z) Salter v. Cavanagh, 1 Dru. & Wal. 668. See also Byrne v. Robinson, 1 Ir. Eq. R. 333; King v. Denison, 1 Ves. & B. 260. (a) Att.-General v. Magdalen College, Oxon, 18 Beav. 223; 6 H. L. C. 189, S. C.; Att.-General v. Stephens, 6 De G., M. & G. 111; Att.-General v. Davey, 4 De Gex & J. 136; Att.-General v. Payne, 27 Beav. 168. Vide ante, p. 295; Commissioners of Charitable Donations v. Wybrants, 2 Jo. & Lat. 182. (b) See Commissioners of Charitable Donations v. Wybrants, 2 Jo. & Lat. 182. K K express. Accruer of right to charges. Charges on land secured by trust and title to land not barred, -or barred. Constructive trusts excluded. may be raised for the benefit of the person entitled; and whenever the trustee, having the right, executes the trust by taking possession, the right of the cestui que trust immediately accrues, and he is entitled to the full benefit of the trust (ƒ). But if the estate so cannot be enforced (g). created be barred, the charge Accessorium sequitur principale. A conveyance for value, however, by the beneficial owner of the land or the rent subject to the trust, especially if he himself be the trustee, will not affect the right of the cestui que trust of the charge (h). The right of the cestui que trust, however, does not accrue until he himself becomes entitled to his interest in possession (i). The trust, as we have seen, must be express, and therefore where the trust is constructive and to be made out by circumstances, or is not a resulting trust under an express trust (k), this provision does not apply; and if the possession of such a constructive trustee has continued for more than twenty years, he may set up the statute against the party who, but for the lapse of time, would be the right owner. The section has no application where the contest is between the cestuis que trust and third persons not being express trustees, but only constructive ones (1). A mere charge of estates devised to a person benefi (f) Snow v. Booth, 2 Jur., N. (g) 2 De G., M. & G. 597. See also Burrowes v. Gore, supra; 2 J. & Lat. 198. (h) See 2 Jo. & Lat. 198. (i) Thompson v. Simpson, 1 Dru. & War. 459; Stewart v. Marquis of Conyngham, 1 Ir. Eq. R., N. S. 534. (k) Supra, p. 296. (1) Petre v. Petre, 1 Drew. 371; Toft v. Stephenson, 7 Hare, 1; 1 De G., M. & G. 28, S. C. on appeal; Hunt v. Bateman, 10 Ir. Eq. R. 360; Dundas v. Blake, 11 Ib. 138; Jacquet v. Jacquet, 27 Beav. 332; Dickenson v. Teasdale, 1 De G., J. & S. 52. cially, with a direction to executors to raise a deficiency in personal estate, is not an express trust within this provision (m). purchaser for Apart from the personal liability of the trustee to the Accruer cestui que trust, presently to be noticed, the right of the against only latter first accrues against only a purchaser for valuable value. consideration and any person claiming through him, that is, deriving title (n), and is preserved for only twenty years from the time of the conveyance to such purchaser, whilst, as before the statute, as against the trustee and any person claiming through him without value, and whilst the relation between them continues (o), the right of the cestui que trust, in general, remains unaffected by time (p). The statute was not designed to interfere with the well-established principle of equity that as between an express trustee and cestui que trust length of times creates no bar (q). A lessee is a purchaser for valuable consideration (r); and on the grant of a lease by a trustee, the right of the cestui que trust first accrues at the time of the making of the lease (s). c. 27, of such It is apprehended that even since the 3 & 4 Will. 4, Position, since c. 27, a purchaser for value without notice of an express a purchaser trust, and who has acquired the legal estate, but has without notice. been in possession less than twenty years, is, in equity, (m) Dickenson v. Teasdale, 1 De G., J. & S. 52. (n) Petre v. Petre, 1 Drew. 117. (0) Vide ante, Chap. II. Sect. III. of this Book. Beav. 384; Young v. Lord Water- (q) Hunt v. Bateman, supra. (p) Att.-General v. Flint, 4 Hare, 147; Daly v. Kirwan, 1 Ir. Eq. R. 163; Dillon v. Cruise, 3 Ib. 83; Hunt v. Bateman, 10 Ib. 360; Francis v. Grover, 5 Hare, 39; Phillips v. Mannings, 2 Myl. & C. 309; Petre v. Petre, 1 Drew. (8) Att.