15. CHAPTER I. THE DEFINITION OF A TRUST. A TRUST cannot be more exactly defined than in the terms employed by Lord Coke for the definition of a use (a), viz. A confidence reposed in some other, not issuing out of the land, but as a thing collateral, annexed in privity to the estate of the land, and to the person touching the land, for which cestui que use has no remedy but by subpoena in Chancery (b). 1. It is a confidence; not necessarily a confidence expressly reposed by one party in another, for it may be raised by implication of law; nor need the trustee of the estate be actually capable of confidence, for the capacity itself may be supplied by legal fiction, as where the administration of the trust is committed to a body corporate; but a trust is a confidence, as distinguished from jus in re and jus ad rem, for it is neither a legal property, nor is it a legal right to property. 2. It is a confidence reposed in some other; not in some other than the author of the trust, for a person may convert himself into a trustee, but in some other than the cestui que trust; for as a man cannot sue a (a) Burgess v. Wheate, 1 Ed. 248, per Lord Keeper Henley; Lloyd v. Spillet, 2 Atk. 150, per Lord Hardwicke. subpoena against himself, he cannot be said to hold upon trust for himself (c). If the legal and equitable interests happen to meet in the same person, the equitable is for ever absorbed in the legal; as if A. die seised of the legal estate ex parte paterná, and of the equitable ex parte materná, the heir of the maternal line has no equity against the heir of the paternal (d). But the rule holds only where the legal and equitable estates are co-extensive and commensurate; for if a person be seised of the legal estate in fee, and have only a partial equitable interest, to merge the one in the other might lead to a violation of rights; as if lands be conveyed to A. and his heirs, in trust for B. in tail, with remainder to A. in fee, should the equitable remainder limited to A. be converted into a legal estate, it would not be barrable by B.'s equitable recovery (e). Lord Alvanley upon this case observed-"The objection to the recovery is, that at the time it was suffered the remainder in A. was not an equitable, but a legal remainder ; and therefore, according to the doctrine established in this Court that in order to make a good equitable recovery the remainders must be equitable, the recovery is void as to him. It was maintained, that where there is in the same person a legal and equitable interest, the former absorbs the latter. I admit that where he has the same interest in both, he ceases to have the equitable (c) Goodright v. Wells, Doug. solution; Harmood v. Oglander, 8 747, per Lord Mansfield. Ves. 127, per Lord Eldon. (d) Selby v. Alston, 3 Ves. 339; Goodright v. Wells, Doug. 747, per Lord Mansfield; Wade v. Paget, 1 B. C. C. 363; S. C. 1 Cox, 74; Philips v. Brydges, 3 Ves. 126, per Lord Alvanley ; Finch's case, 4 Inst. 85, 3rd re (e) Philips v. Brydges, 3 Ves. 120; Robinson v. Cummings, Rep. t. Talb. 164; S. C. 1 Atk. 473; and see Boteler v. Allington, 1 B. C. C. 72; Merest v. James, 6 Mad. 118. estate, and has the legal estate, upon which the Court will not act, but leaves it to the rules of law; but I do not by any means admit, that, where he has the whole legal estate and a partial equitable estate, the latter sinks into the former. It has been very ably argued, that there seems an absurdity in saying he had an equitable remainder for himself, where he had the whole legal fee; but it is much more absurd to say, he had a legal remainder. It is impossible-it would be a solecism-to state to a lawyer that he could have an estate in fee with a remainder in tail expectant in law upon it; but there is no such absurdity in saying he might have the whole legal estate, and a limited interest in the beneficial interest of that estate. When I am told that legal and equitable estates cannot subsist in the same person, it must be understood always with this restriction-that it is the same estate in law and in equity; for then there is no person upon whom the Court can act— the equitable estate is absorbed the better phrase is, that it no longer exists: but when for the purposes of justice it is necessary it should exist, that circumstance shall not put a party entitled into a worse condition (f)." In the case of a mortgage in fee it is said, a man and his heirs are trustees for himself and his executors (g); but the meaning is no more than this, that, until a release, or foreclosure of the equity of redemption, the interest of the mortgagee is of the nature of personalty, and passes on his death to his personal representative; the heir, therefore, takes the estate upon trust for the executor; a release or foreclosure, unless it happen in the lifetime of the mortgagee, comes too late after his (f) Philips v. Brydges, 3 Ves. 125-127. C (g) Kendal v. Micfield, Barn. 50, per Lord Hardwicke. decease to alter the character of the property, for, as the tree falls, so it must lie (h) (4). 3. A trust is not issuing out of the land, but as a thing collateral to it. A legal charge, as a rent, issues directly out of the land itself, and therefore binds every person, whether in the per or post, whether a purchaser for valuable consideration or volunteer, whether with notice or without; but a trust is not part of the land, but an incident made to accompany it, and that not inseparably, but during the continuance only of certain indispensable adjuncts; for 4. A trust is annexed in privity to the estate, that is, must stand or fall with the interest of the person by whom the trust is created; as, if tenant for life declare a trust in fee, the determination of the life estate must put an end to the trust. And so, if lands be limited to A. and his heirs, with a springing use to B. and his heirs, a trust declared by A. must necessarily expire with the shifting of the use to B. And if the trustee die and leave no heir, the lord who takes by escheat is not a privy to the estate upon which the trust was ingrafted, and therefore will not be bound by it, but will hold beneficially. And upon the same principle, if the trustee be disseised, the tortious fee is adverse to that impressed with the trust, and therefore the equitable owner cannot (h) Canning v. Hicks, 2 Ch. Ca. 187; S. C. 1 Vern. 412; Tabor v. Grover, 2 Vern. 367; S. C. 1 Eq. Ca. Ab. 328; Clerkson v. Bowyer, 2 Vern. 66; Gobe v. (4) But if the heir foreclose, or obtain a release of the equity of redemption, he may keep the estate, and pay the executor the debt only. Clerkson v. Bowyer, 2 Vern. 67, per Cur. sue the disseisor in Chancery, but must bring an action against him at law in the name of the trustee (i). During the system of uses, and also while trusts were in their infancy, the notion of privity of estate was not extended to tenant by the curtesy, or in dower, or by elegit, or in fact to any person claiming by operation of law, though through the trustee; but in this respect the landmarks have since been carried forward, and at the present day a trust follows the estate into the hands of every one claiming under the trustee, whether in the per or post. A lord by escheat and a disseisor are the only persons not bound: the lord, because he claims by title paramount; a disseisor, because his possession is ad verse. 5. A trust is annexed in privity to the person. To entitle the cestui que trust to relief in equity, it is not only necessary he should prove the creation of the trust, and the continuance of the estate supporting it, but should also make it clear that the assign is personally privy to the equity, and therefore amenable to the subропа. If it can be shown that the assign had actual notice, then, whether he paid a valuable consideration or not, he is plainly privy to the trust, and bound to give it effect; but if actual notice cannot be proved, then, if he be a volunteer, the Court will affect him with notice by presumption of law; but if he be a purchaser, the Court must believe, that, having paid the full value of the estate, he was ignorant, at the time he purchased, of another's equitable title. A purchaser for valuable consideration without notice is therefore the only assign against whom privity annexed to the person cannot at the present day be charged. (i) Finch's case, 4 Inst. 85, 1st resolution; and see Gilbert on Uses, edited by Sir E. Sugden, p. 429, note 6. |