-General v. Davey, 4 317; Evans v. Bagwell, 2 Con. & De Gex & J. 236; Att.-General L. 617; Tyson v. Jackson, 30 v. Payne, 27 Beav. 168. Personal liability of trustee remains unaffected; still entitled to the same protection as in such cases he was before the statute. Although by this section 25 the right of the cestui que trust first accrues on the conveyance by the express trustee to a purchaser for value, yet the right may also first accrue, not only against the trustee, without any conveyance, as mere possession of the land, or receipt of the rent by a third person, without value, and without any notice of the trust and by others claiming under him for twenty years, either at law (r) or in equity (s), but also, through such trustee, against the cestui que trust (t). The right, when it first accrues against the purchaser for value, accrues against him alone, for the recovery of the land or the rent itself (u). The personal liability of the trustee from whom such purchaser claims and of all persons claiming under such trustee, whether for valuable consideration, or as mere volunteers, to the cestui que trust, for the breach of trust is unaffected by this statute, and is to be determined by the general doctrines of equity applicable in such cases. It may be a question, said Brady, L. C. (x), whether any effectual relief can be had against a trustee who has conveyed trust property to a purchaser for a valuable consideration without any concealed fraud, and without claim preferred by the cestui que trust on his own behalf for a period of twenty years, whereby the title of the purchaser is irrevocably confirmed. It may be the inevitable result that as there could not then be a suit to recover the land, and the trust could no longer be executed, the only remedy which would be open would be for the breach of trust as against the trustee or against his assets. (r) Doe d. Jukes v. Sumner, 14 M. & W. 39; Melling v. Leake, 16 C. B. 652. (8) See 2 Jo. & Lat. 189. (t) Vide ante, p. 293. (x) Malone v. O'Connor, 9 Ir. Eq. R., N. S. 478. but is to be enforced But although no time runs as between the cestui que trust or beneficiary and the trustee upon an express within reasontrust, so as to bar the remedy of the beneficiary, yet, able time. with respect to claims made by him against a trustee, the general rule of equity that encouragement is not to be given to stale demands is equally applicable, and in taking an account for the purpose of charging a trustee with personal liability every fair allowance ought to be made in favour of the trustee, if it can be shown that the claim sought to be enforced is one which arose many years ago, and one of the nature and particulars of which the beneficiary was, at the time when it arose, perfectly cognizant (y). Marriage, as well as money, is a valuable considera- Marriage a tion (z) within this provision. The right to recover in equity land or rent of which any person, or any one claiming through any person, who has been deprived of it by concealed fraud, first accrues at and not before the time when such fraud is or with reasonable diligence may be known or discovered (a). In this provision the legislature has adopted the doctrine of courts of equity, that, in cases of concealed fraud, the person defrauded is not to be affected by it until he has had a reasonable opportunity of discovering the fraud (b). valuable consideration. Accruer of right on concealed fraud. Section 26. Fraud is a secret thing and may remain undiscovered Time until for a length of time, and until discovery the title to fraud. discovery of avoid it does not completely arise; and pending the concealment of the fraud time ought not in conscience to operate; the conscience of the person committing the fraud being so affected that he ought not to be allowed to avail himself of the length of time, although in some cases under certain circumstances he may be (y) M'Donnell v. White, 11 H. L. C. 579. (z) Petre v. Petre, 1 Drew. 117. (a) Sect. 26. (b) Underwood v. Lord Courtown, 2 Sch. & L. 41; Manby v. Bewicke, 3 K. & J. 342. |